R v CO
[2017] ACTSC 391
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CO |
Citation: | [2017] ACTSC 391 |
Hearing Date: | 11 December 2017 |
DecisionDate: | 15 December 2017 |
Before: | Penfold J |
Decision: | 1. The Court determines that including the offender on the child sex offenders register is inappropriate. 2. The Court sentences the offender as set out at [62] to [64] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –offender aged 17 at time of offences – sexual intercourse with person under the age of 16 years – acts of indecency upon a person under 16 years – sexual activity involving two young people in relationship – offences of low-range seriousness – not clear that no penalty other than imprisonment would be appropriate – conviction, good behaviour order and community service obligation sufficient to indicate community disapproval – inappropriate to include offender on child sex offenders register. |
Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT), ss 8(1)(a), 9, 9(2), 9(2)(b), sch 1 Crimes (Sentence Administration) Act 2005 (ACT) Supreme Court Act 1933 (ACT), s 68D Explanatory Statement, Crimes (Child Sex Offenders) Act 2005 (ACT) |
Cases Cited: | R v CV [2013] ACTCA 22; 233 A Crim R 67 R v EO [2017] ACTSC 138 R v Sheedy [2016] ACTSC 256 |
Parties: | The Queen (Crown) CO (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Mr M Kukulies-Smith (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Numbers: | SCC 201 of 2017; SCC 232 of 2017 |
The offences
CO has pleaded guilty to one offence of engaging in sexual intercourse with a person under the age of 16 years, arising under s 55(2) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 14 years.
In sentencing CO, I am also asked to take into account three offences of acts of indecency upon a person under 16 years, arising under s 61(2) of the Crimes Act and carrying a maximum penalty including imprisonment for 10 years.
Curiously, the three offences to be taken into account came to the Supreme Court by way of a purported committal under s 90B of the Magistrates Court Act 1930 (ACT) of related offences as defined in s 68D of the Supreme Court Act 1933 (ACT). However, since the offence in connection with which they were committed to the Supreme Court was not committed for trial as specified under s 90B, it is not clear that this was available. Nor is it clear that there is anything I need to do or can do with the charges that have been transferred. On the other hand, I cannot see any problem with taking the relevant offences into account in sentencing, since the provisions of pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) appear to have been complied with.
The incidents
The circumstances in which these charges arose developed over two and a half weeks in February and March 2017.
The following summary is drawn from the agreed statement of facts.
CO and the victim met through their part-time employment in a retail business operated by the victim's parents. CO knew that the victim was only 13. After each of them developed a romantic interest in the other, which emerged in an exchange of text messages, they began to meet outside work, deliberately keeping their involvement hidden from the victim's family and others.
A brief encounter in the park near Lake Ginninderra involved CO touching the victim's buttocks but being refused permission to kiss her or touch her breasts. The touching of her buttocks gave rise to the first of the scheduled offences.
Several days later, CO and the victim met in Belconnen Mall and spent some time sitting in CO’s car, in a part of the Mall car park that apparently afforded a degree of privacy. During this time, CO touched the victim’s buttocks and breasts with his hands, while they kissed. This touching was the second scheduled offence.
On the following day, CO and the victim met again at Belconnen Mall and sat in CO’s car. On this occasion, CO masturbated to ejaculation, in the course of which he put the victim’s hand on his penis and told her to squeeze and rub her hand up and down his penis, which she did for some 20 seconds. This was the third scheduled offence.
Over the next several days, there were further text message exchanges about possible sexual activity, including references to the victim being only 13, to which CO replied by a text message to the effect “But you’re my girlfriend.”
On 14 March 2017, the two met again at Belconnen Mall and went to CO’s car. The victim fellated CO for some 30 seconds before trying to stop, but he said “keep on going”. She continued for another 10 seconds, after which CO ejaculated partly in to the victim’s mouth and partly on to himself. The victim was shocked, and spat the ejaculate on to a paper towel. This was the act of sexual intercourse without consent, fellatio falling within the Crimes Act definition of sexual intercourse.
The day after the incident, the victim’s parents found messages on the victim’s mobile phone, and police were informed shortly afterwards.
