OH v Driessen
[2015] ACTSC 148
•16 June 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | O H v DRIESSEN |
Citation: | [2015] ACTSC 148 |
Hearing Date(s): | 4 February 2015 |
DecisionDate: | 16 June 2015 |
Before: | Refshauge J |
Decision: | 1. The appeal is upheld. 2. The sentence and orders imposed by the Childrens Court on 27 August 2014 be set aside. 3. OH be re-sentenced. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeal against sentence – Appeal from the Childrens Court – Sexual offences on a child under the age of 10 years –Manifestly excessive – Differentiation in the approach to punishment of offences by adults and juveniles – Recording of conviction – Child Sex Offenders Register – Reporting conditions – Individualised justice – Age as a mitigating factor – Consideration of offences for which the person to be sentence has not been charged – Breach of trust – Irrelevant consideration |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 69 Crimes Act 1900 (ACT), s 62 Criminal Code 2002 (ACT), ss 25, 26 |
Cases Cited: | Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 R v BM (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 360 of 2011, 409 of 2011 and 21 of 2012, 14 February 2012). |
Texts Cited: | Kate Warner, Sentencing in Tasmania (Federation Press: Sydney, 2002) 2nd ed |
Parties: | O H (Appellant) Senior Constable D Driessen (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Mr J Hiscox (Respondent) |
| Solicitors Paul Edmonds Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 76 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Childrens Court Before: Magistrate Fryer Date of Decision: 4 August 2014 and 29 August 2014 Case Title: OH v Driessen Court File Number(s): CC 24 of 2014 CC 25 of 2014 CC 27 of 2014 |
Refshauge J:
On 8 November 2013, a few days before the 14th birthday of the appellant, OH, he committed three sexual offences on a child under the age of 10 years.
He was summonsed to appear in the Childrens Court on 28 February 2014 where he entered pleas of not guilty. He had, it appears, been charged with four offences at that time. He was later charged with a further offence. Those latter two offences were withdrawn on 29 August 2014, though it appears that it was known to both parties sometime before that date that this was to happen.
On 27 August 2014, the learned Sentencing Magistrate convicted OH and made a Good Behaviour Order for two years with a probation condition on each charge.
OH now appeals against the sentence imposed.
Jurisdiction
Under s 287 of the Magistrates Court Act 1930 (ACT), the Childrens Court is the name by which the Magistrates Court is known when exercising jurisdiction under s 288 of that Act, which jurisdiction includes criminal proceedings against a person who was under 18 years old at the time of the alleged offence.
By s 69 of the Court Procedures Act 2004 (ACT), the provisions regulating procedure in the Magistrates Court apply to the Childrens Court, which include the provisions relating to appeals. In particular, Pt 3.10 of the Magistrates Court Act confers jurisdiction on this Court to hear and determine appeals from the Magistrates Court (and, therefore, the Childrens Court) against sentences imposed by it and Div 3.10.2 regulates these appeals.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to those appeals. They, therefore, apply to this appeal. They may be summarised as follows.
Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That also applies to an appeal from a sentence imposed by the Childrens Court. That often has to be addressed at the conclusion of the appeal.
The Notice of Appeal
OH filed a Notice of Appeal on 11 September 2014. It was amended by leave on 4 February 2015.
The grounds of the appeal as amended were as follows:
(i) The learned Magistrate failed to have regard to the principle of individualised justice.
(ii) The sentence appealed from is manifestly excessive, having regard to the mandatory registration of the appellant on the Child Sex Offenders Register upon conviction; and
(iii) The learned Magistrate erred by treating as a separate aggravating factor the fact that the appellant and victim were step-siblings, when the breach of trust involved in the commission of the offence had already been dealt with as an aggravating factor.
(iv) The learned sentencing Magistrate did not give sufficient reasons for rejecting the submission made by the young person’s solicitor to deal with his charges under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
The Notice of Appeal made it clear that what was challenged was the recording of a conviction. This, it became clear, was because of the consequences of doing so. I shall address that later.
The Notice of Appeal also indicated that OH would seek to put further evidence on the appeal. This was said to be related to the risk of re-offending and whether “it is necessary or desirable for [OH] to be placed on the Child Sex Offenders Register.” In the event, no such further evidence was adduced.
The facts
The facts asserted by the prosecution were that OH had two younger siblings. His father then entered a relationship with a woman who was the adoptive mother of the complainant, EH, regarded as OH’s step-sibling though not strictly so. EH was born in 2005, being about 5 years and 5 months younger than OH.
On 8 November 2013, EH and her mother went to the home where OH and his father lived. They planned to stay the night. OH, EH and OH’s younger brother were left together in the home. There was no evidence as to who else was at home at the time.
EH went into OH’s bedroom and started reading and trading Pokémon cards. EH wanted to trade three cards in particular and OH said that she could have the cards if she “let him do this”. He put his hand on her upper thigh, under her dress and started to move his hand up her leg towards her underpants.
EH told him to stop, but he said “Oh, come on” and she said “OK, but only to my undie line”. EH said that his hand felt warm and quite nice on her leg, but it felt weird. OH, however, moved his hand up EH’s leg to her underwear near her vagina; he left it there for a short time. She said “Time’s up” and he removed it.
EH then went to leave the room, but OH said, “No, don’t get out” as he thought she was going to tell her family and he did not want that.
OH then told EH to stand up and pull her pants down and she agreed. She stood up, OH pulled down her pants to just below her knees and she sat on the bed again. OH knelt on the floor in front of EH and placed his hand on the inside of her legs near her knees. He then said, “Open up” and started to push her legs apart. He then moved his hands up inside her legs, stopping either side of her vagina and rubbed the outside of her vagina with his fingers and thumbs. EH did not feel his fingers go inside her vagina. He asked her if it felt good and she said that it felt weird at first but started to feel good. After a while, EH told OH to stop but he said, “No” and continued to rub her vagina. This was the count of committing an act of indecency on a young person under the age of 10 years.
Shortly after, OH stopped rubbing and inserted his index finger into EH’s vagina to about the middle knuckle. EH felt the finger in her vagina and it felt painful; she started to scream and moan but OH “shushed” her while he wriggled his finger before EH told him to pull it out, which he did.
