R v Bartell
[2021] ACTSC 87
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bartell |
Citation: | [2021] ACTSC 87 |
Hearing Date: | 27 April 2021 |
DecisionDate: | 27 April 2021 |
Before: | Burns J |
Decision: | See [21] – [22] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – rolled-up charge – good prospects for rehabilitation – where offending involved power imbalance in employment relationship – consideration of importance of general deterrence in offences of this type |
Legislation Cited: | Crimes Act 1900 (ACT) s 55(2) |
Parties: | The Queen (Crown) Bradley Bartell (Offender) |
Representation: | Counsel K Marson (Crown) A Fraser (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 269 of 2020 |
BURNS J:
Bradley Bartell, you appeared before me today, 27 April 2021, to be sentenced with regard to one offence of engaging in sexual intercourse with a young person over
10 years of age, but under 16 years of age (CC 13637/2020) contrary to s 55(2) of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 14 years' imprisonment.
The offence to which you have entered your plea of guilty is what is referred to as a rolled-up offence. That means that a single charge has been laid encompassing what would ordinarily be a number of acts which could have been charged separately. There is a significant advantage to an accused in facing a rolled-up charge, because it reduces the maximum penalty that may be imposed to the maximum penalty for a single offence only.
The acts which constitute the present offence occurred between 10 and 14 March 2020. A comprehensive Agreed Statement of Facts was tendered. I do not propose reciting the facts. I will refer to some matters that are of greater significance to sentencing.
The facts
At the time of this offence, you were 20 years old and the victim was 15 years old. Both of you worked at a fast-food outlet in Tuggeranong, ACT. In May 2019 the victim commenced working at that outlet. You had been working there as a team member for some time. In February 2020 you commenced training as a shift manager. Your duties included supervising other employees, including the victim.
At the time of the offending, the victim knew that you were 20 years old and you knew that she was 15 years old. From a date in late February 2020, you commenced messaging the victim on Facebook. You also exchanged messages with her on Snapchat. Initially those messages were general and non-sexualised, but over time they became sexualised. During March 2020, you sent numerous messages to the victim on Snapchat requesting that she meet you outside of work hours and asking her to come to your house to “hang” out.
On 10 March 2020 you picked the victim up in your car from her mother's residence and you drove to your residence. You took her to your bedroom. She sat on the end of the bed and she ignored your requests that she come and lay down with you and cuddle. She sat on the end of the bed and chatted with other friends on Snapchat. You told the victim that you had engaged in sexual intercourse with a number of other people and told her of other people at the fast-food outlet who you said were having sexual relations. You asked the victim about her sexual history, but she did not discuss it with you. You later drove her home.
Between 10 March and 14 March 2020, you continued to engage with the victim on Snapchat and to ask her to attend your residence. You encouraged her to sneak out of her house without her parents' knowledge to meet you. One evening during that time she did so, and you drove her to your residence and took her to your bedroom. You then undressed yourself and the victim before engaging in digital penetration of the victim's vagina and cunnilingus. You then engaged in unprotected penile-vaginal intercourse but removed your penis from her vagina before you ejaculated. You and the victim then got dressed and you drove her home. You impressed upon the victim the need to keep secret what had occurred.
The victim later reported this matter to the police. On 4 June 2020, police executed a search warrant at your residence. In the course of the execution of that warrant, you made full admissions to engaging in sexual intercourse with the victim. You admitted knowing that the victim was only 15 years old at the time that you engaged in sexual intercourse with her. You also stated that you were fully aware that it was an offence for you to have sexual intercourse with the victim.
Objective seriousness
In assessing the objective seriousness of this offence, I take into account the age differential between yourself and the victim. You were 20 years old and the victim was only 15 years old. It was submitted that this offence involved a breach of trust, but I prefer to express it differently. There is a very real power imbalance between a 20 year old male and a 15 year old female, particularly in circumstances where the male is employed to supervise the female in a workplace.
I take into account that the offence involved three forms of sexual intercourse and that no form of protection was used by you when engaging in penile vaginal intercourse. I am also satisfied beyond reasonable doubt that your intention in engaging in sexualised communication with the victim prior to the offence was to encourage her to have sexual intercourse with you at some point. You sought to normalise this conduct in the mind of the victim in those discussions.
