OH v Driessen (No 2)
[2015] ACTSC 354
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | OH v Driessen (No 2) |
Citation: | [2015] ACTSC 354 |
Hearing Date: | 29 July 2015 |
DecisionDate: | 30 October 2015 |
Before: | Refshauge ACJ |
Decision: | 1. OH be convicted of engaging in sexual intercourse with a person under the age of 10 years. 2. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today, with the condition that he be under the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising him, especially as to continuing psychotherapeutic counselling and treatment. 3. OH be convicted of committing an act of indecency on a person under the age of 10 years. 4. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today. 5. OH be convicted of attempting to engage in sexual intercourse with a person under the age of 10 years. 6. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentence – act of indecency on a person under the age of 10 years – sexual intercourse with a person under the age of 10 years – young offender – offender undergoing counselling – psychotherapist’s assessment – sentencing of young offenders – relevance of immaturity – importance of rehabilitation – Good Behaviour Order |
Legislation Cited: | Crimes Act (1900) (ACT), ss 55(1), 61(1) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 133C Criminal Code (2002) (ACT), s 44 |
Cases Cited: | Clarkson v The Queen (2011) 212 A Crim R 72 OH v Driessen [2015] ACTSC 148 |
Parties: | OH (Appellant) Senior Constable D Driessen (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Ms P Burgoyne-Scutts (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 Fryar 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 ACJ:
Criminal proceedings against persons under the age of 18 years are subject to a special regime. That is appropriate, considering that such persons do not have the same maturity as adults, which is very relevant to the assessment of culpability, an important element in the determination of the appropriate sanction the court should impose for the behaviour that constitutes the crime.
That raises challenging issues when very serious offences are committed, and often the seriousness of the offence overshadows calm and objective assessment of the appropriate sentence. An appropriate sentence for a young offender must, of course, take into account the special regime that the legislature has prescribed, as well as the personal circumstances of the offender and the objective seriousness of the offence.
OH pleaded guilty in the Children’s Court to three sexual offences committed on a child under the age of 10 years. On 27 August 2014, he was convicted of those offences and the learned Magistrate made a Good Behaviour Order for two years with a probation condition.
OH appealed against the sentences and, on 16 June 2015, I upheld the appeal and set aside the sentence, see OH v Driessen [2015] ACTSC 148. As a result, it falls upon me to re-sentence him.
A number of things have changed since OH was sentenced in the Children’s Court. Accordingly, it was appropriate that I receive additional material on sentence and I did so.
The offences for which OH is to be sentenced are as follows:
· committing an act of indecency on a person under the age of 10 years, an offence against s 61(1) of the Crimes Act (1900) (ACT), for which the maximum penalty is imprisonment for 12 years.
· engaging in sexual intercourse with a person under the age of 10 years, an offence prohibited by s 55(1) of the Crimes Act which provides for a maximum penalty of imprisonment for 17 years.
· attempting to engage in sexual intercourse with a person under the age of 10 years. By s 44 of the Criminal Code (2002) (ACT), a person found guilty of attempting to commit an offence is punishable as if the offence attempted had been committed. Thus, for the offence, OH is liable to a maximum penalty of 17 years imprisonment.
It is well accepted that the maximum penalties are an important indicator of the seriousness with which courts must take the offence as committed. By that yard stick, these are very serious offences. This is clearly because the community regards it as very important to protect young children from sexual abuse and the significant impairment it can cause victims and recognition of the vulnerability of such victims. Indeed, as pointed out by the Victorian Court of Appeal in Clarkson v The Queen (2011) 212 A Crim R 72 at 82; [33], the creation of these offences which prohibits such acts and behaviour is based on the presumption of harm, “long‑term and serious harm, both physical and psychological”, to the child victim.
Nevertheless, that does not justify any sentence of severity. The sentence must be appropriate and just, which includes a proper assessment and accounting of the circumstances of the offender.