OH then told her that “hopefully” it would not hurt the second time and he again inserted his finger into her vagina and wiggled it about for some five seconds. EH told him to stop and he pulled his finger out. EH told him that it did hurt the second time.
OH, still kneeling in front of EH, put his head in between her legs and began licking her vagina. He continued licking for about three minutes and then stopped. This was the count of engaging in sexual intercourse with a young person under the age of 10 years.
OH then told EH that her “vagina hole [was] opening up and it is ready to have something stuck in it”. OH then pulled his pants down and asked EH to suck his penis. She said, “No way, that’s unhygienic”. OH replied, “That’s reasonable”. He then made an action which EH took to mean that he was going to put his penis in her vagina and said, “No [OH]. I don’t want that sperm in me. No [OH], no way are you going to do that”.
OH said, “Come on, just a quick one” and told EH to stand up, which she did. He told her to come closer and to stop when she was about 10cm away. He then took hold of EH’s hips and moved his body towards her so their pelvises were close together and put his penis between her legs and against her vagina. EH said that his penis felt quite hard. OH tried a few times to put his penis into her vagina but could not. EH started moaning because it really hurt and OH gave up, pulling his pants back up. This was the count of attempting to engage in sexual intercourse with a young person under the age of 10 years.
Subjective circumstances
A short Pre-Sentence Report, directed mainly at dispositions available and assessments for them, was prepared by Youth Justice Case Management for the proceedings and a very comprehensive report was prepared by a psychologist. Both were admitted into evidence in the proceedings. From this material, it was possible to make the following findings.
OH was born in November 1999 at an induced but uneventful birth with no medical concerns for him, though his mother suffered from post-natal depression as a result.
He has two younger siblings, who were both born following a pregnancy which resulted in a stillborn sister. His parents separated when OH was 10 years old. His mother has not re-partnered but his father re-partnered with EH’s mother fairly quickly, which OH found difficult.
During his first three years, OH lived in Leeton, NSW and on about three occasions he would hold his breath, lose consciousness and start fitting. Investigations revealed nothing and the behaviour has not been repeated.
OH does not remember the stillbirth of his sister, though he had expressed excitement at the prospect of having a sister come home. OH’s parents adopted an attitude of “moving on” and containing their grief as much as possible. It was difficult to say what effect this had on OH. The family had an attitude of resilience as well as a “wider circle of support”.
OH’s life appears otherwise unremarkable. He was good at making friends and was active as a child. There were no behavioural problems at school, though he occasionally was in trouble for talking too much.
He attended the Rudolph Steiner School but became disillusioned and transferred to Stromlo High School which he was attending at the time of the offences.
There was a difference of opinion between OH’s parents about the quality of his peer group, his father having some concerns about them but not to the extent of being aware of any seriously concerning behaviour. There had, however, been no behaviour of the kind constituting these offences, so far as his parents were aware.
The so-called “Agreed Statement of Facts”, however, indicated the following:
16.... [EH] also told her mother about two other times the young person has tried to have sex with her earlier that year by trying to put his penis in her vagina in a similar way to the previous night. Once while they were in New Zealand on a holiday and once while they were at Potato Point in New South Wales (NSW). The complainant was afraid to tell her mother because the young person said that she would, ‘never ever get the Pokémon cards back’.
17.On both those occasions the young person waited until the other family members were not there before attempting to have penile/vaginal sex with [EH]. On both occasions he was interrupted by a family member and stopped, quickly covered himself up, and told [EH] to pull her pants up.
There were two occasions when OH had been in trouble at school, one when he brought a knife to his primary school and once when he hit a person who had been “picking on” his friend and refused to stop when OH told him to do so.
OH still wet the bed occasionally, about twice a week in the two months prior to the psychological assessment. A medical examination revealed no physiological cause.
OH had also stolen money from his parents on several occasions over the last few years, including spending $4,000 through an iTunes account using his father’s credit card details. His mother also added that he had an issue with honesty and would “lie straight to your face”.
This is a problematic issue to raise. As an offence or offences with which OH has not been convicted nor even charged, they cannot be taken into account for the purposes of sentencing. As held in R v De Simoni (1981) 147 CLR 383 at 389, an offender should not be punished for an offence of which he or she has not been convicted.
Matters such as these allegations are impermissible for the purposes of sentencing. See, for example, R v Traiconi (1990) 49 A Crim R 417 at 419.
There is some controversy about the precise approach on this issue. I shall address that further below (at [117]-[125]).
OH’s parents also said that the residence arrangements for him, where he spent separate time with each of them, had led to a degree of him receiving “mixed messages”. OH said he enjoyed spending time with both his parents, who had “different things to offer as parents” and that his father was more relaxed than his mother, with fewer rules, such as about watching television or playing games, though his mother was “softer” than his father and he could get away with more with her.
There appeared no mental health issues affecting OH and his parents denied that they had any significant psychological or mental health issues.
OH said that he had occasionally taken a sip of alcohol but did not use illicit drugs. He was “pretty fit and a natural at sport and being social”. He was said to be polite, confident and social. More recently, however, his behaviour had been somewhat challenging and his relationship with his mother had been strained over these proceedings.
OH said he was in a relationship with a girl about his own age but it was not a sexual relationship. He stated, too, that he had not been a victim of sexual abuse.
The psychological assessment was detailed and extensive, being set out in eight pages of the psychologist’s report. It is not easy to summarise helpfully. Points of significance, however, were:
· OH was social and open and willing to participate in the assessment process;
· he was able to identify the impact of the offences had on “multiple people” and that the implications of his behaviour extended beyond his own experience of consequences;
· his cognitive capabilities were in the average range but he had an aptitude for logical problem solving and above average fluid intelligence which would be an asset for his psycho-education in engaging in safe, healthy relationships and contrary to his behaviour;
· his behaviour was suggestive of a fundamental lack of maturity and of avoiding accountability;
· he had significant family support, though with some inconsistently applied discipline;
· OH tended to minimise or deny responsibility about the seriousness of his behaviour;
· he had a level of impulsivity and possibly a mild conduct disorder; and
· he expressed empathy as to the impact on EH and on his parents of his offending behaviour, but lacked some insight into the direct impact of the offence on EH.
