R v DU (No 4)
[2020] ACTSC 174
•20 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DU (No 4) |
Citation: | [2020] ACTSC 174 |
Hearing Date: | 4 February 2020 |
DecisionDate: | 20 February 2020 |
Before: | Burns J |
Decision: | See [61]–[67] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts sexual intercourse with a young person under special care – pleas of guilty – where offences occurred in context of coaching relationship – good prospects for rehabilitation – consideration of intensive correction order |
Legislation Cited: | Crimes Act 1900 (ACT) s 55A Crimes (Child Sex Offenders) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 11(3) |
Parties: | The Queen (Crown) DU (Offender) |
Representation: | Counsel R Christensen (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Offender) | |
File Number: | SCC 15 of 2018 |
BURNS J:
DU, on 26 November 2019 you entered pleas of guilty to four counts of engaging in sexual intercourse with a young person who was under your special care. This is an offence contrary to s 55A of the Crimes Act 1900 (ACT) (the Crimes Act) which carries a maximum penalty of 10 years’ imprisonment. These offences occurred within a period of approximately two weeks in March 2017.
The history of the present charges is convoluted. You were originally charged in the ACT Magistrates Court with six offences contrary to s 55A, four of which corresponded to the offences to which you have now entered pleas of guilty. You entered pleas of not guilty to all of those charges on 13 October 2017. On 9 February 2018, you were committed to this Court for trial on all six charges.
On 22 March 2018, the Crown filed an indictment consisting of:
· one count of maintaining a sexual relationship with a person under special care in contravention of s 56 of the Crimes Act;
· six counts of sexual intercourse without consent in contravention of s 54 of the Crimes Act;
· six alternative counts of sexual intercourse with a person under special care in contravention of s 55A of the Crimes Act; and
· one count of committing an act of indecency without consent contrary to s 60 of the Crimes Act.
The most serious of those charges, that of maintaining a sexual relationship with a person under special care, carries a maximum penalty of 25 years’ imprisonment.
On 29 October 2018, the Crown filed an indictment consisting of one count of maintaining a sexual relationship with a person under special care, six counts of sexual intercourse without consent and one count of committing an act of indecency without consent.
On 26 November 2019, the Crown filed a further indictment consisting of four counts of engaging in sexual intercourse with a young person under special care. These are the offences to which you immediately entered pleas of guilty. The fresh indictment was presented by the Crown on the second day of your trial which had been scheduled to occupy five days.
It has been submitted by your counsel that your pleas of guilty should be treated as early pleas on the basis that they were entered on the same day that the Crown filed the indictment. The difficulty that I have with that proposition is that you entered pleas of not guilty to the same charges in the ACT Magistrates Court and you were committed for trial on those charges.
I am not able to be critical of the Crown for the decisions it made with regard to what charges were subsequently included on the various indictments but there is some suggestion of prosecution overreach. The Crown has informed me that the present case is the first instance in which somebody comes to be sentenced in this Territory for offences contrary to s 55A of the Crimes Act and it may be accepted that there was doubt or uncertainty about how that provision would apply. I accept that you have been involved in a lengthy process which was apt to cause a degree of anxiety and uncertainty beyond that which would normally be expected in prosecutions of this type.
Having said that, I note that not all of the delay in the present matter being finalised can be laid at the door of the Crown. I accept that your pleas of guilty had significant utilitarian value but in my opinion they cannot be described as pleas at the earliest opportunity. Bearing in mind all of the circumstances to which I have referred, I will reduce by approximately 15 per cent the otherwise appropriate sentences because of your pleas of guilty.
The facts
At the time of these offences, you were 40 years old and the victim was aged
16 years old. I am unaware of the victim's date of birth so I cannot be more accurate about her age.
As at February 2017, the victim had known you for about five years through her father's close relationship with you. That friendship had formed through a shared interest in
tenpin bowling. The victim's mother and father considered you to be a friend going so far as to loan you a not insignificant sum of money to assist you in your business. You visited their home regularly. You were plainly trusted by them.
Not long after you first met the victim, you began coaching her in tenpin bowling. You also coached the victim’s brother and for a shorter period her sister. Your family and the victim's family regularly played tenpin bowling together on Sunday mornings and you would provide coaching advice to those who attended, including the victim.
You also coached her in tenpin bowling at other times. From time to time, you necessarily touched the victim as part of this coaching. The Statement of Facts tendered at your sentence hearing states that your coaching sessions with the victim continued until April 2017 when she competed in the National Bowling competition in Sydney. You attended that competition but not as a coach associated with the team.
Between 6 December 2016 and 9 April 2017, you also gave the victim driving lessons with the permission of her parents. On several occasions, you told the victim that you and your wife had an open relationship.
On 26 February 2017, you took the victim on a driving lesson. When you were inside the car, you commented on her shorts and told her that her legs looked really good and really nice. She then held your hand and placed it on her leg. At some point you said “[i]t's very hard to control my urges for you”. The victim did not reply.
On 10 March 2017, with the permission of the victim's parents, you drove her to Caboolture in Queensland for a tenpin bowling tournament. You were not acting as her coach for that tournament. You and the victim were both competing. You had initially planned to take the victim's brother to the tournament but when he was unable to go, it was determined that you should take the victim instead.
