P K D v Tasmania
[2008] TASSC 29
•30 June 2008
[2008] TASSC 29
CITATION: P K D v Tasmania [2008] TASSC 29
PARTIES: D, P K
v
TASMANIA (STATE OF)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 373/2008
DELIVERED ON: 30 June 2008
DELIVERED AT: Hobart
HEARING DATE: 11 June 2008
JUDGMENT OF: Slicer, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Circumstances of offence – Maintaining sexual relationship with young person under the age of 17 years – Pregnancy of complainant – Parties still maintaining relationship – Complainant refused to make statement to police.
Lowe v R (1984) 154 CLR 606, applied.
Aust Dig Criminal Law [830]
REPRESENTATION:
Counsel:
Appellant: T Jago
Respondent: C J Rheinberger
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 29
Number of paragraphs: 16
Serial No 29/2008
File No 373/2008
P K D v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
TENNENT J
PORTER J
30 June 2008
Orders of the Court
Appeal upheld.
That the sentence of ten months' imprisonment imposed on 8 May 2008 be quashed and in lieu thereof the appellant be sentenced to four months' imprisonment to commence as and from 2 May 2008, the balance of such sentence to be suspended as and from 30 June 2008.
Serial No 29/2008
File No 373/2008
P K D v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
30 June 2008
The appellant was sentenced to a term of 10 months' imprisonment following his plea of guilty to the crime of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The relationship alleged in the indictment was maintained between 1 May 2006 and 5 September 2007. K was born in October 1991 and the appellant in September, ten years previous. She was aged 14 years and 7 months at the time of its commencement. The period alleged is a legal construct since the couple were cohabitating up until the time of his incarceration in May 2008.
The couple had known each other through family. Their mothers had known each other for many years. In April/May 2006, K was experiencing family trouble and was asked by her mother to leave the family home until it had run its course. By arrangement she moved into the home of the appellant's mother. A relationship, beyond friendship, quickly developed. K became pregnant, giving birth to their child in April 2007. The couple lived together at the family home until they established their own separate household. At the time of sentencing, they were living in private rental accommodation. The appellant had been seasonally employed, but at the time of sentence both were in receipt of permitted benefits.
Police became involved, not by complaint through family, but by a referral from a Child and Family Services officer. K refused to make a statement to police and, presumably, had no say in the institution or continuance of these proceedings.
The appellant admitted responsibility to interviewing police, a summary of which was presented to the sentencing court providing:
"He knew [K] through her family. He thought he was twenty four and she was fourteen when their sexual relationship commenced. They've been together ever since and were living together. They have a child together, [S], she's almost five months at the time of the interview. They plan to stay together as a family. He was aware that the relationship was illegal."
The appellant told the Court, through counsel, that at the time of the commencement of the relationship he "believed that sixteen was the age limit, however, he accepts that in any event, she was below that age and he was aware of the illegality of the relationship".
The appellant first appeared in court on 11 March and entered a plea of not guilty. However, on the same day, the prosecution was advised by letter that he would plead guilty to the crime. The appellant was entitled to the benefit of an early plea. The sentencing hearing was conducted on 2 May, following which he was remanded in custody, being sentenced to 10 months' imprisonment on 8 May. His name was placed on the register for four years, maintained in accordance with the Community Protection (Offender Reporting) Act 2008.
The ground of appeal states:
"The said sentence is, in all of the circumstances of the case, manifestly excessive."
The appellant has an extensive record for offences mainly concerning acts of dishonesty, driving offences, including driving whilst disqualified, and exceeding the prescribed alcohol limit and failure to pay fines. Significantly he had only one prior conviction for violence, that of assault, committed in December 2000. He had previously been to prison in 2001. They were of little import except as the learned sentencing judge put it:
"You knew that your sexual relationship was illegal, and took the risk of being prosecuted for it, despite having been to prison in the past."
His Honour took into account the offender's confession, co-operation with police, the early plea and, paradoxically, that "You intend to continue living with your girlfriend, and not to let her or the child down".