The psychologist’s report evaluated an extensive range of risk factors; the most significant was the duration of his sex offending history of which it was said:
Compared to other boys who have committed or been accused of sexual behaviour that causes harm, [OH] scored high on this factor as he has been known to commit sexual contact offenses [sic] that extend over a period of greater than six months involving one or more victims.
Having considered these matters, the psychologist’s report concluded:
In summary, there was little or no evidence in relation to of [sic] 23 of the risk factors; 4 risk factors were moderately significant; and 1 risk factor was highly significant in estimating [OH’s] overall level of risk...
Given the foregoing it is believed that [OH] poses a Low-to-Moderate Risk of Harm to vulnerable children at this point of time in his rehabilitation. Each of [OH’s] activities should be closely monitored by an adult who is aware of the risk he poses to children when vulnerable children are in his presence. This includes both of [OH’s] siblings.
On the basis of this assessment, it is believed that [OH] may respond well to treatment, however there is some concern about his level of honesty and ability to take full responsibility for his actions, which would impact on his therapeutic progress. [OH] would need to be supported by his parents to maintain his accountability and integrity so that psycho-education and treatments are effective and not engaged with in a superficial manner. Both [OH’s parents] will also require some psycho-educative sessions to highlight the need for vigilance – particularly in regard to the vulnerability of their own children. It is appropriate that the case manager from Youth Justice continues to liaise with [OH’s parents] about their practices in this regard.
A range of recommendations were made, which would, in fact, be consistent with constant supervision of OH, in particular in relation to his siblings.
OH read out to the Court an apology, to particularly EH and her mother, as follows:
Your Honour, I would like to take the time to apologise to the countless people who I have hurt because of my selfish actions. Firstly, I would like to apologise to [EH]. What I did to her was terribly wrong and selfish and no-one should ever have to be put through anything like that because of what happened to you. I don’t know how exactly you would be feeling after these events, but I could imagine it would be fairly bad and disheartening. I am deeply sorry for what I did and that I hope that you will recover well. I wish I had never done what I did.
Secondly, I would like to apologise to [EH’s mother]. I have been told that you have been affected the most after what I did. Again, I can only imagine what you are feeling right now; stress, pain and other countless feelings. I am truly sorry to have put you and [EH] through this. No mother should ever have to go through this. And, lastly, I would like to apologise to my mother and father. You have helped me through the rough times in life and you have supported me all the way. For me to give back to you by doing this is a heartless act and I wish I had never done it.
I am terribly sorry for having to put you through this. This is just one mistake that I have done and that I wish that it had never occurred. Again, I would like to apologise to everybody I have hurt or upset by my acts. I know words cannot fix what I did and I cannot change the past, but I hope that I can form a better future for all of us.
Victim Impact Statements
Victim Impact Statements were read to the Court by EH’s mother. The statement of EH read:
Dear Magistrate
I am [EH]. I am nine years old. [OH] has not harshly affected my life but I think I will see him differently. I also think he should be only allowed near girls young or old if he is supervised and there is someone with me because he only does it in secret. I did not understand why he would do these things to me. When he was sexually abusing me I wanted to cry because it hurt when he put his finger inside. When he was abusing me, he wouldn’t let me go and I didn’t know what was going on.
Now I can’t have sleepovers with boys. I thought he had an anger thing and I thought he was a nice boy. Since he has done some stuff, I want him to not be selfish anymore. I just want him to be the nice, kind boy like I thought he was. I don’t get to see [OH’s father’s] other kids as much anymore and I don’t really get to play with them much either. I find it hard to write down. I just don’t want him to do it again.
Of course, it must be accepted that the long term effects of the offences are not known. They may be serious, mild or non-existent.
EH’s mother read a much more detailed statement. It is not necessary to set it out in full. It dealt with a number of matters including:
· The emotional impact on EH and loss of innocence
Prior to the offences, EH showed age appropriate interest in sexual matters, including wanting to have 10 children. Since the offences, she says she does not want to have children as she does not want to have sex and “doesn’t like the boy’s penis”. She found the experience unpleasant.
· EH’s confusion about what happened
When describing the incidents, EH appeared bewildered and was obviously distressed when describing details. She was confused about the acts which she felt were “all slimy” and her reaction showed lack of awareness of sexual acts and caused her distress and confusion. This had made her mother great sadness.
EH’s mother states that the harm done cannot be undone, and will have lasting effects especially as she has no concept of sexual desire.
EH looked up to OH as the eldest step-sibling.
· EH’s concern for her step-sister
EH has expressed concern that OH may act in this way towards his step-sister
· EH’s contact with her other step-siblings
Since the offences, there is no contact between EH and OH which has meant very limited contact between EH and her other step-siblings.
· Physical impact, invasive medical checks and police interview
The decision to proceed with prosecution has resulted in great “angst” for EH’s mother in having to ask EH to undergo invasive medical checks which she had to undertake with the family general practitioner and then at the Child at Risk Unit of ACT Health. She was obviously stressed by the experience. Indeed, she expressed refusal to undergo further tests.
· The police interview with EH lasted two and a half hours but physically drained her. The requirement for a further medical check made EH very unhappy and made her mother feel cruel.
· School absences
EH missed five days of school.
· Betrayal of trust
EH’s mother felt betrayed by OH with whom she had been in a close family contact. I refer to this below (at [138]-[149]).
The offences caused EH’s mother to question the blended family, she having never seen OH as a threat despite considerable contact. It has caused her to change the course of her life, leading to OH being constantly before her mind and central to every decision she makes with respect to her relationship with his father. OH will always be the sex offender who abused her daughter.
· Feelings of anger and sadness
EH’s mother experienced feelings of extreme anger and sadness at hearing EH describe her wish not to “do the sex thing with boys”.
· Feelings of loss
EH’s mother experienced loss around her relationship with OH’s father and his family, with a question mark over the future.
· Feelings of guilt
EH’s mother feels guilty at putting EH in the position where she was not safe.
· Worry for EH’s development
EH’s mother worries about EH’s development into the teenage years and young womanhood, with difficulties in relationships unknown, and a need for greater maturity.