The facts
I have set out the facts of the offences in OH v Driessen at [15]-[25]. I do not need to repeat them. I take what I there said into account.
Subjective circumstances
I have also set out the subjective circumstances of OH in OH v Driessen at [26]-[49]. Again, I do not need to repeat what I there said, but need to bring those circumstances up to date. I will, of course, rely on the matters I set on in the earlier decision.
Since being dealt with by the Children’s Court for these offences, OH has been dealt with by the Children’s Court at Queanbeyan for an offence against the same victim in New South Wales.
This involved events that occurred when OH and the victim were holidaying with their families on the New South Wales coast at an earlier time than the offences for which he is dealt with in Canberra. OH was 13 years old and the victim was seven years old. OH and the victim were sitting together on a grass patch on the sand when he asked her, “Do you want to have sex?” The victim had no idea of what he meant, but OH asked her to pull her pants down which she did. OH pulled his pants down to reveal his erect penis and he knelt down and pushed it in the vicinity of the victim’s vagina and tried to penetrate her, causing her pain. He did not penetrate her. The two pulled up their pants as other members of the family came out of the water.
On 8 May 2015, OH was found guilty of the offence of aggravated sexual assault on a victim under the age of 16 years and sentenced to 18 months probation to accept supervision for as long as deemed necessary and to undertake any programs as directed. He has been compliant with the probation condition.
This order meant that OH became a registerable sex offender with the requirements that this imposed, as I described in OH v Driessen at [79]-[93].
For sentencing in this Court, a further Pre‑Sentence Report was prepared, as was a further report from the psychotherapists who had continued to provide treatment for OH. The author of the Pre‑Sentence Report and OH’s mother also gave oral evidence.
Accordingly, I note the following matters in addition to those to which I have already referred.
The family relationships have some complexity in all the circumstances. I do not need to go into detail. OH has, it seems, a good relationship with both his parents, though there are some constraints on his interactions with his mother. There is no doubt that his parents have a good relationship with him and are devoted to him.
There has been a worrying use of cannabis by OH. That appears to be reducing and his mother said that she was proud that he came to his own realisation that he had to move towards abstinence. She said that there were still some difficulties with his managing his anger, but that he is trying really hard, though the family dynamics are a challenge. The outbursts tend to occur at his mother’s place, perhaps because he is more comfortable in that setting. It is difficult to know. There is no doubt that the present circumstances would be a challenge for an adult, let alone a 14 year old.
There was some evidence about OH’s negative attitude towards females. Both his mother and the author of the Pre‑Sentence Report addressed this. It is difficult for me to make a finding on this issue. The author of the Pre‑Sentence Report said that it was not her view that OH was generally disrespectful of women and that he had not been disrespectful to her. His mother thought that he was more disrespectful to women to whom he was close, but that this was partly because he was able to expose some of his vulnerability. Female leaders, such as his teachers, are not women to whom he was disrespectful. He presently does not have a girlfriend but has female friends.
OH has, at present, no contact with the victim, which has caused some challenges in the context of the family situation. He also has no unsupervised contact with his siblings. Nevertheless, his mother has no concerns for the safety of his siblings. He is reported, in the Pre‑Sentence Report, as saying that he has little meaningful interaction with his siblings, but that is partly because of the age difference. He keeps to himself to avoid confrontation though there appears to have been some difficult situations in the past. OH’s father is reported in the Pre‑Sentence Report as having noticed a significant improvement in the way OH deals with the behaviour or issues of trust and lying.
Efforts are being made through Relationships Australia to work through the difficult issues occasioned by the relationship between OH's father and the victim's mother.
OH appears to be progressing reasonably well at school and there are no attendance issues. He says he tries to get good grades. He has commenced a pre-apprenticeship course in construction pathways, hoping to complete the course by the end of next year. The program is intended for students who wish to explore the possibility of a career in the building construction industry and enables them to be "fast tracked" into their apprenticeship competency training. The training takes place after school hours, which requires a demonstration of additional commitment. OH has attended the class, which runs for four hours on Thursday, on every occasion. He hopes to begin a carpentry apprenticeship when he leaves school.