The statement of facts also refers to a number of text message conversations, including ones about what kinds of sexual acts the victim would be willing to perform and messages suggesting that the victim’s willingness reflected her affection for CO and her fear of losing him. There were also text messages from CO pointing out that the decisions were up to the victim, that he didn’t want to pressure her and that he was worried that it was “too much” for her. After the sexual intercourse, the victim appears to have told a friend that she was “dating” CO, and he found this out. CO was angry and told the victim that they should stop dating, because of the age difference, and just be friends. The victim was not happy about this, and was not persuaded by CO’s comments, described in the statement of facts as follows.
[CO] told [the victim] that he did not feel good about himself after what they did the day before because she was too young and it was wrong. He told her that he knew she was not ready to continue a sexual relationship. He told her that he did not want her to feel like she had to have sex with him so that he stayed with her.
The victim pointed out to CO that he had not thought she was too young on the previous day. When she challenged him that if she had let him do more stuff to her on that day he would not have ended the relationship, he agreed.
Most of the text messages referred to in the statement of facts are not quoted, and even if they had been, it would not in my view have been possible to form a view about what those messages actually conveyed about what was in the minds of the two participants at the time, in particular, about why the victim participated in CO’s escalation of their sexual activity and about why CO announced the end of the relationship when he did.
However, I cannot be satisfied beyond reasonable doubt that CO deliberately manipulated the victim’s affections to get her to consent to sexual activity against her own inclinations, nor that the sexual activity took place other than in an affectionate relationship. This of course only excludes what might otherwise be seen as aggravating factors of the offences concerned, which are committed irrespective of any apparent “consent” by the victim, even if the “consent” was given absolutely unconditionally rather than, as suggested in this case, in the hope of maintaining a relationship.
CO was arrested on the day after the victim’s parents reported the matter, and took part in a taped record of interview with police. After he was charged, he was released without bail, and he has spent no time in custody in respect of these charges.
CO indicated a plea of guilty to the sexual intercourse charge in the Magistrates Court on 5 June 2017. After representations to the Director of Public Prosecutions were made and considered, the matter returned to the Magistrates Court on 17 July 2017 for the plea of guilty to be taken formally, and in due course the matter was committed to the ACT Supreme Court for sentence. I accept this as an early plea, and it will be taken into account in sentencing. I note that the effect of CO’s guilty plea was, among other things, to spare the victim the need to appear in court and tell her story.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)victim impact statements made by the victim and her mother; and
(b)a court duty report prepared on 11 December 2017;
all of which were tendered by the prosecution. As well, the defendant tendered:
(a)a report from psychologist, Dr Cristian Torres, dated 2 December 2017 and attaching briefing material provided to Dr Torres; and
(b)a written apology from CO that he offers to the victim and her family; I note that the letter was written very recently, has not been passed on to the victim, and was not read in court. Defence counsel said that it was not appropriate for the defence to convey the apology to the victim in any way and that whether the victim and her family wished to receive the apology would be determined by the victim support worker, who could pass it on if appropriate.
As well, CO gave oral evidence, to which I shall refer as relevant.
Objective seriousness
In considering the objective seriousness of the offence, I have had regard to the following matters.
Because a person under 16 cannot at law give consent to sexual intercourse or an act of indecency, the relevant offences can take a wide range of different forms, covering everything from a violent sexual activity inflicted by an adult stranger in frightening circumstances to less intrusive kinds of sexual activity between two young people engaged in, without resistance from and possibly even with enthusiasm by, the victim.
The current offences fall at the lower end of that spectrum.
It is clear from the text messages that sexual activity was contemplated by both parties in advance of it occurring.
As to remorse, there is some indication of remorse in the statement of facts description of CO’s ending of the relationship, although there may be other interpretations to put on his actions.
However, Dr Torres reports a clear indication of remorse from CO as follows:
[CO] has expressed remorse about his offending behaviour. He does not present as a young man who is inherently antisocial or criminal in orientation. From the outset [CO] has not sought to minimise his behaviour, nor its impact upon his victim, but rather has genuinely sought to explore and understand how he came to behave the way that he did, with a view to ensuring that this behaviour does not recur for him. He has engaged productively and genuinely in treatment, including between session tasks and exercises designed to further encourage cognitive processing of various therapeutic themes, such as victim empathy, the use of pornography, etc.