· Effect on EH’s mother’s relationship with OH’s father
The mother of EH and the father of OH had been in a serious relationship for nearly 3 years at the time the offences were disclosed. The disclosure was very confronting and changed the relationship, though it continued to be important and they did not want it to end. It made it, however, extremely difficult at times.
In particular, it limited what could be done as a whole family and pushed OH into the forefront of EH’s mother’s thinking about holidays, weekend time and visiting the home of OH’s father.
Their time together has been reduced by half.
· Loss of social engagement
As EH’s mother only moved to Canberra recently, most of her social network was created through OH’s father and his circle of friends. The offences have reduced that contact and created awkward and disheartening situations.
Sentencing
Sentencing submissions were made by both prosecution and defence counsel. It is not necessary to rehearse them.
Suffice it to say that defence counsel pointed to the objective seriousness of the offences but noted that they arose out of one episode, though there were also some uncharged acts, that there was no physical coercion, that OH was 13 years old at the time, though nearly 14, and was still a young boy, that he is likely to respond well to treatment, which he was willing to undertake and that OH was embarrassed and had a “dawning realisation” of the consequence of his actions for others. In particular, his counsel submitted that it was appropriate that there be no conviction because of the consequences, in particular, of the Sex Offenders Register requirements.
Prosecution counsel acknowledged the difficult sentencing exercise but pointed to the objective seriousness of the offences, including by virtue of the maximum penalties prescribed but also the comments of courts referring to the seriousness of sexual offences against young children. Reference was also made to the factors in this case relevant to seriousness which included: the youth of EH (8 years old), the significant age difference (5 years and 5 months), the bribing by OH to achieve his objective, the place of the offending, in the home of EH’s mother’s partner, where EH was entitled to feel safe. It was not a case of isolated offending, with the previous incidents admitted, and that EH was not, for the most part, a willing participant. The repetition of the conduct was also mentioned and the time the offences took to commit. The two were in a blended family situation. Counsel acknowledged that OH had expressed some regret, but with what was said to be limited insight and some minimising of his behaviour. As noted above, specific reference was made to OH’s alleged dishonesty; indeed, counsel mentioned it twice. Counsel accepted that there was not a high degree of manipulation or deception. OH had no prior convictions. Counsel also referred to the Victim Impact Statements and the recommendations in the psychologist’s report. Counsel submitted that specific deterrence was an important consideration, though rehabilitation was the primary consideration. Counsel submitted that a conviction should be recorded.
The sentence
The learned Magistrate adjourned for about three weeks to consider the sentence. On 29 August 2014 she entered a conviction of OH for each offence and made a Good Behaviour Order for 2 years.
In delivering her reasons for sentence, the learned Magistrate mentioned OH’s age and set out the charges. Her Honour summarised the facts. Her Honour acknowledged that there was no use of force in the commission of the offences but that young children were vulnerable. Her Honour described the offence as follows:
Of course, the use of violence or force would be a significantly aggravating factor and that did not occur here; however, in my view, the relationship of step-siblings, the breach of trust involved, the manipulation and the age difference of five and a half years between the young person and the victim are all significantly aggravating factors which bring these offences within the mid range of objective seriousness. On those bases, the moral culpability of the young person is also greater.
Her Honour referred to the purposes of sentencing, with reference to what I had said in R v BM (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 360 of 2011, 409 of 2011 and 21 of 2012, 14 February 2012).
Her Honour noted the special provisions, however, for offenders under the age of 18 years and referred to ss 133C and 133D of the Crimes (Sentencing) Act.
Her Honour referred to the plea of guilty and its significant utilitarian value as well as OH’s remorse. Her Honour had regard to the Victim Impact Statements and noted the “enormous impact on the whole blended family”. Her Honour also took into account the Pre-Sentence Report and the psychological report.
Her Honour then noted that OH had not been a problem child, with no drugs and alcohol or mental health issues or abuse perpetrated on him; he had strong family support. Her Honour then, curiously, said that the offences “go well beyond the mere exploration of pubescent sexuality”. It is not clear to me the basis on which her Honour made that finding. There seemed nothing in the Statement of Facts to underpin that finding nor in the psychological report, especially as the results of the Multiphasic Sex Inventory 11 (MS1-11) were not available when the psychological report was completed.
Her Honour referred to the assessment of OH as at low to mid-range risk of recidivism and the recommendation for weekly forensic psychotherapy treatment, which OH had agreed to undertake.
Her Honour then referred to the consequences of a conviction and said:
A relevant consideration in that respect are (sic) the consequence (sic) that arise as a result of a conviction, in particular the consequent obligations under the Crimes (Child Sex Offenders) Act 2005. For this, see the case of R v CV, a Court of Appeal case in 2013. I accept that they may be onerous, not only for young offenders, but also perhaps their families. It is an issue, the consideration for which weighs heavily on me. Of course, those matters are relevant considerations, but it is a balancing exercise, and having regard to, in particular, the serious nature of the offences, the view I have arrived at is that this is a matter where a conviction is warranted, and the exercise of discretion under section 17 is not appropriate. Having said that, and with a firm focus on the rehabilitation of the young person, it is not, in my view, a matter where a period of imprisonment should be imposed. Accordingly, the matters will be dealt with by way of a section 13 good behaviour order.
Her Honour then imposed the sentence to which I have referred.
The grounds of appeal
I have set out the grounds of appeal above (at [12]).
Behind the grounds of appeal, it was apparent that there were two essential issues which were then expressed in different ways through the grounds of appeal. In essence, OH first says that the sentence which included the entry of a conviction and not the making of a non-conviction order was manifestly excessive having regard to the consequences under the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act).
This was addressed by the first two and the fourth grounds of appeal.
Secondly, OH says that there were specific errors whereby the Court took into account an aggravating factor that was not an aggravating factor or that had already been taken into account. This was addressed in the second ground of appeal.
It is appropriate to deal with each of these matters in turn.
Manifest excess – Child Sex Offenders Register
The approach of an appellate court to the challenge that a sentence is manifestly excessive is well-known. In R v TW (2011) 6 ACTLR 18 at 27-8; [60]-[61] in a passage with which Lander J agreed, I relied on a passage from the Court of Appeal in R v Campbell [2010] ACTCA 20 at [32]-[35] and said:
60In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]):
32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder[1983] 3 NSWLR 245 per Street CJ (at 254).