OH has also had some employment at a takeaway shop with two shifts each week. He enjoys the work but is seeking work elsewhere which will provide him with further shiftwork.
OH has been assessed as at a low risk with regard to peer associations.
His use of cannabis has been a problem but he has now ceased its use, I am told, and has found that he could manage this fairly easily. He has distanced himself from associates that use drugs and now spends most of his time with friends who do not use cannabis. His express preference is to live a life without cannabis.
OH is assessed as at a low risk for general recidivism.
Despite the requirement for continued counselling being stayed pending the resolution of the appeal, OH has continued to attend for counselling and therapy with the psychotherapists whom he was previously seeing. I had a comprehensive and helpful report from them about him.
The psychotherapists had made an updated risk assessment for the purpose of these proceedings. The tool used is one most commonly used empirically as a guide, but it has not yet attained a sufficiently large data pool to be considered an actuarial scale. In the absence of any such scale, it is the best available.
OH has been assessed on the basis of 28 items. Of 16 there was no evidence or low level of concerns. Of 11 items there was a moderate level of concern and on one factor there was a high level of concern.
Having regard to the assessment and additional information available, the report assesses OH's level of risk as moderate. It notes, however, advances he has made in treatment to date, which is currently being undertaken voluntarily and which is evidence of his willingness to address the risk.
The report notes the support of his mother and the complexity of his father's situation, particularly in the relationship with the victim's mother, who, as such, is obviously concerned. The report describes her as having "expressed severely condemning attitudes towards" OH. That is unsurprising, but brings significant challenges in the management of the family dynamics.
The report asserts that the risk for the victim is low and the risk to his siblings is said to be manageable.
While the report suggested OH had demonstrated a capacity to manage any sexual feelings that arise, he has concerning interaction with his siblings marked by aggression, which is said to demonstrate a level of ongoing immaturity and a sense of entitlement. The need for insight into this area is subject of ongoing consideration within the treatment process.
The assessment of risk is not a reflection, it is said, of poor participation or progress in treatment. Indeed, he has regularly attended, missing only two non-consecutive scheduled sessions. He is reported to have made progress, in particular in understanding concepts such as consent and disclosure and identifying situations where consent is not possible. He has also demonstrated an ability to differentiate between behaviour that would be a sexual offence and age appropriate consensual exploratory sexual experience.
He has improved his general behaviour and gained a deeper understanding of the underlying thoughts that have led him to his inappropriate sexual behaviour. He has developed insight, though he still has problems with his non-sexual impulsive behaviour.
His main difficulty with treatment is a defence mechanism which tends to lead to minimising his responsibility and guilt.
He has, however, shown positive qualities, including a social personality.
A number of areas which still need attention were listed and, clearly, there is a need for continuing treatment. The report seemed to be generally positive overall, though there is more to be achieved. There is no reason to suppose that further progress will not be made.
Victim Impact Statements
I have regard to the victim impact statements that have been made by the victim and her mother. I have set out the former and a detailed summary of the latter in OH v Driessen at [50]-[52].
The Offences
There is no doubt that the offences are very serious. As I have already indicated, sexual offences against children are a particular concern and are required to be treated seriously but justly by the courts.
Some of the matters that made these offences serious include the age difference between OH and the victim, the element of bribery and coercion to encourage the victim to participate in the conduct, the acts occurred in the home of her mother's partner where the victim was entitled to feel safe and the fact that there were a number of acts over a period of time. It is also relevant that there had been an earlier incident. I do not accept that there was premeditation or planning involved, but clearly the earlier incident meant that the victim was more vulnerable as a result. There was some pain expressed by the victim and OH was not quick to stop when the victim was experiencing that pain.
Having said that, there were a number of features which meant that it was not the most serious of such offences. There was no actual penile-vaginal intercourse and of course no ejaculation or risk of sexually transmitted disease. There was no actual violence, other than the physical acts themselves. There was no evidence of a deviant sexual desire by OH.