The author of the court duty report commented on CO’s attitude to the offences as follows:
[CO] agreed with the AFP Statement of Facts in relation to the offences. He acknowledged his offences were unlawful and accepted responsibility for his actions. [CO] identified the psychological impact his behaviour would have had on the victim and her family. He also acknowledged the negative impact the offences have had on his family.
In oral evidence, CO said
I felt guilty after [the sexual acts] happened, realising that it was wrong at the time, and I believed that the only way that I could stop that was to end the relationship.
He accepted responsibility for all the actions, saying they were all his doing, and agreed that he knew it was illegal to have a sexual relationship with a 13-year-old, but that he had not considered the consequences at the time. He agreed that at times, for his own sexual gratification, he had encouraged and reassured the victim about engaging in sexual acts despite her reluctance.
CO also gave evidence that as a result of his engagement with Dr Torres, he now understood the problems arising from a relationship involving a power imbalance.
Victim impact statements
I turn now to the victim impact statements. The victim’s statement, which she bravely read out in court, recorded her happiness during the brief period when she felt she was in a loving relationship with CO, and her significant distress after the relationship ended and her parents found out about it.
She described her parents’ disinclination to trust her for some time afterwards and her unkind treatment by former school friends, including the wide dissemination of versions of the story over an extended period. It is not clear from the victim impact statement whether this treatment resulted from widespread knowledge of her relationship with CO or from the results of the relationship coming to light. Either way, difficulties with peers for one reason or another may well be a risk of this kind of relationship. The victim also described suicidal thoughts and self-harm which she did not feel able to disclose to anyone including her psychologist, flashbacks, a drop in her school grades, lowered self-esteem, and much time spent crying. It is clear that her relationship with CO has not, overall, been good for her.
The victim’s mother also read a victim impact statement. It confirmed the victim’s suffering after the matter came to light, and the problems, both practical and emotional, that have been caused within the victim’s family, problems which are yet to be fully resolved, and indeed may never be fully resolved. This case provides a good example of the reasons why sexual activity involving children is proscribed, although it also provides an indication of the pressures facing adolescents living in a highly sexualised world, and particularly of the fact that their extensive knowledge of sexual matters does not bring with it the emotional strength to cope when sexual activity is added to emotional immaturity.
On balance, and noting in particular the wide range of fact situations covered by offences of these kinds, I consider that CO’s offences are of low-range seriousness, although this should not be seen as suggesting that I underestimate the traumas resulting from them.
Subjective circumstances
I have also had regard in this sentencing to CO’s subjective circumstances.
CO was 17 at the time of the offences and is now 18. He has no criminal history.
Due to some administrative confusion, no pre-sentence report was prepared for CO, and instead a brief court duty report was prepared on the day of the sentence hearing. Fortunately Dr Torres, in his report, had addressed many of the issues that would have been dealt with in a pre-sentence report.
CO lives with his mother and stepfather, his mother having left a violent relationship with his birth father when CO was two years old. He has positive and supportive relationships with both his mother and stepfather, and occasional contact with his birth father.
He had been sexually active, but with age-appropriate partners, for some months before beginning his relationship with the victim. Since being charged with the current offences, CO has abstained from sexual activity and is not in a relationship. He has also suffered depression and anxiety symptoms, sleep disturbance, attention and concentration issues and a sense of helplessness about the legal processes. He has become somewhat socially isolated since his car was seized by police. Dr Torres reports, however, that CO’s psychological functioning has improved recently.
CO finished Year 12 with an average level of academic achievement and has been mostly employed since then. He lost both of his jobs when these offences came to light, but has since found two new part-time jobs, and is exploring the possibility of joining the Australian Defence Force.
CO has not used illicit substances, but it seems that he abused alcohol for some period until significantly reducing his alcohol use after a negative experience in July 2016. The court duty report noted that an alcohol use disorders identification test assessed CO’s alcohol consumption over the last 12 months as at a low risk level, although this seems to be inconsistent with Dr Torres’ reference to the same test. There is, however, no suggestion that alcohol use was relevant in the current offences.
