R v D, KP - [2005] SASC 352

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, KP
Reasons for Ruling of The Honourable Justice Besanko
15 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Disputed facts hearing – where defendant pleaded guilty to four counts of unlawful sexual intercourse with person aged 14 years – whether defendant was told age of victim – in the alternative, whether defendant knew that victim was aged under 17 years – where defendant pleaded guilty to two further counts of unlawful sexual intercourse with person aged 13 years – whether defendant knew that second victim was aged under 17 years – aggravating facts – proof required beyond reasonable doubt.

R v D, KP
[2005] SASC 352
Criminal

BESANKO J. The defendant is charged on information with four counts of sexual intercourse with a person aged 14 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars in the information are that all four offences took place between 10 April 2004 and 1 June 2004, and involved a young girl who I will refer to as “T”. The defendant turned 18 years of age on 10 April 2004.
The defendant has pleaded guilty to the four counts. There is a dispute between the Director of Public Prosecutions and the defendant as to the basis upon which the defendant should now be sentenced.
A hearing was held at which oral evidence was given directed to the matters in dispute.
The victim, T, did not give evidence. The Director called two witnesses, each of whom said that on separate occasions they spoke to the defendant and that during the course of their respective conversations with the defendant they told him that T was 14 years of age. The defendant gave evidence and he said that he was not told that T was 14 years of age until after the last of the four offences had taken place.
The Director accepts that the alleged fact that the defendant was told that T was 14 years of age is an aggravating fact and therefore must be proved beyond reasonable doubt.
E was the first prosecution witness and she is a friend of the victim’s family. She is somewhat older than the victim. She first met the defendant in the carpark of the Hollywood Plaza Shopping Centre. She was with the victim at the time. The defendant arrived on his bicycle. She spoke to the defendant alone and she told him that T was only 14 years old, that she was not old enough and that he, the defendant, should stay away from T. E was unable to be precise as to when this conversation occurred, but having regard to her evidence and the evidence of the victim’s mother, K, it seems that on her account the conversation occurred in early April 2004, perhaps some time around 10 April 2004.
The defendant gave evidence that he met the victim and E at the Hollywood Plaza Shopping Centre at the request of the victim, and that he sat in the back of the car talking to the victim and E. He denied the assertion that E told him that the victim was 14 years old.
It seems to me that it is likely that the defendant came to the shopping centre at the request of the victim and I have some difficulty in accepting E’s statement that she did not hear or at least learn that the victim had contacted the defendant by telephone. I also think that the defendant’s account of what occurred, namely that he got in the back of the car and had a conversation with the victim and E, is more plausible than the account provided by E. None of this is to say that I disbelieve E, but rather that I have a reasonable doubt about whether the particular conversation related by E took place on the occasion which she identified. It seems to me that it is likely a conversation along the lines of that deposed to by E did take place, but I am left with the reasonable doubt as to whether it took place at the time E identified, or at some later time.
The victim’s mother, K, gave evidence that she had a conversation with the defendant and that during the conversation she said that the victim was only 14 years old and that he, the defendant, should stay away from her. She said that this conversation took place on 23 April 2004. I have no reason to doubt the evidence of K and I am satisfied beyond reasonable doubt that on 23 April 2004 K told the defendant that T was only 14 years old.
Counsel for the Director conceded that if I made the findings set out above, I could not find beyond reasonable doubt that the defendant knew as a result of his conversation with K that T was 14 years of age before any of the offences occurred. In my view, that concession was correctly made having regard to the fact that the times at which the offences occurred are not established beyond reasonable doubt on the evidence given and the statements provided to me.
In the alternative, the Director asked me to find that the defendant knew at the time of the offences that T was under 17 years of age. She referred me to photographs of T which had been tendered, and to evidence given by the defendant that he knew T attended school and had seen her in her school uniform. The defendant, on the other hand, asked me to accept his evidence that he was abusing alcohol during the period in which the offending occurred and did not turn his mind to the age of T. I do not accept the defendant’s evidence on the balance of probabilities. From the photographs, T is obviously quite a young girl and the defendant knew she went to school. Although I do not think I can go so far as to find beyond reasonable doubt that the defendant knew she was under 17 years of age, I am satisfied beyond reasonable doubt that he knew she may well have been under 17 years of age at the time of the offending and I propose to sentence the defendant on that basis.
I have also had referred to me two further charges against the defendant of unlawful sexual intercourse. The defendant has pleaded guilty to the charges. The particulars of the offences are that they occurred between 8 May 2004 and 6 August 2004 and involved a young girl who I will call KM, who was 13 years old at the time the offences were committed.
The offending involving KM was touched upon in the course of the defendant’s evidence on the disputed facts hearing involving T. No separate hearing was conducted in relation to the offences involving KM and she was not called to give evidence. The Director said that I could sentence the defendant on the basis that he did not turn his mind to KM’s age at the time of the offending involving her.
I have carefully considered whether that is the appropriate finding or, whether in fact, I should find that the defendant knew KM may well have been under 17 years of age at the time of the offending involving her. There is a good deal to be said for making the latter finding bearing in mind that KM was only 13 years of age and must have been a young girl in appearance, and that the offending involving her occurred after the defendant was told by K that T, with whom he had had sexual intercourse, was only 14 years of age. If the standard of proof was proof on the balance of probabilities I would make the latter finding. However, the standard of proof is beyond reasonable doubt, and in the absence of photographs of KM, I am not prepared to find beyond reasonable doubt that the defendant knew KM may well have been under 17 years of age at the time of the offending involving her. In relation to the offending involving KM, I will sentence the defendant on the basis that he did not turn his mind to KM’s age at the time of the offending.