47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn[2010] ACTCA 10 (at [33]).
33. As was said by Hunt CJ at CL in R v Ellis(1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse(1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
61This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.
This approach must, of course, be informed by the statutory approach to the sentencing of young offenders and the common law. Thus, in R v JJ [2014] ACTCA 23 at [14]-[15], the Court of Appeal held:
14. The purposes for which an offender may be sentenced are set out in s 7. These sentencing purposes apply to young offenders (see s 133A) but are modified by s.133C. Subsection 133C(1) provides that a court sentencing a young offender must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than to any of the other purposes in s 7.1(1). Subsection 133C(2) provides that in sentencing a young offender the court must have particular regard to the common law principle of individualised justice.
15. In deciding how an offender should be sentenced, s.33 sets out the relevant considerations. These considerations do not limit the matters a court may consider in deciding how an offender should be sentenced for an offence. Section 133D(1) requires the court to consider certain additional matters in sentencing young offenders, namely:
(a) the young offender's culpability for the offence having regard to his or her maturity;
(b) the young offender's state of development; and
(c) the past and present family circumstances of the young offender.
In R v PM [2009] ACTSC 24 at [53], I said, in a passage approved by the Court of Appeal in R v CV (2013) 233 A Crim R 67 at 78:
The common law approached the sentencing of youthful offenders in much the way that the Sentencing Act now requires. As was said by Mathews J with whom Gleeson CJ and Samuels JA agreed in R v P (1991) 53 A Crim R 112 at 116:
The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court of NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that ‘in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation’. His Honour relied upon Smith [1964] Crim LR 70, where it was said, ‘In the case of a young offender there can rarely be any conflict between his interest and the public’s. The public have no greater interest than that he should become a good citizen.’ This principle was also adopted by Hunt J in Bellavia (unreported 16 August 1980).
Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Broad (unreported, 30 March 1984), Street CJ referred to ‘the necessity to deter antisocial conduct ... commonly manifested by vandals in this city in current times’ but also was ‘concerned that for a young man of 19 with a clear earlier record and a supportive family background, importing as it does the prospects of real confidence in rehabilitation, a custodial sentence does not reflect the appropriate approach to be taken.
In C, S and T (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that
in sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.
See also, B (a child) (1995) 82 A Crim R 234 at 243; R v Mills [1998] 4 VR 235 at 241.
I have to say that it is not easy to see the evidence of this approach in the remarks on sentence here. In particular, there was evidence in the psychological report of the immaturity of OH which both statute and common law require to be taken into account.
Indeed, the Supreme Court of the United States of America in Johnson v Texas 509 U.S. (1993) at 368 explained:
The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.
This passage was further cited with approval in the opinion of that Court in Roper v Simmons 543 U.S. 551 (2005) at 570 with the comment:
The susceptibility of juveniles to immature and irresponsible behaviour means ‘their irresponsible conduct is not as morally reprehensible as that of an adult.’ Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings means juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, 492 U.S., at 395 (Brennan, J., dissenting). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.
This, of course, does not mean that punishment cannot be imposed. That is not the law. It can and should be imposed where appropriate. What both statute and common law require, however, is due recognition that the age and immaturity of a young offender is required to be taken into account so that a clear differentiation is made between the approach that is taken to punishment of the same offences committed by adults and juveniles.
This has already been achieved to some extent here, for there is no doubt that if an adult had committed the offences committed by OH, there would be, almost inevitably, a sentence of imprisonment imposed, though the circumstances may dictate that parts of it or the whole of it not be served in full-time custody. The learned Magistrate did not proceed in that way and no complaint can be made of that. Clearly her Honour recognised that the need for rehabilitation outweighed elements such as general deterrence and retribution to recognise what the US Supreme Court described as “the relevance of youth as a mitigating factor” and the reduced moral culpability.
The real question here is whether the conviction means that the whole sentence, including the consequences, constitute a sentence that is manifestly excessive.
The imposition of a conviction for the offences of which OH has been found guilty renders OH, under s 8 of the Child Sex Offenders Act, a registrable offender because, under s 10 and Schs 1 and 2, the offences are registrable offences.
There are exceptions. Thus, under s 9 of the Child Sex Offenders Act, a person is not a registrable offender if the person was subject to a non-conviction order (s 17 of the Crimes (Sentencing) Act or the interstate equivalent) or if the person has been sentenced for a single Class 2 offence (see Schedule 2 of the Act), the sentence for which does not include a term of imprisonment or a requirement for the offender to be supervised.
The obligations of a registrable offender, which OH had become by virtue of the convictions entered by the learned Magistrate, are set out in the legislation. I do not need to set them all out.
Under Pt 3.3 of the Child Sex Offenders Act, a registrable offender must report to the Chief Police Officer annually, must report when he or she leaves the ACT and intends to travel outside the ACT for seven or more consecutive days or outside Australia or, if outside the ACT, decides to stay longer than seven days, and then must report again when he or she returns to the ACT. There are other detailed obligations about reporting.
OH’s reporting period under s 89 of the Child Sex Offenders Act is for seven and a half years.
As he is a registrable offender, OH’s name must be entered into the Child Sex Offenders Register, established under s 117 of the Child Sex Offenders Act.
He is prohibited from applying for or engaging in child related employment, which is quite widely defined. This was relied upon by OH to suggest that the restrictions thereby imposed were arbitrary and part of what made the sentence excessive.
The reporting requirements, however, have a particular effect on a child of school age, as Mr P Edmonds, counsel for OH, submitted.
Under s 59 of the Child Sex Offenders Act, a list of “personal details” are prescribed as those which a registrable offender must report after sentencing (s 23) and the change of what must be reported within seven days after the change (s 54).
The majority of these details are matters about which no question could arise in relation to their appropriateness. For example, they include the registrable offender’s name, date of birth, address and so on.
They also include, however, the names and ages of children with whom the registrable offender has regular unsupervised contact: s 59(e) of the Child Sex Offenders Act. Section 60(c) limits such “unsupervised contact” by defining it to mean “unsupervised contact with a child for at least three days (whether or not consecutive) in a period of twelve months”.
