R v DT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DT
Citation:	[2018] ACTSC 355
Hearing Date:	14 December 2018
DecisionDate:	14 December 2018
Before:	Elkaim J
Decision:	See [44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a young person – using a carriage service for child pornography material – possess child pornography – using the internet to provide pornographic material to a young person
Legislation Cited:	Crimes Act 1900 (ACT) ss 55(2), 65, 66(2) Criminal Code 1995 (Cth) s 474.19 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 17, 33
Cases Cited:	Clarkson v R; EJA v R [2011] VSCA 157; 32 VR 361 R v Arthur [2017] ACTSC 23 R v Horton-Hegarty [2017] ACTSC 268
Parties:	The Queen (Crown) DT (Offender)
Representation:	Counsel Ms S Janackovic and Ms R Christensen (Crown) Mr J Pappas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender)
File Number:	SCC 170 of 2018

ELKAIM J:

1. On 3 July 2018 the offender pleaded guilty to six offences involving sexual activity with a young person.
2. The offences and their maximum penalties are as follows:
a.(a) Three charges of sexual intercourse with a young person (CC2017/11099; CC2017/11101; CC2017/11102), contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty is 14 years’ imprisonment.
b.(b) Using a carriage service for child pornography material (CC2017/11095), contrary to s 474.19 of the Criminal Code 1995 (Cth). The maximum penalty is 15 years’ imprisonment.
c.(c) Possess child pornography (CC2017/11103), contrary to s 65 of the Crimes Act. The maximum penalty is 7 years’ imprisonment and/or a fine of $105,000.
d.(d) Using the internet to provide pornographic material to a young person (CC2017/11128), contrary to s 66(2) of the Crimes Act. The maximum penalty is 7 years’ imprisonment and/or a fine of $105,000.
3. The offender was born in 1997 and is currently 21 years old. He was 18 years of age when the offences took place. The complainant was 13 years old. She was in Year 7 at high school.
4. The offender was a member of a rowing team. The complainant’s stepfather was the coach of this team.
5. The offender was aware of the complainant’s age. Nevertheless they entered into a sexual relationship. Part of the relationship involved the exchanging of messages via Facebook messenger. A number of these messages were sexually explicit.
6. It is necessary for me to give a brief description of each charge. Charge 2017/11095 relates to the offender requesting, and receiving, sexually explicit photographs of the complainant either wearing very little clothing or none at all.
7. Charge 2017/11128 involves the offender sending 10 images of himself to the complainant. Three of these images depicted his erect penis.
8. Charge 2017/11099 relates to sexual intercourse which occurred on 6 December 2015. The offender purchased condoms and lubricant. He met the complainant and they travelled on their bicycles to an isolated area in the suburb of Lyons. After some preliminary kissing and fondling they removed their clothes and then had penile-vaginal intercourse, initially in the missionary position and later, after the complainant complained of pain, from behind. There was blood on the condom when the offender withdrew his penis. This was the first experience of sexual intercourse by both participants.
9. The sexual intercourse followed a good deal of communication between the offender and the complainant discussing their intent to have sex.
10. Charge 2017/11102 relates to another act of sexual intercourse on 13 December 2015. The offender and the complainant rode their bicycles to the same location in Lyons. Once again they engaged in penile-vaginal sexual intercourse and once again the complainant felt pain.
11. Charge 2017/11101 is the last act of sexual intercourse. This occurred on 22 December 2015. They went into a bathroom at the offender’s residence and commenced penile-vaginal sexual intercourse. The complainant was having her period and was bleeding. The offender asked her if they could have sex without a condom. She agreed. They commenced doing so and ultimately the offender withdrew his penis and ejaculated on the bathroom floor.
12. The following day the offender wrote to the complainant, on Facebook, stating that he thought it more appropriate if their relationship came to an end. The complainant was unhappy with this suggestion and further communication ensued. The relationship seems to have begun again in January 2016 but it was short lived. Sometime later the complainant disclosed the details of the relationship to her mother and grandmother. She reported the matter to the police in August 2016.
13. Charge 2017/11103 is based on the police executing a search warrant of the offender’s home and finding images of the complainant. These are the same images referred to above.
14. It is apparent that the complainant was a willing participant in all of the sexual activity. Lack of consent, however, is not an ingredient of these offences. I said this in R v Horton-Hegarty [2017] ACTSC 268:
The law says that a young person under the age of 16 is unable to consent to sexual intercourse. There is very good reason for this legal position. There is an important difference between a person agreeing to have sexual intercourse with another person and giving informed consent. The latter involves a consideration of all manner of social, emotional and physical matters that the law says a person under the age of 16 is incapable of considering. The law is absolutely correct.
15. In addition, consent cannot mitigate the seriousness of the offences, although a lack of consent can be an aggravating factor (Clarkson v R; EJA v R [2011] VSCA 157; 32 VR 361).