The description of the incidents of sexual activity giving rise to the offences suggests that the victim was a co-operative rather than enthusiastic participant, although a couple of the text messages mentioned in the statement of facts might have given CO the impression of enthusiasm on her part. However, there is no doubt that CO alone must take responsibility for these offences, noting:
(a)the age difference between him and the victim;
(b)the fact that he, although not an adult for most purposes, was recognised at law as being old enough to give consent to sexual activity; and
(c)that in general, it was CO who initiated each development in sexual intimacy (although I do not overlook the text message in which the victim suggested that when they met up again “maybe … we could do more”).
I have already quoted Dr Torres’ report of CO’s attitude to his offending behaviour. Although CO has completed his initial engagement with the psychologist, Dr Torres also reported:
I discussed with [CO] the possibility of ongoing sessions at our most recent session and he expressed a desire to perhaps continue with regular albeit less frequent contact for the purposes of ongoing support and follow-up. He had reported to find the sessions very useful and was contemplating continuing interventions.
Because only a court duty report was prepared, there is no specific material before me about CO’s risk of re-offending or suitability for particular interventions, and I can see no other particular rehabilitation needs that should be addressed.
The court duty officer noted that CO might benefit from a period of supervision, and also found him suitable for community service.
Other sentencing considerations
I have already commented on the need to deter premature sexual activity; in particular, teenage boys need to recognise the need, in everyone’s interests, to avoid sexual activity with under-age girls even if those girls seem to be willing, and so general deterrence is a relevant consideration. I suspect there is little need for specific deterrence in this case. I doubt that CO will repeat these mistakes.
Because CO was under 18 when he committed these offences, s 133C of the Crimes (Sentencing) Act requires me to consider the purpose of promoting his rehabilitation, and notes that I may give more weight to that purpose than to any other sentencing purpose, and that I must have regard to the common law principle of individualised justice. Section 133D requires me to take into account:
(a)CO’s culpability for the offences having regard to his maturity;
(b)his state of development; and
(c)his past and present family circumstances.
I have referred already to the information that is available to me about those various matters. Section 133G of the Crimes (Sentencing) Act importantly provides that a sentence of imprisonment may only be imposed on a young offender as a last resort and must be for the shortest appropriate term.
Counsel also drew to my attention a number of cases that had been identified as possibly comparable cases, or cases reflecting current sentencing practice. The cases appeared to have been chosen mainly because they involved girls of a similar age to the victim in this case, with ages ranging, in fact, from 7 to 15 years.
I have already mentioned the wide range of cases covered by the offences I am dealing with. The cases identified by counsel make clear the substantial distinction drawn between sexual activity involving two young people conducting something in the nature of a boyfriend/girlfriend relationship and those involving an adult man (often a considerably older man) taking advantage of a young girl, often after deliberate grooming.
This case, in my view, falls squarely into the former category. Perhaps inevitability, CO at 17 was both more focused on sexual relationships and more interested in pushing the boundaries of sexual activity in such relationships than the victim was, but it seems that there was also considerable affection between them for a period, and that the victim, while clearly persuaded into activity she would not have instigated, was not forced into anything.
Accordingly, the cases identified that seemed to be the most closely comparable to this case are all ACT cases, being:
R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012);
R v CV [2013] ACTCA 22; 233 A Crim R 67 (CV);
R v SA (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 7 June 2013);
R v Goboly [2016] ACTSC 322;
R v Sheedy [2016] ACTSC 256; andR v EO [2017] ACTSC 138.
At one extreme in terms of sentences imposed is CV, which involved a 16-year-old boy who had been misled by the victim about her age, and in which the judge's refusal to record a conviction was upheld on appeal. At the other extreme are several cases in which prison terms were imposed, but fully suspended, and one in which a prison term was added to other sentences already being served in custody by an offender who was some years older by the time he came to be sentenced. That particular sentence related to an offence of digital penetration of a 13-year-old who had made it clear that she did not want that to happen. In between those two extremes, there is one case in which the offender was convicted and ordered to complete a good behaviour order involving 100 hours of community service.