For a child at high school, that, it seems to me, poses a serious potential problem, for the contact does not need to be on consecutive days but merely three days in a twelve month period. The important point to note is that failure to report such contact amounts to a criminal offence: s 54(1) of the Child Sex Offenders Act. The maximum penalty is not insignificant; it is 200 penalty units and two years imprisonment.
The difficulty is to give content to this obligation in the context of a child at school. I raised the question of breaks between lessons but Mr J Hiscox, counsel for the respondent, submitted that school grounds are supervised by teachers at such breaks. That may be so, though I initially had some doubts that one or two teachers with a few hundred children is supervision within the meaning of the legislation.
In any event, unless the whole school environment is regarded as meeting the criterion for supervision, one can posit situations where a teacher leaves a classroom before the next teacher arrives and, if that is done more than three times in a school year, then OH would have to report the name and age of every child in the class. The same would apply at the end of the day when a teacher simply leaves and the children are free to go home, being, until they do, unsupervised. At least naming every child in OH’s class would be easier than reporting the name and age of every child in the school who shared the school grounds at lunchtime or other breaks.
It seems to me that this takes too precious an approach to this issue. In line with the submissions of Mr Hiscox, I hold that while a student, who is a registrable offender, is at school during ordinary school hours, including reasonable periods before and after, formal classes and activities begin and end any contact with children there is to be considered, for the purposes of the Child Sex Offenders Act, to be supervised contact and not reportable. To take any other approach would mean that, effectively, a child who was a registrable offender could not go to school. I can discern no such intention in the Act. Such a conclusion would undermine the principles of sentencing of young offenders set out in the Sentencing Act and at common law, an intention to do which is by no means clear enough in the Child Sex Offenders Act for me to give effect to such a result.
In R v CV at 79; [45], 80; [54], the Court of Appeal held that the fact that an offender would become a registrable offender was not an irrelevant consideration in sentencing. I accept that this is so as, indeed, did the learned Magistrate. Her Honour turned her mind to the matter and decided, nevertheless, that a conviction should be recorded which would, her Honour accepted, render OH a registrable offender.
The other principles to be drawn from that decision include that, in the appropriate case, a non-conviction order can be made which results in the offender not becoming a registrable offender, a result clearly contemplated by the legislation which, of course, was dealing only with offences against children, all of which are, by the standard of the statutory maximum penalty, serious offences. There were, as the Court said (at 77; [37]), no limits to the offences for which a non-conviction order can be made.
Factors that the Court identified as relevant include the level of emotional maturity of the offender, the circumstances of the offence (such as, where relevant, the consent of the complainant in the context of a freely given and genuine affection between them), the difference between the ages of the offender and the complainant and, in considering such an issue, application of the principles relating to sentencing young offenders and the likelihood of re-offending.
Mr Edmonds also submitted that the arbitrary nature of the obligations under the registration regime established by the Child Sex Offender Act meant that the imposition of such a regime on OH meant that he was not accorded individualised justice as he was entitled to receive under s 133C(2) of the Sentencing Act. He relied on a decision of the South African Constitutional Court in J v National Director of Public Prosecutions [2014] ZACC 13. The Court there held that the requirement to include particulars of a person, there a juvenile himself, in a National Register for Sex Offenders breached the South African constitution and was invalid.
Mr Edmonds did not, however, seek to have the Child Sex Offender Act set aside or declared incompatible with any rights in the Human Rights Act 2004 (ACT).
The South African Constitutional Court accepted (at [31] and [37]) that different considerations apply to adult and child offenders, for reasons not dissimilar to those articulated in Roper v Simmons. This required the law to make allowance for an “individuated approach to child offenders” (footnote omitted). The Court held (at [39]), that this required:
that all ‘consequences arising from the commission of an offence by a child should be proportionate to the circumstances of the child, the nature of the offence and the interests of society’.
The Court also held that a child or his or her representatives must be afforded an appropriate and adequate opportunity to make representations and be heard at every stage of the justice process. The legislation there, as in the Child Sex Offenders Act, gave no discretion to the court as to whether, following a conviction, the offender’s personal details were entered on the register. This, the Court held (at [42]), infringed the best interests of the child, excluding the opportunity for an individualised response to the particular child offender, despite what the Court called (at [43]), the “serious consequences for the offender.
The Court went on to hold (at [51]), that the limitation on the child offender’s rights was not justified in an open and democratic society.
As a result, the Court made a declaration of constitutional invalidity.
As I have noted (at [98]), Mr Edmonds declined to challenge the validity of the Child Sex Offenders Act, for example, as incompatible with the Human Rights Act, but did submit that the findings of the Court should lead to a finding that to enter a conviction and thus make OH liable to the obligations to which he was thereby subject as a registrable offender, was too severe a penalty. The consequences on conviction were, he submitted, the same for all such offenders and, so, arbitrary and thus incompatible with individualised justice.
While that may be so, it is the law and, until set aside, has to be obeyed. It is not appropriate for a court to subvert the law, but to apply it. Thus, while the consequences of the sentence under consideration can, in certain circumstances, be included in assessment of what sentence the court decides it should impose, as decided in R v CV, it cannot impose an inappropriate sentence just to avoid a particular outcome without appropriate justification.
To assess this, I need to assess whether, as the learned Magistrate found, the offences were so serious and the personal circumstances of OH such that a conviction had to be entered.
Mr Hiscox identified a number of factors that made the offences serious. These included that the offending occurred in the family home, that OH bribed EH in order to commence sexual contact, the age difference between OH and EH and the targeting of EH because of prior conduct. These are matters well-known on the authorities as rendering an offence serious. These do show the offences to have been serious.
He also referred to the relationship of OH and EH as step-siblings but did not explain how that made the offences more serious. The problem is that, at least so far as two of the offences are concerned, this could, if the children were genuinely step-siblings, constitute a different offence, namely incest, contrary to s 62 of the Crimes Act1900 (ACT), and it would be a breach of the principles set out in R v De Simoni to punish OH for that offence when he has not been charged with it.
He also referred to breach of trust but I deal with that under the other appeal ground.