16. I was taken to a number of text messages, and two photographs, all demonstrating the sexual knowledge and enticement on behalf of the complainant. It was submitted that these messages and photographs highlighted the nature of the relationship between the two young people and the vulnerability of the immature offender compared to the apparent experience of the complainant. I accept that these matters do go to the overall picture in which the offending occurred but I do not agree that they mitigate the severity of the offending. Further, I do not know if the text messages are a true reflection of the complainant’s sexual knowledge or perhaps simply an expression of material she had read or been told about. Whatever the case, the fact remains that she was 13, she was a virgin and she was entitled not to be sexually active at the hands of the offender.
17. I think the appropriate way of dealing with this evidence is within the bounds of this passage from Clarkson, at [8]:
In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.
18. Although the offender’s parents separated when he was young he nevertheless grew up in a supportive home. He has lived with his mother and stepfather since he was 17 and maintains regular contact with his father and his siblings.
19. The offender completed Year 12 and is currently engaged in an apprenticeship in the field of air-conditioning and refrigeration. He has not been able to do the practical parts of the course because he does not have a Working with Vulnerable People Card. He has however been informed that a position with his previous employer may be available in the future.
20. The offender does not have any problems with alcohol or drugs. He does not have a criminal record. According to the pre-sentence report he has accepted responsibility for his criminal actions and realises that the complainant did not have the capacity to consent. The report recommends that he take part in an adult sex offender program in order to lessen his chances of reoffending.
21. I have been provided with a number of references for the offender. His employer, prior to him losing his job because he did could not obtain a Working with Vulnerable People card, says that the offender was an excellent worker who he would be prepared to take back.
22. There is a lengthy letter from the offender’s mother and stepfather. It sets out his background and the effects of the charges. Understandably they are very concerned about imprisonment and its consequences. They attribute some of the cause of the offending to the offender’s immaturity. His sporting and academic achievements are described.
23. The letter ends in this way:
It goes without saying that we have had countless discussions with [DT] about his relationship with [the complainant]. He now has a good insight into the wrongfulness of his actions and the reasons behind the law’s protection of young people in [the complainant’s] position. There is no doubt he is deeply and sincerely remorseful and we have every confidence this harrowing journey through the criminal justice system will be his one and only.
24. There is a reference from his father and stepmother. The letter follows a similar theme of describing the offender. The letter states “it is clear that at the start of their relationship [DT] was aware of [the complainant’s] age and of his responsibilities as an adult”. The letter also expresses concerns about prison. It concludes:
We are fearful for [DT] should a custodial sentence be imposed. While he has matured greatly since 2015 he is still relatively naïve and vulnerable for his age and would, we feel, be very negatively impacted within the prison system. He is already suffering significantly for his mistake and we feel a custodial sentence has the potential to crush him.
25. I have been provided with reports from two clinical psychologists. Dr Barry describes the offending as occurring “in the context of a romantic relationship” with the complainant. This is precisely what the relationship was not. This was the taking advantage of effectively a child, at the very beginning of her teenage years, for the offender’s sexual gratification. Dr Barry describes cognitive behavioural therapy that the offender has undergone to help him manage the stress he is under and to give him insight into his situation.
26. Dr Barry says that the offender should not be regarded as a paedophile. I agree with this conclusion. Nevertheless Dr Barry does recommend further treatment “aimed at continuing to develop his insight and understanding of age of consent and sexual relationship issues, particularly amongst adolescents and young people”.
27. Dr Barry says that the offender is likely to suffer an increase in symptoms of depression and anxiety if he is put in prison.
28. Dr Clout in her report dated 8 November 2018 describes the offender’s presentation as consistent with a diagnosis of Major Depressive Disorder, Single Episode. She says that the disorder is of moderate severity, and included suicidal ideation. Like Dr Barry she does not think there is much chance of reoffending. She suggests continuing treatment with Dr Barry.
29. As I read the two medical reports, they do not suggest any psychiatric or psychological reason that may have led to the offending. They are more concerned with the effects of the charges having been brought against the offender.
30. Having heard an explanation of the testing used to gauge reoffending from Dr Clout, I prefer the opinion expressed by her and Dr Barry about reoffending compared to that contained in the pre-sentence report.
31. Sentencing an offender who has no criminal record, has not abused drugs or alcohol and was destined for a decent and constructive life in society, is one of the most difficult tasks facing a judge. These are serious offences. No matter how willing the complainant may have been to participate in the activities they simply should not have happened and blame for them must lie at the feet of the offender. He knew the complainant was 13 years of age. After the first act of sexual intercourse when she had complained about pain and told him that it was her first act of intercourse, he should have stopped then. It should have come home to him that what he was doing was wrong and he should not have pursued her.
32. I must take into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 of the Act also lists a number of considerations. Section 10 is also very important because it says a person should not go to prison except as a last resort.
