R v CC

[2016] ACTSC 324

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v CC

Citation:

[2016] ACTSC 324

Hearing Date:

8 November 2016

DecisionDate:

8 November 2016

Before:

Elkaim J

Decision:

(i) The young person is convicted of the offence of engaging in sexual intercourse with a young person under the age of 10 years, in contravention of s 55(1) of the Crimes Act 1900 (ACT).

(ii) An order under s 9(2) of the Crimes (Child Sex Offenders) Act2005 (ACT) that the young person is not a registrable offender.

(iii)        The offender is to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of 18 months with the following conditions:

(a)  the offender sign an undertaking to comply with the conditions of this order;

(b)  the offender be of good behaviour for a period of 18 months to commence on 8 November 2016;

(c) the offender comply with the offender’s good behaviour obligations, including the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT);

(d)  the offender is to accept the supervision of the Child and Youth Protection Services director-general and obey all reasonable directions of the Child and Youth Protection Services director-general or their delegate for a period of 18 months; and

(e)  the offender is to attend educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Child and Youth Protection Services director-general or their delegate particularly noting the recommendations of Dr Katie Seidler, Clinical and Forensic Psychologist in her report dated 19 September 2016.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – offences against the person – engaging in sexual intercourse with a person under 10 years – young offender – plea of guilty

Legislation Cited:

Crimes Act 1900 (ACT), s 55(1)

Crimes (Child Sex Offenders) Act 2005 (ACT), ss 9(2), 9(3)(d)(e)
Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86
Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 17, 33(1)(za), 133C, 133D, 133G

Cases Cited:

OH v Driessen [2015] ACTSC 148

OH v Driessen(No 2) [2015] ACTSC 354
R v BO (No 2) [2014] ACTSC 371

The Queen v CV [2013] ACTCA 22; 233 A Crim R 67

Parties:

The Queen (Crown)

CC (Offender)

Representation:

Counsel

Ms M Moss (Crown)

Mr A Doig (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Daryl Perkins Solicitor (Offender)

File Number:

SCC 90 of 2016

Publication Restriction:

The names of the complainant and offender are suppressed.

ELKAIM J:

1. On 18 July 2016, the young person pleaded guilty to one count of engaging in sexual intercourse with a young person under the age of 10 years, in contravention of s 55(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 17 years imprisonment.

1. The offence occurred on 6 December 2014. The young person was then 15 years of age and the victim was seven years of age.

The offence

1. The young person and the victim were in a bathroom together. The offender engaged in penile-anal intercourse with the victim.

1. The victim has an intellectual disability. His speech and general development are significantly delayed. He lives with his mother and older sister.

1. On 6 December 2014 the victim and his sister attended a family function at the residence of a family friend. The young person and his mother were also present.

1. During the course of the evening the young person and the victim were playing in a bathroom. Both of their pants were removed or pulled down. Some touching occurred and then the young person inserted his penis into the victim’s anus. The victim did not like what had occurred.

1. Later in the evening, under questioning, the victim revealed to his mother what had happened. The following day the young person was confronted with the allegation. He initially denied any involvement but later, in answer to the question: “Did you put your penis in the victim’s bum, be honest”. He replied “Mm sort of”.

1. Five days later the victim was taken to the Canberra Hospital and in particular to the Child at Risk Health Unit. An examination did not reveal any sign of trauma to the victim’s anus. He was swabbed for syphilis, hepatitis B & C and HIV. After three months of no doubt anxious waiting, the results were negative.

1. On 15 December 2014 the young person was interviewed by police. He admitted the offence and said “then I just don’t know what went through my mind.... After that. I just went blank.... Then something – then something happened.... I somehow just had my dick in his bum. Don’t know how”.

1. He also said that he hated himself “for doing it, and I do know that my family is not happy with me.”

The young person’s background

1. The young person was born in the ACT in 1999. He is an only child. He lives with his parents in New South Wales. He appears to have a supportive relationship with his parents. The young person is currently in Year 10. He has some learning difficulties and has a private tutor once a week.

1. Although the young person occasionally has alcohol with his father or uncle he is not a regular user of alcohol and has had no involvement with illegal drugs. He seemed to have a girlfriend who was in Year 9 but the exact nature of the relationship is not known.

1. The young person has a number of hobbies and interests including riding motorcycles and playing video games.

1. The young person has not had any other involvement with the police and he has complied with all of his bail conditions.

1. I have been referred to the report of a psychologist, Dr Seidler, dated 19 September 2016. She in turn referred to a number of previously prepared psychologist’s reports. Some of these are included in the material before me.

1. Dr Seidler records that the young person had been the victim of one occasion of sexual abuse when he was a child, perpetrated by a teenager.

1. Dr Seidler carried out a psychometric assessment of the young person. The testing found him to be “generally free of major vulnerabilities or limitations”. He does however have a mild intellectual disability. There is also a suggestion of a mild autistic spectrum condition.