Counsel for the appellant contended that the learned sentencing judge ought not to have taken into account potential consequences of pregnancy on a young girl in future years, since there was no evidence that she had, in fact, experienced difficulties. Counsel for the respondent attempted to meet that critique by reference to a subsequent conviction for an assault which had occurred shortly after the appellant was interviewed by police as evidence supporting the conclusion stated by his Honour. Both contentions are rejected. The learned judge, in his comments, did no more than refer to the human experience in stating possible adverse consequences. He was entitled to do so and take these matters into account.
However, he regarded the case as serious and deserving of imprisonment "Because of the age difference, the duration of the relationship, and the unplanned pregnancy".
Laws prohibiting sexual acts or relationships with young persons are protective. Where, as here, the conduct is continual, the law attempts protection of those too young to exercise appropriate judgment. The ages defining that protection vary between societies and eras. They often take into calculation the age difference between the parties. The circumstances giving rise to sanction also widely vary, ranging from planned and serial predation to transient human passion. The wide variations in the circumstances of human conduct make it difficult to identify an appropriate or consistent response to human conduct. But there remains a need for consistency (DPP v C [2006] TASSC 72; R v Jurisic (1998) 45 NSWLR 209; Lowe v R (1984) 154 CLR 606; R v O'Brien 43/1987). The aim of the legislation is protective and the age for that protection fixed by Parliament at 17 years (DPP v C (supra)), but parental responsibility remains relevant to social and legal response. Here the parents of both parties to the relationship condoned the nature of that relationship and its continuation. K refused to make a statement of complaint. The appellant has shown a sense of responsibility for his conduct. Whether the forebodings of his Honour come to pass remains to be seen. Lengthy separation of the family unit through imprisonment might exacerbate the problems identified by his Honour. In that light, comparison with like cases is appropriate (Munday 2 December 2005; AMJ 21 September 2001; CLG 8 February 2001; S 13 April 2005; Hardwick 8 December 2004; C 22 June 2005, C 8 May 2006; Burton 1 February 2007; ARB 29 November 2006) which suggest that the sentence here imposed was inconsistent with the range of appropriate sanctions. While deterrence, both general and specific, are primary considerations (McDonald v R 47/1980) it has less import. K was permitted in law to marry at the age of 16 with court approval. She has continued in the relationship beyond that age. A sentence of 10 months actual imprisonment was inconsistent with the appropriate range and demonstrates excessiveness. The appeal ought be upheld.
The Court is conscious of the paradox dealt with by the learned sentencing judge. The primary aims in this case are the protection of the young woman and subjective deterrence of the offending partner. Prolonged detention might cause fracture to a relationship already fraught with difficulty. A sentence of imprisonment, partly suspended on a condition prohibiting violent conduct, might further the aim of stabilising that relationship. The appellant has served 1½ months of his sentence. Taking into account the circumstances of the case stated above, the appropriate sentence is one of four months' imprisonment commencing as and from 2 May 2008. The outstanding balance ought be suspended on condition that the appellant commit no crime or offence involving violence against the person or property for a period of two years.
File No 373/2008
P K D v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
30 June 2008
I have had the opportunity to read the reasons of Slicer J. I agree with both his reasons and the manner in which he proposes the appellant should be re-sentenced. I would however add one further comment.
It is acknowledged that, as the appellant and K will continue to live together on his release from custody, if he resumes a sexual relationship with K prior to her 17th birthday in October, he may be committing another crime which may in turn constitute a breach of the suspended sentence to be imposed. However the nature of the relationship between the appellant and K is a matter for them to determine in light of a sentence which this Court deems an appropriate one for past conduct.
File No 373/2008
P K D v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
30 June 2008
I have read the reasons for judgment of both Slicer J and Tennent J. I agree that for the reasons expressed by Slicer J, the appeal should be allowed. I am also satisfied, with respect, that in the circumstances of this particular case, the sentence proposed by Slicer J is an appropriate one.
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