It was submitted on your behalf that the victim was only one week short of her 16th birthday at the time of this offence. The age of the victim is always an important consideration in determining the seriousness of offences of this nature. Generally speaking, the younger the victim the more serious the offence. The fact that the victim was nearly 16 years old at the time of this offence does not mitigate the offence. The Victim Impact Statement speaks of the harm that has been done to the victim by your conduct. The simple fact is the offence was committed and the victim was harmed by that offence. It is likely that she will continue to feel the consequences of this offence for some time.
This was clearly a serious offence. It is an offence which calls for a term of imprisonment, the only question being whether you should be required to serve a sentence of full-time imprisonment.
Subjective features
You are currently 21 years old and you have continuing family support in the ACT. You have no previous criminal history. You continue to reside with your parents and your sister. You are currently completing a Bachelor of Sport Science at university. You have been employed on a casual basis in the food service industry for about four years whilst you have been studying. You have no drug or alcohol issues that need to be addressed. You have engaged with a psychologist in the context of stress arising out of the present charge.
You told the author of the Pre-Sentence Report that you agreed with the Statement of Facts and that you acknowledged your actions were wrong. You were able to identify possible negative impacts to the victim and recognised that as an adult, responsibility rested with you. You were assessed by the author of the Report as being at a low risk of general re-offending and at an average risk of sexual re-offending. You will be referred to the Corrections Programs Unit for assessment of suitability to commence the New Beginnings and Pathfinder sex offender treatment program, if you are sentenced to a supervised community-based order.
On your behalf, a letter from Ms Pagan Ebsary, a registered psychologist, was tendered. It refers to you attending counselling via telephone on five occasions between September 2020 and January 2021. Ms Ebsary refers to symptoms of stress and depression associated with the present charge. She has engaged with you to address symptoms of this anxiety and depression.
A report from Dr Bruce Stevens, a clinical psychologist, dated 12 October 2020, was also tendered. Dr Stevens diagnosed you with an Adjustment Disorder with depressed mood. This diagnosis is consequent to being charged with the present offence. Dr Stevens noted that you have many positive qualities which will support your rehabilitation. He noted that you expressed remorse for your actions and accepted responsibility.
A number of testimonials were also tendered which speak of your demonstrated remorse and contrition. They speak of your commitment to your family and your engagement in pro-social activities. It is clear that they regard the present offending as out of character. In my opinion you have good prospects for rehabilitation.
I note that as a consequence of a conviction for this offence you will be placed on the child sex offenders register. I am not permitted to reduce the otherwise appropriate sentence because of this fact, but it is clear that the consequences for this offending will affect you into the foreseeable future. Of course, you have nobody to blame for this but yourself.
You entered an early plea of guilty for this charge. I will reduce by approximately 25 per cent the otherwise appropriate sentence to reflect your plea of guilty.
The predominant sentencing consideration regarding sexual offences against young people is deterrence. It is important that courts impose sentences designed to deter others from committing sexual offences against young people. I do not consider individual deterrence to be of particular significance in your case because I think it is unlikely that you will re-offend in a similar manner in the future. As I have said, I consider that you have good prospects for rehabilitation. Taking all matters into account, I will impose a sentence of imprisonment which is wholly suspended.
Sentence
I record a conviction and you are sentenced to 12 months' imprisonment commencing today, 27 April 2021, and expiring on 26 April 2022. I have reduced this from 16 months because of your plea of guilty.
That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of 18 months’ from today, 27 April 2021, with conditions:
·firstly, that you accept the supervision of the Director General responsible for adult corrections or that person's delegate for that period of 18 months or such lesser period as deemed appropriate by your supervising officer;
·secondly, that you comply with all reasonable directions of your supervising officer; and
·thirdly, that you undertake such assessments, programs and counselling as deemed appropriate by your supervising officer.
[Speaking directly to offender]
I have sentenced you to a term of 12 months' imprisonment, but that is suspended upon you complying with the terms of a Good Behaviour Order for a period of 18 months. That will require you to accept the supervision of Corrective Services for that period of 18 months or a lesser period if they think it is appropriate. You will also be required to accept all supervision and comply with all supervision requirements, including undertaking any assessments, programs or counselling as you are directed to.
If you comply with the terms of the Good Behaviour Order you will not be required to serve any term of full-time imprisonment. If, however, you breach any of the terms of that Good Behaviour Order or if you commit another offence during the period of that Good Behaviour Order then you may be brought back before the Court for me to deal with you on a breach of these orders, at which time that term of imprisonment may be imposed.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |