R v Collins
[2018] ACTSC 127
•18 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collins |
Citation: | [2018] ACTSC 127 |
Hearing Date: | 18 April 2018 |
DecisionDate: | 18 April 2018 |
Before: | Murrell CJ |
Decision: | Sentenced to a two year good behaviour order for each ACT offence and a two year conditional release order on same terms as ACT good behaviour orders for the Commonwealth offence. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with person under 16 years – using carriage service to transmit communications to person under 16 years with the intention of procuring sexual activity – no criminal history – five year age gap – good prospects of rehabilitation – neurodevelopmental issues – immature offender |
Legislation Cited: | Crimes Act 1900 (ACT) s 55(2) Crimes Act1914 (Cth) ss 16A, 20 Criminal Code Act 1995 (Cth) s 474.26(1) |
Parties: | The Queen (Crown) Samuel Collins (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Ms P Burgoyne-Scutts (Offender)P |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 290 of 2017 |
MURRELL CJ:
The offender committed four offences:
(a)6 November 2015: engaging in sexual intercourse with the complainant, a person under the age of 16 years.
(b)7 November 2015: engaging in sexual intercourse with the complainant, a person under the age of 16 years.
(c)11 November 2015: engaging in sexual intercourse with the complainant, a person under the age of 16 years.
(d)Between 1 September 2015 and 16 November 2015: being a person who was at least 18 years of age, using a carriage service to transmit communications to the complainant, who was under the age of 16 years, with the intention of procuring her to engage in sexual activity with him.
The maximum penalty for an offence of sexual intercourse with a person under 16 years contrary to s 55(2) of the Crimes Act1900 (ACT) (Crimes Act) is 14 years’ imprisonment. The maximum penalty for an offence of using a carriage service to procure a person under 16 years of age contrary to s 474.26(1) of the Criminal Code Act1995 (Cth) is 15 years’ imprisonment.
The offences were reported to the police within days of their occurrence. For reasons that are unclear, there was a 12 month delay in charging the offender. There was a further delay of almost 12 months before the offender was committed for trial because the defence was awaiting a report from Associate Professor Sunny Lah and the parties were discussing the appropriate charges. From the defence perspective, these discussions ultimately yielded no result. The second delay does not reflect any fault on the part of the prosecution.
On 18 October 2017, the offender was committed for trial. On 21 February 2018, he entered pleas of guilty. The pleas were entered prior to the matter being listed for trial. Having regard to the timing of the pleas, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), I would have reduced any sentence of full-time imprisonment by about 15 per cent. I will take the pleas of guilty into account as a factor that to some extent, mitigates the nature of the penalty that I impose.
Facts
At the time of the offences, the complainant was 14 years old. The offender was 19 years old.
In September 2015, the complainant downloaded and began to use MeowChat, an online dating application. She used MeowChat to send her phone number to the offender. They began to contact each other using Kik, an instant messaging platform.
The complainant told the offender that she was 14 years old. The offender told the complainant that he was 19 years old.
Count 1
On the night of Friday, 6 November 2015, the complainant and the offender agreed to meet at a park. After conversing for a while, they went to a toilet block where they kissed. They engaged in fellatio and other sexual contact. When the complainant said that she had to leave, the offender drove her to a place close to where she lived.
Count 2
On 7 November 2015, the complainant contacted the offender by text message. At his suggestion, they met at the same park. After walking around for a while and kissing, the offender drove the complainant home. With the complainant’s agreement, en route, they drove to a secluded car park. Both entered the back seat of the car where they partially undressed. They engaged in fellatio and other sexual contact.
Count 3
A few days later, on 11 November 2015, the complainant stayed home from school. With the consent of the complainant’s mother, the offender visited the complainant. The complainant and offender sat in the lounge room watching movies. They were sitting under a blanket and they made sexual contact under the blanket. At the time, the complainant’s mother was also in the lounge room. She was not aware of what was occurring. The complainant and the offender went to the complainant’s bedroom, where they engaged in further sexual contact, which was interrupted when the complainant’s mother began to move around the house.
At 2.45pm, the complainant’s mother left the house. The offender and the complainant engaged in fellatio and other sexual contact.
Count 4
On 12 November 2015, the complainant and the offender had a sexually explicit conversation using Kik. The complainant sent images of her breasts and a video of herself masturbating to the offender. The offender sent a picture of a packet of condoms to the complainant.
On 14 November 2015, the complainant advised the offender by text that her father did not approve of the relationship. Later that day, the complainant’s father confiscated the complainant’s mobile telephone. He discovered that it contained sexually explicit images and videos of the complainant.
On 16 November 2015, the offender came to the complainant’s home for the purpose of seeing her. As he approached the home, the complainant’s father intercepted him and spoke to him at length.
On 17 November 2015, the complainant’s father provided the complainant’s mobile telephone to the police. The police recovered numerous deleted Kik messages sent by the offender to the complainant, including videos depicting male masturbation.
The Kik conversation of 12 November 2015 and the videos of male masturbation recovered from the telephone are the basis for the fourth count.
On 25 November 2015, police executed a search warrant at the offender’s home. During the search, the offender made some admissions.
Objective seriousness
The three sexual intercourse offences were part of one course of conduct that occurred over a short period of time in November 2015.
As indicated by the maximum penalty of 14 years’ imprisonment, all offences against s 55(2) are serious. However, 14 years’ imprisonment is not a heavy penalty when compared to many penalties prescribed by the law. It is, for example, the maximum penalty prescribed for offences of burglary. In relation to such offences, first-time offenders frequently receive a good behaviour order.
The offence prescribed by s 55(2) acknowledges that any person who is under the age of 16 years is vulnerable to sexual exploitation. It is presumed that persons under the age of 16 years need to be protected from their own emotional and sexual immaturity. Within the range of vulnerability that the offence encompasses, the complainant was at the lower end because of her age. At 14 years of age, she was not a very young child.
Further, the nature of the relationship between the offender and the complainant demonstrates that she was not especially vulnerable. The offender and the complainant were in a “relationship”. She was not a child who was in the care of the offender. She was not in a special relationship of trust with the offender. The offender did not use coercion or force in the course of committing the offences.
There was no issue of domination or a particular power imbalance (other than that necessarily entailed in any offence of this nature). The offender was five years older than the complainant. The age difference does not indicate that there was necessarily a substantial power imbalance between the two. In the context of the relative maturity of the two individuals involved, the age difference was not as great as is the case with many offences against s 55(2). When considering the relevance of the age difference between the offender and the complainant, it is also relevant to consider the offender’s social and emotional maturity.
Offences against s 55 encompass a wide range of activities and circumstances. I accept the submission of the offender that the offences committed in this case were towards the lower end of the spectrum. Fellatio is a type of sexual intercourse that is generally less serious than penetrative sexual intercourse. On the other hand, it is significant that the offender knew the complainant’s age from the outset. He also knew that it was wrong to engage in sexual conduct with a young person.
The Commonwealth offence was part of the same short course of criminal conduct as the sexual intercourse offences. The factors that are relevant to an assessment of the objective seriousness of the s 55(2) offences are, generally speaking, also relevant to an assessment of the objective seriousness of the Commonwealth offence. The Commonwealth offence occurred in the context of an existing, albeit illicit, sexual relationship. It did not involve coercing or putting clear pressure on the complainant. It was never likely to procure much more sexual activity than was already occurring. It is at the lower end of objective seriousness.
Subjective circumstances
The offender is 22 years old. He has no criminal history. In the two and a half years since the offences, there is no suggestion of any further criminal activity.
The offender lives with his parents and sister. His parents are supportive.
The offender completed Year 12. He was a slightly below average student. As a primary school student, his social skills were poor. In his early teens, he experienced bullying at school. The offender has always struggled with social interaction.
After leaving school, the offender worked in the hospitality industry for about three years. He did not enjoy that work. He felt lonely and somewhat disconnected from his family. Currently, he works at a fast food outlet. He finds that to be a better fit than his former employment.
The offender is also working towards a certificate level qualification in business administration at the Canberra Institute of Technology (CIT). He plans to complete a higher certificate in bookkeeping. He has organised work experience with a bookkeeper.