There is no doubt that, had these offences been committed by an adult, a lengthy term of imprisonment would have been appropriate.
Sentencing Young Offenders
The legislature has mandated a separate regime for the sentencing of young offenders. That recognises the common law that generally requires rehabilitation to be emphasised in preference to the other purposes of punishment. Those other purposes, however, may not be ignored but need to be balanced.
In particular I set out in OH v Driessen at [72]-[76] that it is important to recognise the difference that the immaturity of a young offender makes to the assessment of the culpability for an offence. It is therefore not a matter of simply applying the description of offences or criminality that it is appropriate to adult offenders to children, especially young children. It is, in this context, worth repeating the following passage from the US Supreme Court in Roper v Simmons 543 US 551 (2005) at 570:
The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. 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.
(footnotes omitted)
Though expressed in a different jurisdiction and in different circumstances, these comments are still entitled to be respected and the message that they express about the relevance of immaturity in this difficult area is important to accept.
None of this means that OH can escape the consequences of his actions nor that he should not be held accountable.
Disposition
The real issue in these proceedings was whether a non‑conviction order is appropriate. The Court of Appeal has held in R v CV (2013) 233 A Crim R 67 that, even in the cases of sexual offending, such a disposition can be an appropriate sentence where the consequences of a conviction are disproportionate to the offending behaviour and the offender's culpability. In that case, at issue was registration as a sex offender and the obligations that this brings.
On the appeal in these proceedings that was a major matter of concern, and I was urged to find that the approach in R v CV was appropriate and that, as a result, the sentence imposed by the learned Magistrate was manifestly excessive. I did not find that.
The situation has now changed, for the finding of guilt in the Children's Court in Queanbeyan means that, in that jurisdiction, OH is a registrable child sex offender, so any attempt to avoid that consequence by using a non‑conviction order in this jurisdiction is irrelevant.
Mr P Edmonds, who appeared for OH, submitted, however, that it was still appropriate to make a non‑conviction order because the fact of a conviction will have a significant effect on the future employment prospects of OH. There was no direct evidence of this issue and it was relatively speculative.
The intended occupation of OH as a carpenter is unlikely to be closed to him because of this offending. It is possible that there may be some work that carpenters do where vulnerable person checks are required and this could pose difficulties for him.
Further, the offences will not be spent convictions for the purposes of the Spent Convictions Act 2000 (ACT), for a finding of guilt necessary for a non‑conviction order is a conviction for the purposes of that Act, and so gives OH no benefit in that respect were I to make a non‑conviction order.
The prosecutor opposed making a non‑conviction order. It was submitted that the circumstances in the R v CV were quite different from those pertaining here. I accept that.
Reliance was placed by the prosecution on the decision of the New South Wales Court of Criminal Appeal in R v KNL (2005) 154 A Crim R 268, which upheld a Crown appeal against a non‑conviction order for an offence of sexual intercourse with a person under the age of 10 years committed by the offender, who was 19 years and six months old. While that decision is to be treated with respect, as the decision of an intermediate appellate court, I am bound by R v CV and, insofar as the two are inconsistent, I should follow the latter.
There were, in any event, some differences in the relevant legislation which makes the applicability of what was said in R v KNL somewhat problematic in this jurisdiction.
Consideration
This has been a most difficult case, for the seriousness of the offences do clash directly with the youth, immaturity and commitment to rehabilitation of OH and the progress he is making.
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) and especially the modification made by s 133C of that Act.
In my view, general deterrence is not a significant matter in this case, though I do not and cannot disregard it. I do consider that specific deterrence plays a part, but more indirectly, by reinforcing the need for OH to continue to manage his sexual feelings and to continue with the psychotherapy treatment that seems to be progressing his rehabilitation and to which he seems committed.