As to the specific offences, he referred to various matters including the ongoing manipulation of EH, her requests for OH to stop which he ignored or overbore, her attempts to leave which he prevented, her lack of consent to the attempted sexual intercourse, the time OH was actually engaged in the offences, the pain felt by EH, the fact that EH’s expressions of pain were ignored and did not result in OH ending the offending. Again, these are well-known aggravating factors.
These did result in the offences being ones that the court must regard as serious.
Mr Hiscox referred to the subjective factors also. He suggested that the age of OH was a “neutral” factor. I disagree. The law does recognise that age is a mitigating factor. Indeed, children under the age of 10 years are not criminally responsible: s 25 of the Criminal Code 2002 (ACT). Further, children between 10 and 14 are only responsible if they know the conduct is wrong: s 26 of the Criminal Code. Until a young person is 18, there is a special regime for sentencing them: R v JJ. Age is a very relevant factor that generally mitigates punishment for the reasons set out above (at [74]-[75]).
Mr Hiscox set out positive subjective factors: OH has no criminal record, he pleaded guilty at a relatively early stage, he expressed remorse, he agreed to undergo treatment and he had the support of his parents.
He referred to some negative factors. OH was assessed as at a low to moderate risk of recidivism and was said to have a lack of insight into his offending.
He also referred to a “[h]igh level of moral culpability”. I do not agree. As the US Supreme Court has pointed out, this cannot be accepted of young offenders without clear evidence that they should be held as responsible as adults. The approach taken in this case to such an issue was indistinguishable from that applied to an adult offender and that is not what the law requires.
As to lack of insight, which was also suggested as a negative factor, I could not see in the psychological report a basis for this finding, unless it is intended to be inferred from the finding of a degree of minimising of his conduct, though that seemed to be addressed at culpability rather than lack of insight.
Mr Edmonds did not seem to cavil with these assessments.
The issue of honesty was one, however, that troubled me.
The learned Sentencing Magistrate expressly took into account the psychologist’s report. Her Honour did not refer expressly to the allegations of theft alleged that OH had committed on his parents, though, of course, they were contained in the psychologist’s report which her Honour had read.
The prosecutor, however, did, in submissions, expressly refer to the complaint of theft. Indeed, she read out the passage of the report in which the allegations were made. There was no suggestion in any of the material before the Court that what was said by OH amounted to an admission. There was, for example, no reference to it in the submissions of counsel for OH. It would have been preferable if counsel had objected to that material or, at least, addressed her Honour on how it could be used.
In R v D [1996] 1 Qd R 363 at 404, the Queensland Court of Appeal said:
To withhold leniency by reference to offences of which a person being sentenced has not been convicted is, in our opinion, to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences. A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted.
...
We should add that, in our view, it would be intrinsically unfair to charge a person with a single offence and then adduce evidence of other offences in a proceeding in which his or her primary concern to defend the offence charged before the jury might conflict with his or her need to meet the possibility that, if he or she is convicted of the offence charged, the judge may ‘convict’ him or her of the other offences and treat him or her more harshly, or less leniently.
That reasoning has, however, been expressly rejected by Spigelman CJ with whom Simpson J agreed in JCW (2000) 112 A Crim R 466 at 473; [38], after a full and detailed consideration of the authorities from a wide range of jurisdictions.
That debate, however, seems to me to refer to a specific circumstance which is only partly relevant here. That is, where an offender is being sentenced for a conviction of a “representative count” and that is a situation which the offender expressly admits or where the offender has made an express admission of other offences, the sentencing court may take those other offences into account at least so far as they deny the offender leniency or preclude mitigation. It may be used as a matter of aggravation, but only if the admission is sufficiently precise.
As Spigelman CJ said in JCW at 477-8; [66]-[68]:
66It is not, however, necessary, to express a concluded opinion about whether, and if so how, admissions of uncharged offences can be taken into account by way of aggravation, other than pursuant to an express statutory scheme. (In my opinion, the reasoning in Siganto suggests, by way of analogy, that such use is not permissible). The reason why it is not necessary to decide the issue in this case is because the admission on the part of the applicant did not have the necessary degree of precision.
67In the present case there was an express admission on the part of the applicant that the particular counts with respect to daughter DW were ‘representative’. That admission extended to an admission of the general nature of the relationship as set out in the uncontested evidence of DW. I do not, however, conclude that the admission extended to any, let alone each, of the specific allegations contained in DW’s evidence.
68An admission of this general character is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendance reduction of an otherwise appropriate sentence. It is not, however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all.
This approach appears to be consistent with that taken by the High Court in Weininger v The Queen (2003) 212 CLR 629 at 640; [32], where Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Secondly, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the primary judge had not sentenced the appellant for crimes with which he was not charged. Of course it would have been wrong to do so. A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life.
Thus, in this case, her Honour was entitled to use the reference in the “Agreed Statement of Facts” as to other sexual acts committed by OH on EH to deny him relevant leniency but it does not seem to me that she was entitled to take into account the allegations of dishonesty which, even though coming from OH’s parents, were just that. Indeed, he expressly denied stealing the $4,000.
I could find no acceptance by OH or his counsel of those offences such as to constitute an admission as required by the High Court.
Nevertheless, having taken all these matters into account, I am not satisfied that the sentence was manifestly excessive.
Reasons
In challenging the reasons of the learned Magistrate for not making a non-conviction order under s 17 of the Sentencing Act, Mr Edmonds acknowledged that her Honour referred to the correct principles for sentencing children and young people.
What her Honour said has been set out above (at [63]). I do not need to repeat it.
This has to be seen also in the light of the submissions made. There were not extensive submissions and they did not, in particular, deal with the issues that I have had to deal with on this appeal, namely regular contact with children.
The submissions raised issues of annual reporting and restrictions on employment but made no specific submissions about what difficulties these would provide to OH. It was noted that they would extend to OH’s adult years – that is, until he was over 21. It was also pointed out that he would be “marked as a sex offender, potentially for the rest of his life”. It was, however, not explained how that would differ if there was a finding of guilt (no doubt a clear marking of OH as a sex offender) as opposed to a conviction. Indeed, most investigations of employment suitability, for example, where a working with vulnerable people check and police check are required, would be, it seems to me, likely to disclose both.