The offender’s father described him as a quiet young man who does not find it easy to make friends, but who enjoys playing sport. He plays indoor soccer. Otherwise, he has little contact with his peers.
In 2010, the offender was treated for a concussive head injury. He was diagnosed with an arachnoid cyst on the brain, which was thought to be an incidental finding. Arachnoid cysts can impact on mental functions. The offender’s father considers that the cyst may have impacted on the offender’s learning and social capacities. However, that is not clearly established on the evidence.
In mid‑2017, Associate Professor Sunny Lah performed a neuropsychological examination of the offender. He found that the offender has reduced executive skills, (complex problem solving ability and mental flexibility) and impaired social skills. These neurodevelopmental difficulties are similar to, although not as severe as difficulties displayed by people with Autism Spectrum Disorder (ASD). They have caused the offender long-standing problems in forming and maintaining friendships, developing social networks and becoming independent of his family.
In the opinion of Associate Professor Lah, the history of concussion and arachnoid cyst could have exacerbated pre-existing neurodevelopmental difficulties. On the other hand, the current problems may be merely a reflection of ongoing neurodevelopmental difficulties. The aetiology of the neurodevelopmental difficulties is not relevant for the purpose of sentencing.
According to Associate Professor Lah, the offender suffers from impaired social skills and social reasoning. There is an associated impairment of the offender’s ability to judge social conduct and modify behaviour appropriately. The Associate Professor suggests that the offender would benefit from an individually tailored program to assist him to develop social, recreational and vocational skills, such as the Choose and Connect program which is available through Autism Spectrum Australia.
The offender is seeing a counsellor to assist him to cope with the stress of the court process and to deal with difficulties in general. The counsellor has experience in dealing with people who have committed offences of this type.
Referees describe the offender as hard-working, polite and respectful, but perhaps somewhat immature.
From the outset, the offender has acknowledged that his conduct was wrong. However, he has attempted to minimise his responsibility and attribute some blame to the complainant. As much as anything, this is a reflection of his immaturity.
Sentencing purposes
In sentencing the offender, relevant sentencing purposes include general deterrence, accountability, denunciation and recognition of harm to the victim.
The Court has not received a victim impact statement. However, it is inevitable that the complainant has suffered some psychological harm as a consequence of the offence.
A very important sentencing purpose is rehabilitation. In relation to rehabilitation, I have regard to the offender’s youth. The fact that he is particularly immature emotionally and psychologically means that rehabilitation should be emphasised.
In my view, he is unlikely to commit further offences of this type. I appreciate that a Static 99 Recidivism Assessment indicated some risk of re-offending. However, that is a very blunt tool. The offender has a supportive family to whom he is very connected. He is seeing a counsellor. He has only committed sexual offences with one person. That offences occurred two and a half years ago. The offender has some insight into his offending behaviour. For those reasons, I think it is most unlikely that he will re-offend. Therefore, it is important to support the offender’s integration into the community. This integration was never destined to be easy, but will be made much more difficult by the fact that the offender has these convictions.
In submissions, it was mentioned that the convictions would result in the offender being placed on the Child Sex Offender Register. That is an administrative consequence that flows from conviction for all offences of this type. It will be an extra‑curial punishment, but the offender does not receive a more lenient sentence because of that.
Sentence
I convict the offender of each offence.
For each of the offences of sexual intercourse, I impose a good behaviour order requiring the offender to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today.
It is a condition of the good behaviour orders that the offender submit to the supervision of Community Corrections for a period of at least six months. Thereafter, at any time within the period of two years, Community Corrections may terminate supervision at their discretion. The offender is required to report to Community Corrections by 4.00 pm tomorrow.
In sentencing the offender for the Commonwealth matter, I am required to impose a sentence that is appropriate in all the circumstances, having regard to the matters specified in s 16A of the Crimes Act1914 (Cth) (the Commonwealth Crimes Act).
Pursuant to s 20 of the Commonwealth Crimes Act, I release the offender upon him giving security in the sum of $50.00 to comply with the same conditions that I impose on the Territory good behaviour orders for a period of two years.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: 16 May 2018 |
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