33. I think the acts of sexual intercourse are of medium objective severity, although the third act is more serious because of the removal of the condom.
34. As far as the charges relating to the pornographic pictures are concerned, I regard them as falling a little below medium objective seriousness and as being an integral part of this unfortunate relationship. The latter point will lead to concurrency in the sentences, although the whole of these sentences should not be entirely within the sentences for the sexual intercourse offences. I think there must, however, be a degree of accumulation for the sexual intercourse offences. My approach to objective seriousness of the pictures has been determined in accordance with the guidelines described by Robinson AJ in R v Arthur [2017] ACTSC 23 at [17].
35. The offender is entitled to a discount for his pleas of guilty. The utilitarian value is high and in particular the complainant has been saved from giving evidence. I think a discount of about 20% is appropriate. In addition, the offender is entitled to leniency because of the absence of a record.
36. In Horton-Hegarty I referred to a number of cases of broadly similar facts. The facts in Horton-Hegarty are actually much closer to this case. The complainant was 14 years of age and the offender was 22. They worked together in a fast food outlet. There were a number of charges of sexual intercourse and a charge of production of child exploitation material. The offender received 15 or 18 months on the sexual intercourse charges. The total sentence, due to concurrency, was 2 years and 6 months. The sentence was fully suspended. Arguably the facts in Horton-Hegarty are more serious because there was a greater age difference and the offender had a management role over the victim.
37. The Court of Appeal declined to allow a Crown appeal alleging the sentences were manifestly inadequate. The Court said that the sentences were, “undoubtedly lenient” because they had been suspended, but they were not manifestly inadequate. The Court emphasised the need for specific and general deterrence.
38. A victim impact statement from the complainant was read out. There are limitations on the weight of the statement. Nevertheless, its contents do graphically illustrate the immaturity of a 13 year old, no matter how apparently precocious and forward, and the need for the law to protect young people. I have no doubt she has suffered harm, both mental and physical, and that she has been deprived of her right to deal with entry into sexual activity at a time consistent with her maturity.
39. It was submitted that the delay between the investigation of the matter and the bringing of charges should be taken into account in sentence, noting the impact upon the offender in dealing with the possibility of forthcoming criminal prosecution. I agree that this is a valid consideration and have taken it into account, in particular in reaching the conclusion that the sentence should be wholly suspended.
40. It was further submitted that the offender should be dealt with pursuant to s 17 of the Crimes (Sentencing) Act. This would avoid the offender’s entry in the sex offenders’ registry. I disagree. Suffice to say these offences are far too serious to enable me to take this course.
41. General deterrence is very important in this case because boys over 16 must realise that it is entirely wrong to have sex with girls under the age of 16. They must know the consequences will be harsh and the effects will determine almost every aspect of their future lives.
42. Rehabilitation is of course a very important element when faced with an offender like DT. He is capable of being a productive and law abiding member of society. In my view a full-time prison sentence would be likely to destroy this capacity.
43. The sentences I will read out have been reduced by approximately 20% to reflect the discount for the pleas of guilty.
44.         I make the following orders:
a.(a)       For the offence of using a carriage service for child pornography material (CC2017/11095), the offender is sentenced to 12 months’ imprisonment commencing 13 December 2020 and ending 12 December 2021.
b.(b)       For the offence of use internet to provide pornographic material to a young person (CC2017/11128), the offender is sentenced to 9 months’ imprisonment commencing 13 December 2020 and ending 12 September 2021.
a.(c)       For the offence of sexual intercourse with a young person (CC2017/11099), the offender is sentenced to 15 months’ imprisonment to commence today and end on 13 March 2020.
b.(d)       For the offence of sexual intercourse with a young person (CC2017/11101), the offender is sentenced to 15 months’ imprisonment to commence on 14 May 2019 and end on 13 August 2020.
c.(e)       For the offence of sexual intercourse with a young person (CC2017/11102), the offender is sentenced to 18 months’ imprisonment to commence on 14 December 2019 and end on 13 June 2021.
d.(f)        For the offence of possess child pornography (CC2017/11103), the offender is sentenced to 9 months’ imprisonment commencing 13 December 2020 and ending 12 September 2021.
e.(g)       The total of the above sentences is 2 years, 11 months and 29 days.
f.(h)       The above sentences are suspended with immediate effect on condition that the offender enter into a good behaviour order for a period of 3 years and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 3 years or such shorter time as the Director-General decides. The good behaviour order is subject to the following additional conditions: That the offender engage in an adult sex offenders program and attend any treatment recommended by Dr Barry.
g.(i)        In respect of the Commonwealth offence (CC2017/11095) the offender is to enter a recognizance to be of good behaviour in the same terms and with the same conditions as the above good behaviour order.
h.(j)        In respect of the recognizance order, I order that the offender give security in the amount of $1,000.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 9 January 2020

[2018] ACTSC 355

14 December 2018