The cases in which sentences of imprisonment, albeit fully suspended, were imposed seem to me all to involve offences that were slightly more serious than CO's offence, for one or more reasons such as that the offenders were adults (albeit young adults), that the offence resulted in pregnancy (which was not a risk in the current case), or that there was a degree of force used.
Having regard:
(a)to the facts of this case;
(b)to CO's age, his remorse and acceptance of responsibility, and his engagement in rehabilitative work with his psychologist;
(c)to the more general importance of rehabilitation in the sentencing of young offenders; and
(d)in particular, to the legislative requirement that a prison term should only be imposed on a young offender as a sentence of last resort and for the shortest possible time;
I cannot be satisfied in this case that no penalty other than imprisonment would be appropriate. Rather, I consider that a conviction, a good behaviour order and a community service order will be adequate to make clear to CO the community's disapproval of his actions, without inhibiting his long-term prospects of becoming a valued adult member of the community.
Child sex offenders register
The offence of sexual intercourse with a person under the age of 16 years is a Class 1 registrable offence under the Crimes (Child Sex Offenders) Act 2005 (ACT) (Sex Offenders Act).
Once I have sentenced CO for a Class 1 registrable offence, he will be a registrable offender under s 8(1)(a) of that Act unless he is exempted under s 9.
Section 9(2) provides that a person is not a registrable offender if:
(a)he was a young person at the time of the relevant offence; and
(b)a court considers, on application by the defence, that including the person on the register is inappropriate in the circumstances of the case.
Because CO was a young person, that is, a person under the age of 18, at the time of the offences, defence counsel has asked me to determine, under s 9(2)(b) of the Sex Offenders Act, that including CO on the child sex offenders register is inappropriate in the circumstances of this case. In considering making such a determination, I must consider a number of matters, being:
(a)the severity of the offence and the seriousness of the circumstances surrounding the commission of the offence;
(b)the age of the person at the time of the offence;
(c)the level of harm to the victim and the community caused by the offence;
(d)any attempts at rehabilitation by the person;
(e)whether the person poses a risk to the lives or sexual safety of one or more people or of the community; and
(f)any other circumstances that the court considers relevant.
I have already in my sentencing remarks canvassed most of those matters, none of which appear to exclude such a determination in relation to CO. I am also satisfied that CO poses no risk to the lives or sexual safety of anyone in the community and accordingly, I formally record my determination that including CO on the child sex offenders register is inappropriate in the circumstances of this case.
I am further satisfied, although this is not in any sense a pre-condition to that conclusion, that making that determination in this case is consistent with the intention of the Legislative Assembly in enacting s 9, as set out in extracts from the Explanatory Statement for the relevant bill that were drawn to my attention by defence counsel.
Sentence
CO, please stand. I record a conviction on the charge of sexual intercourse with a person under 16 years of age. I also note the three scheduled offences of acts of indecency on a person under 16 years of age, and I have taken them into account in sentencing for the sexual intercourse offence.
I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years.
The good behaviour order is subject to the conditions:
(a)that for such period not exceeding two years as Corrective Services consider necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or her delegate;
(b)that you undertake such counselling, courses, programs or treatment as directed by your supervising officer;
(c)that during the next 12 months, you perform 96 hours of community service; and
(d)that on or before the close of business on Monday, 18 December 2017, you attend Corrective Services at Level 1, 249 London Circuit, Civic, to arrange your supervision; because I don't know quite what will be going on with Corrective Services by next week, I would recommend that you try to do that today.
You will be given a written copy of the good behaviour order, and it will be read to you by the court officials, but in short, it means that for the next two years you need to keep out of trouble, keep in contact with Corrective Services and perform your community service. That community service, incidentally, should work out at 12 days community service and, as I said, it has to be performed in the next 12 months. If you commit another offence during that time, if you fail to perform your community service, or if you otherwise breach your undertaking, you may find yourself back before the court to be re-sentenced for this offence, and a re-sentencing court might well take a different view of your offence in that situation. If you have any particular questions about the orders I have just made, please ask the court official when you sign your papers, or Mr Kukulies-Smith might be able to talk to you briefly now.
You may sit down.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 21 December 2017 |
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