R v Bergin

[2004] SADC 166

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v BERGIN

Reasons for Decision of His Honour Judge Bishop

24 November 2004

CRIMINAL LAW

Defendant admitted to having had sexual intercourse with a girl 14 years of age - dispute as to whether the defendant knew that the girl was under 17 years of age or whether he believed that she was 17 years of age - onus on prosecution to establish beyond reasonable doubt any circumstance of aggravation - onus on defendant to establish on balance of probabilities any circumstance of mitigation - onus on defendant established.

Criminal Law Consolidation Act 1935; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, at 369; R v Lobban [2001] 80 SASR 550, at 556, referred to.

R v BERGIN
[2004] SADC 166

Judge Bishop

Criminal

1. Mark Christopher Bergin (“the defendant”) pleaded guilty in the Elizabeth Magistrates Court and was committed to this Court for sentence upon a charge of having had sexual intercourse with K, a person (female) of the age of 14 years, on 13 March 2003 at Elizabeth North: contrary to section 49(3) of the Criminal Law Consolidation Act, 1935 (“the Act”) which makes it an offence for a person to have sexual intercourse with a person of or above the age of 12 years and under the age of 17 years.  For sentencing purposes, dispute arose as to the defendant’s understanding of K’s age at the time of this admitted offence.  Because, at that time, K was 14¾ years old (she was born on 11 June 1989 and then a student in year 9) and the defendant was 21¾ years old (he was born on 21 May 1982), there was no statutory defence available, as there would have been (pursuant to section 49(4)) if K had been of or above the age of 16 years and either the defendant had been under the age of 17 years or he believed on reasonable grounds that K was of or above the age of 17 years.

2. For the prosecution, Ms Sophie Downey contended that the defendant was aware or knew that K was not legally capable of consenting to sexual intercourse; that his conduct was predatory in nature; and that findings to that effect should be made, beyond reasonable doubt, in aggravation of this offence.  For the defendant, Mr Brian O’Reilly contended that, as a mitigating feature it should be found, on the balance of probabilities, that the defendant genuinely believed that K was then 17 years old.

3. In the sentencing process, circumstances favourable to a defendant may be taken into account if established on the balance of probabilities, while circumstances adverse to a defendant may be taken into account only if established beyond reasonable doubt (R v Olbrich (1999) 199 CLR 270, adopting R v Storey [1998] 1 VR 359, at 369; see also R v Lobban [2001] 80 SASR 550, at 556).

4. In resolution of this dispute, statements were tendered and witnesses were called.  From the material presented, the following position was established. On Saturday 13 March 2004, K (who lived with her father) was with her 13 years old sister at the Elizabeth North house of their mother.  After lunch, the two girls went for a walk to nearby shops.  As they passed a house, the defendant called out to K.  He was standing out the front of that house with another man and the tenant, Ms Tara Faul.  K began talking with the defendant.  They exchanged names and ages.  (According to K, she told the defendant that she was 14 years old and he told her that he was 17.)  She told him that she rode motorbikes off the road.  Her sister departed and returned to their mother’s house.  K then walked to the shops with the defendant, who bought a drink.  They then walked to the house where the defendant resided.  After watching TV, K unsuccessfully tried to telephone her mother from the defendant’s bedroom, because other persons had arrived.  After some kissing and foreplay, K and the defendant there engaged in sexual intercourse, for which purpose, and at her instigation, the defendant wore a condom.  K had not previously had sexual intercourse.  She told the defendant that it hurt, but did not ask him to stop.  (In evidence, K said that she afterwards told the defendant that it was the first time that she had had sexual intercourse.)  The defendant told K that he wanted to see her again, gave her his mobile telephone number (inadvertently omitting a zero) and, in the dark, walked with her near to her mother’s house.

5. The next day, K again walked to the shops.  She saw Ms Faul, who (according to K) told her that the defendant was saying bad things about her, including that he had sex with a 17 year old virgin.  On Monday 14 March 2004, K separately told two friends, at school, what had happened.  Two weeks later, on Monday 22 March 2004, K made her statement to the police.

6. In cross-examination, K denied having told the defendant that she was 17 years old.  She also denied that he had told her that he was 21 years old.  She thought he had remarked that she appeared to be a bit short.  (K gave her evidence via CCTV.  Other witnesses said that she was about five feet tall.)  She said that she never lies about here age.