I see no reason why the promotion of rehabilitation should not be the major consideration, as the legislation clearly contemplates may be so in appropriate cases. There is, of course, a need for the recognition of the harm done to the victim, though I did not have any current information about that, other than what the courts can be expected to understand.
I take into account the seriousness of the offences, as I have described them, and pay proper regard to that consideration. I also take into account the matters referred to in s 33 of the Crimes (Sentencing) Act. So far as I know them, they have been set out earlier in these remarks and in my earlier decision.
I was provided with a helpful table of comparable decisions in this jurisdiction and some in New South Wales and, where appropriate, have considered the actual sentencing remarks for the relevant sentences. There were, of course, many differences, but they show that suspended sentences and Good Behaviour Orders are within sentencing range in appropriate cases where sexual offences are committed by young persons and have to be dealt with by the courts.
I am impressed with the progress that OH has achieved, the efforts he is making to return to a more normal life and in the complexity of his current situation.
Nevertheless, there is still clearly some way to go and, unsurprisingly, and without condemnation, I find that his behaviour is still marked by some problems that he needs to address. I did not expect, nor do I require, perfection, but I need to accept the reality of the current situation.
I consider also that the regrettable delay in finalising this matter to conclusion, where OH has been in a period of uncertainty, though, to his credit, that has not prevented his progress to reform nor led to further offending, should nevertheless be recognised.
Having regard to all the circumstances of the offending, I do not consider that a non‑conviction order is appropriate in this case.
OH, please stand.
1. I convict you of engaging in sexual intercourse with a person under the age of 10 years.
2. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today, with the condition that you be under the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising you, especially as to continuing psychotherapeutic counselling and treatment.
3. I convict you of committing an act of indecency on a person under the age of 10 years.
4. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act (2005) for a period of 12 months from today.
5. I convict you of attempting to engage in sexual intercourse with a person under the age of 10 years.
6. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act (2005) for a period of 12 months from today.
[His Honour then spoke directly to OH]
OH, that is the formal order that I make, but it is important that I explain it to you, because that is probably a lot of legal gobbledygook to you. I have imposed a conviction. It seems to me, notwithstanding the good progress that you have been making, the seriousness of the offences must be marked in that way in this jurisdiction.
It has been put to me that that is going to affect you in the future. Well, it obviously will. That is what punishment does. I certainly hope, and I have an expectation, that it will not prevent you from realising your aims if you want to be a carpenter, and, God knows, we need good carpenters in our community, and I am reasonably confident that you will be able to achieve that at the end of the day. I have reduced the level of supervision from two years to 12 months because, in effect, you have done 12 months of that in any event. You have done most of that voluntarily.
The only condition I have is a supervision condition. There are two reasons for that. One is a degree of control, to make sure that you do not offend any further, to the extent that that can be done, but also it is an opportunity, so that there is someone available to you who is independent of your family, not that they are not good people and that they love you very much and they look after you, but if things get tough, and life does get tough, you can speak to them and they have options available to them. They have also means of directing you in areas where you might be able to seek assistance or help, so you can address those things to avoid things coming back to trouble you.
That is for a period of 12 months, or such lesser period as is deemed appropriate. At the end of that time, if you commit no further offences, and if you obey the directions of the person supervising you, that is the end of the matter so far as the courts are concerned. If, however, you do commit another offence punishable by imprisonment, or if you disobey any of the directions of the person supervising you, then you can be brought back to court and you can be resentenced, and the sentence can be anything of up to the maximum. Obviously it is not going to be the maximum or anything like it, but it could be a serious penalty depending on what it is that you do.
It is tough growing up. It is tough having sexual feelings and knowing how to express those properly and to explore those reasonably. You did a terrible thing, and you did a thing that I believe, when you think about it, if not already, you are ashamed of and understand was inappropriate in the circumstances. Hopefully, the penalty that the court has imposed will be the end of it for all intents and purposes, and I certainly hope that you continue your reform. I have every expectation that the criminal courts will not see you again.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 14 December 2015 |
6