1. Dr Seidler noted that the young person, “was born with some vulnerabilities physically and he apparently suffered with serious attention and learning problems from a young age. This led to his having difficulties fitting into a mainstream educational program, such that he was ostensibly excluded from his first school, which was an event that challenged (his) self-esteem and resulted in some symptoms of low mood. (He) has since settled at school and despite investing significant effort, he really struggles to achieve, which is disappointing. I am aware that (he) has been diagnosed with a mild intellectual disability but I also wonder if he has a verbal learning deficit, as his adaptive and executive skills are seemingly intact for his age.”

1. In relation to his mental health, Dr Seidler notes the diagnosis of Attention Deficit Hyperactivity Disorder and the medication he has been taking.

1. In relation to the offence Dr Seidler says: “I suspect that (he) was motivated to offend by sexual curiosity and opportunity. That is, rather than his behaviour being indicative of a pattern of sexually abusive intent and conduct, it seems best explained by the clumsy, inappropriate and ultimately abusive attempt at experimenting sexually with a complying child, who would not challenge (him) or reject him like many of his peers might allow.”

1. Dr Seidler disagreed with earlier assessments which suggested there was a moderate risk of reoffending. She placed the risk much lower. I agree with Dr Seidler’s assessment. In relation to the effect of imprisonment on the young person Dr Seidler said: “However, (he) does have the capacity to learn and he is inherently respectful of authority and aware of consequences. Notwithstanding, he would be highly vulnerable in the antisocial world of custody, especially away from his parents.”

1. Dr Seidler discussed the future. She said that the young person “would gain from intervention with a specialist clinician designed to assist him in developing greater insight into the antecedents to his offending behaviour and the possible consequences for his victim.”

Sentencing

1. On one level the offence can be regarded as very serious especially because of the age of the victim. However I also take into account the analysis of the offence by Dr Seidler and the fact that there was not a repeated assault within the same incident. I think the offence should be regarded overall as approaching medium objective seriousness.

1. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. Sections 133C and 133D are also important in relation to sentencing young offenders. I am also particularly mindful of s 133G concerning the sentencing of a young offender to a term of imprisonment.

1. It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). I have had particular regard to these cases: OH v Driessen [2015] ACTSC 148, OH v Driessen (No 2) [2015] ACTSC 354, The Queen v CV [2013] ACTCA 22; 233 A Crim R 67 and R v BO (No 2) [2014] ACTSC 371.

1. I must also take into account that the young person pleaded guilty and he has no other criminal record. I also accept his expressions of remorse as related in paragraph 41 of Dr Seidler’s report.

1. Generally in crimes of sexual assault of a child there is only one victim, namely the child. In this case however, the Court cannot overlook the subjective elements that apply to the young person and the Court must be concerned to ensure that he has every chance for rehabilitation especially with the background of his very supportive family who are likely to assist in this endeavour.

1. In addition, I think this is a case in which the placing of the young person on the sex offender register is a relevant consideration. I particularly note the comments on this approach in The Queen v CV [2013] ACTCA 22; 233 A Crim R 67. However the law now recognises, through the amendments to the Crimes (Child Sex Offenders) Act 2005 (ACT) that a young offender must not necessarily be placed on the register (s 9(2)). The young person has made an application under this section.

1. I think the application should be granted because it allows for the recording of a conviction recognising the seriousness of the offence but also allowing for the prospects of rehabilitation and the young person becoming a contributing member of adult society. I think the considerations in s 9(3)(d) & (e) are especially relevant.

1. The young person, through his learned counsel, requested that he be dealt with without the recording of a conviction, pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). I was also referred to s 133C and of the need, when dealing with young persons, to apply a degree of individualised sentencing and to focus on rehabilitation. In this case I think there is good ground for the request but ultimately do not think it can be granted because of the seriousness of the offence, the impact on the victim (and his mother) and the need for the public to be reassured that offences against young children are appropriately dealt with.

1. In coming to any conclusion on sentence, regard for general deterrence and most particularly regard for the victim, and what he has endured, must also be at the forefront of considerations of sentence.

1. In this regard I have taken into account the victim impact statement dated 1 March 2016. It is apparent that the harm extended to the victim’s mother.

1. I make the following orders:

(i)The young offender is convicted of the offence of engaging in sexual intercourse with a young person under the age of 10 years, in contravention of s 55(1) of the Crimes Act 1900 (ACT).

(ii)An order under s 9(2) of the Crimes (Child Sex Offenders) Act2005 (ACT) that the young person is not a registrable offender.

(iii)The offender is to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of 18 months with the following conditions:

(a)the offender sign an undertaking to comply with the conditions of this order;

(b)the offender be of good behaviour for a period of 18 months to commence on 8 November 2016;

(c)the offender comply with the offender’s good behaviour obligations, including the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT);

(d)the offender is to accept the supervision of the Child and Youth Protection Services director-general and obey all reasonable directions of the Child and Youth Protection Services director-general or their delegate for a period of 18 months; and

(e)the offender is to attend educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Child and Youth Protection Services director-general or their delegate particularly noting the recommendations of Dr Katie Seidler, Clinical and Forensic Psychologist in her report dated 19 September 2016.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence  of his Honour Justice Elkaim

Associate:

Date: 8 November 2016