7. When arrested and questioned by the police on 27 March 2004, the defendant frankly admitted this offence.  He said that, when he first spoke with K, he asked her age.  She told him that she was 17 years old.  He told her that he was 21 years old.  (To the police he said, “I’ve got no reason to lie”.)  They went to his house and “ended up having sex”.  On first impression, he thought that K was “15 or 16 or something like that”, but she told him that she was 17.  He said, “You’re a short arse for your age”.  She replied, “Yeah, I get that a lot”.  He was a little wary, at first, “but she didn’t seem to be full of crap”.  He told the police that K had said, in reply to him before they had sexual intercourse, that she was a virgin.

8. The defendant here gave evidence consistently with what he had told the police.  He was quite candid.  In his words, “I believed she was of age, I believed what she told me” (T132).  He admitted to having later bragged to his friends that he had ‘got with a 17 year-old virgin’, but denied having said that he ‘fucked an underage virgin’ (T113).  In no respect was he contradicted or shaken in cross-examination.  (Similar remarks may also be made of K and her evidence.  Both were ostensibly honest witnesses.)  I did not perceive that the defendant’s conduct had been predatory in nature; rather that, throughout the many hours that they were together that day, his behaviour towards K was affectionate and considerate. 

9. In these conflicting circumstances, it became relevant to consider the evidence of the other witnesses and ascertain whether there was any support for the evidence of either K or the defendant.

10. In her statement, Ms Tara Faul said that she saw “one of the girls” talking to the defendant “out the front”; that the girl “looked about 12 or 13 years old”; that she heard the girl say how old she was (“I think she said she was 12 or 13”); that she later heard the defendant say “She told me that she was a virgin”, but not how old he thought she was; and that, next day, she told K what the defendant was saying about her and K told her that she was only 13 years old.  In evidence, however, Ms Faul said that the girl whom she saw talking “out the front” was the younger of the girls; that she thought the other girl was about 16 years old [K’s sister was then 13 years old]; that she did not hear what the girl and the defendant were saying; and that, later, she only heard the defendant say “I had sex with her” and the topic of her age was never raised.  In view of her inconsistencies and unfortunate intellectual disability (of which her mother spoke), I did not consider that any reliance could be placed upon what was said by Ms Faul.

11. In the statement of Ms Faul’s mother (who saw K talking “out the front” with the defendant), K “looked about between 14 and 15 years old”.  In evidence, she thought that K was ‘not much older than her 14 year-old”; that, at a distance, ‘she would have said that she would have been at least 18’; and that, ‘up close’, she wouldn’t be much older than 15.  (Upon observing K on the CCTV, I was not able to estimate her age and would not like to make an estimate from the two photographs which were tendered.  The difficulty in estimating the ages of females is well recognised, especially when not wearing school uniforms.)

12. According to the statement of Mr William Chancellor (who is now 20 years old and was then the boyfriend of Ms Faul), he saw a “young girl” talking with the defendant.  She was about 13 years old.  The defendant approached him and said that he was going to “take this girl home and root her”.  Mr Chancellor asked “What, how old is she?”  The defendant replied, “About 13”.  A couple of hours later, the defendant returned and said, “I just fucked a virgin”.  He was bragging about how he had sex with such a young girl.  In evidence in chief, Mr Chancellor confirmed that the girl looked about 12 or 13; and that, when the defendant returned, he said “I slept with an underage girl that was a virgin”.  In cross-examination, however, he said that, when the defendant returned, he did not mention “underage”, at all, but later that night did say how old she was.  Mr Chancellor could not remember how old he said, “but they were talking about the age was about 13 or 14 years old”.  I felt uneasy about placing any reliance on Mr Chancellor’s evidence.  Overall, I did not derive any assistance from those other witnesses in resolving this factual dispute.

13. Having considered all of the evidence and bearing in mind the differing burdens of proof here applicable, I am not satisfied beyond reasonable doubt that, at the time of this offence, the defendant was aware or knew that K was not legally capable of consenting to sexual intercourse.  Upon the balance of probabilities, I am persuaded that the defendant believed that K was then 17 years old.  Upon this resolution, the defendant shall be sentenced.