The only difference would obviously be that a non-conviction order would suggest a less serious offence. That, however, is exactly what her Honour addressed as the question to be determined. That would, no doubt, last for, as Mr Edmonds said, the rest of his life. That, however, is the way the law has been enacted.
The prosecution submissions were that the circumstances in R v CV were quite different to the present. That is true, but the principles are applicable, though the prosecution submitted that this case did not fit within the principles.
The prosecution submitted that it would not be appropriate to record a conviction because of the nature and seriousness of the offences which, it was submitted, meant that a non-conviction order would not adequately reflect the considerations needed to be addressed; they were not trivial offences, they were “extremely serious” offences.
The real issue, then, was whether the seriousness of the offences justified the rather exceptional approach (see Proud v Sladic [2014] ACTCA 26 at [42]) of a non-conviction order. Clearly the most important issue was the nature, number and seriousness of the offences. Her Honour was well aware of the issue of the burden that would be placed on OH by the conviction rendering him a registrable offender. She engaged in that balancing exercise and explained her reasons. They were brief, as is to be expected in a busy Magistrates Court. See Sleiman v Murray (2009) 231 FLR 224 at 236; [75].
Her Honour was clearly aware of the law and the issues to be resolved and addressed them, albeit succinctly, nevertheless sufficiently for OH and, indeed, this Court to understand why her Honour decided to proceed as she did.
There is no inadequacy of reasons which show error on the part of the Childrens Court.
Abuse of trust
Her Honour did, however, expressly refer to a breach of trust involved in the offences. It is clear that her Honour considered that this was an aggravating feature of the offence. This is an allegation that seems to be frequently made but without a careful attention to what is actually involved.
The New South Wales Court of Criminal Appeal had occasion to consider the position in Suleman v The Queen [2009] NSWCCA 70 at [22]-[26]:
22 This aggravating factor is not made out simply because the victim trusted the offender for some reason or other, such as because of the offender’s standing in the community or he appeared to be a successful businessman. Nor is it made out because the persons with whom the offender dealt were “commercially naïve people”. The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to “a position of trust”. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. The position of trust may reside in only one of the persons, such as between parent and child. But there may be situations where each stands in a position of trust to the other. The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship.
23 The position of trust recognised by the common law does not arise simply from a subjective state of mind of one of the members of the relationship. It is not enough that for some reason or another the victim trusted the offender not to act in a particular way: that state of mind might be irrational or without foundation. On the other hand a position of trust can arise irrespective of the state of mind of the victim, for example because the victim is a child or mentally disabled. But the offender would know, or should have known, that he or she is in a position of trust with respect to the victim. In R v MAK [2005] NSWCCA 369 it was held in a sexual assault case that there was no position of trust between the offender and the victim simply because they had a prior encounter where nothing untoward had occurred between the two. The victim may have erroneously trusted the offender because of his behaviour on a prior occasion but that did not create a position of trust for the purposes of sentencing.
24 There are recognised trust relationships that rely upon the person’s standing in the community but usually as a consequence of the person holding a particular occupation or calling; for example doctors, priests or teachers. In such a case members of the community generally understand that holding that position imposes upon the holder a particular duty of care not to act to the detriment of a person dealing with the holder while fulfilling that position. That understanding is recognised by the common law.
25 But the common law does not recognise, for the purposes of sentencing, that a position of trust arises simply because the two persons are involved in a commercial relationship. There must be some peculiar aspect of the relationship that imposed a position of trust on one or both of the participants. Such relationships were considered in R v Martin [2005] NSWCCA 190 at [40] and included a real estate agent fraudulently omitting to account to a client and dishonesty offences by a solicitor in carrying out his duties.
26 It has been made perfectly clear both by the wording of s 21A(2) and decided cases that the section was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: R v Wickham [2004] NSWCCA 193; R v Johnson [2005] NSWCCA 186.
A wide range of other occupations or circumstances have given rise to the identification in the common law of a breach of trust. A very helpful conspectus is set out in that invaluable text, Kate Warner, Sentencing in Tasmania (Federation Press: Sydney, 2002) 2nd ed, at 85; [3.416].
None seem to apply here. It was not asserted in the Statement of Facts, for example, that OH was entrusted on the relevant occasion as the babysitter for EH. Indeed, it is more likely that OH would be the subject of babysitting rather than being a babysitter. There was, however, no evidence to suggest that the special obligation of trust was imposed on OH, even if he were of an age to understand such an obligation.
The only basis on which it appeared that such trust was imposed and breached was that OH was older than EH. That does not seem to me to be sufficient to place a 13 year old in a trust position of the kind alleged.
That there was an age difference between OH and EH, of itself, does not give rise to a trust relationship. In any event, the learned Magistrate took that into account as a separate factor.
While it would be possible to speculate or infer that when OH and EH were left in the house, there was some intention to have OH responsible for EH, that is, however, not an inevitable inference. Indeed, there was no mention one way or the other of whether there were other people there. There was no mention of what, if anything, was said to OH or to EH about the arrangement, or of any reasonable expectation from prior conduct.
There is no doubt that aggravating factors must be proved beyond reasonable doubt. See R v Olbrich (1999) 199 CLR 270 at 281; [27]; R v Carney [2013] ACTSC 266 at [149].
It is not enough to list a catalogue of aggravating factors that may be argued to be relevant or that have been submitted to be relevant unless the facts ascertainable from the evidence are a firm base for finding that factor proved beyond reasonable doubt. The law requires no less.
In this case, I could find no evidence from which a breach or abuse of trust could be found from the facts proved to the requisite degree. Speculation and suspicion are not sufficient.
In my view, the learned Magistrate took into account an irrelevant consideration.
Though this was challenged on the basis that the resulting sentence was manifestly excessive, it seems to me that it is a sentencing error in its own right.
Conclusion
Accordingly, the appeal must be upheld. That does not necessarily mean that OH should be re-sentenced.
A young person changes quite quickly over time and OH has been, I understand, subject to treatment. Thus, I should have an updated assessment of the treatment and OH’s situation in order to determine what sentence is appropriate.
For this reason, I consider that OH should be re-sentenced.
| I certify that the preceding one hundred and fifty-two [152] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge Associate: Date: 16 June 2015 |
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