During the drive to Caboolture, you touched the victim's leg and made a comment about her vagina. The next day, sexual activity including penile-vaginal intercourse took place between you and the victim. Later that day, you purchased alcohol and gave some to her although she did not drink very much. The next morning, you again engaged in penile-vaginal sexual intercourse with the victim.
As I understand it, Queensland does not have an equivalent provision to
s 55A of the Crimes Act which applies in this Territory, so that your sexual activity with the victim in Queensland was not unlawful.
I refer to this activity as background to the offences which occurred in the ACT. On the return journey from Queensland, you again engaged in sexual intercourse with the victim in a motel in Kempsey in New South Wales. You then returned to the ACT.
As I understand the chronology, you arrived in the ACT on 14 March 2017. Later that week, the victim told a school friend about the sexual activity between the two of you. She was crying and very upset when she had that conversation. Following this trip, the victim's father noticed that she had become more withdrawn.
Count 1
On Wednesday, 15 March 2017, you collected the victim from her school at 12.20 pm in accordance with an arrangement you had made with her mother the previous evening. She finished school at that time on Wednesdays because she had free periods in her timetable. She would ordinarily go home to do assignments or watch television and you would collect her and take her to junior league bowling at about 4.30 pm. On this occasion, you collected her and drove her to your house. There was no-one else home. You and the victim engaged in penile-vaginal intercourse with you ejaculating inside her vagina.
You then both dressed and the two of you went to collect your children from school before proceeding onto the bowling alley in Belconnen. These events are the basis of Count 1 on the indictment.
Count 2
On Wednesday, 22 March 2017, you again picked the victim up from school and drove her back to your home. You then engaged in penile-vaginal sexual intercourse in a number of positions. On one occasion, the victim asked you to stop and you did. You subsequently recommenced sexual intercourse with the victim and ejaculated into her vagina.
You and the victim then watched television before you went and picked up your children from school before then going on to the bowling alley in Belconnen, ACT. These events are the basis of Count 2.
Count 3
On Wednesday, 29 March 2017, while at school, the victim received a text message from you asking her to come over. She declined, telling you that she had assignments to complete. You told her that she could study at your house. A short time later, you came to her school and drove her to your home. The two of you went into a study where there was a computer and the victim used the computer to write her assignment for about half an hour while you watched her while lying on a bed in the same room.
After the assignment was completed, the two of you went into the bedroom where you had penile-vaginal intercourse. You did not ejaculate. The victim told you that she had had enough and got dressed and went out and watched television. The two of you then went to collect your children from school and the victim said to you, “[i]f I can't tell anyone, I just want it stop” or “I just want it to stop”. You said “[f]ine”. After you collected your children, you all went bowling. These events are the basis of Count 3.
Count 4
On 29 March 2017, you told your wife that you had been engaging in sexual activity with the victim. On 31 March 2017, the victim's father messaged you asking you to take the victim to school that day. You picked the victim up and drove her to your house. You again had penile-vaginal sexual intercourse with her, ejaculating in her vagina. Afterwards, as you drove the victim to school, you told her that this would probably be the last time and she replied “[g]ood”. These events are the basis of Count 4.
Other events
On 9 April 2017, the victim sent your wife a Facebook message apologising for what had happened with you. You continued to socialise with her family and to attend bowling tournaments in which she was competing.
In April 2017, you complained about the victim being disrespectful to you at a bowling tournament in Sydney resulting in her parents scolding her. You and your wife demanded an apology from her which she gave on multiple occasions.
On 17 May 2017, you sent a text message to the victim's father regarding her having been disrespectful to you at the tournament in Sydney. In the message, you told the victim's father that “there was more to this story than [he] knew” but you could not explain it to him without the two of you never speaking again. The victim's father asked the victim about that text message and she began crying and told him that you had forced her to have sex with you on several occasions.
The matter was then brought to the attention of the police. On 24 May 2017, you participated in a record of interview with police. You told them that earlier in 2017 you had travelled with the victim to Queensland to attend a bowling tournament and during this trip your relationship had become a consensual sexual relationship. You said that this relationship continued upon your return to Canberra a week later. You told police that you did not use condoms with the victim, but you had previously had a vasectomy.
You told police that you used to help the victim and her brother with their bowling by giving them advice on what ball they should use, how they should prepare the ball and themselves. You said that you used to train with them every Sunday morning depending on their schedules.
You told the police that in 2014 and 2015 you were a qualified and accredited bowling coach but that you let that qualification expire and that you were no longer a qualified coach. You ran paid coaching sessions on Thursday evenings, but the victim and her family did not attend those sessions.
You told police that the age difference between yourself and the victim did not concern you as it was just sex.
The Statement of Facts refers to many text messages between yourself and the victim between 6 April and 15 May 2017. These text conversations occurred after the events constituting the offences, but in them you clearly identify yourself as the victim's coach. You plainly considered yourself to be her bowling coach and expected others to recognise you as such. You expected the victim to treat you with respect, an expectation that was reinforced by her family who were unaware of your sexual activity with the victim at that time.
Victim Impact Statements
Multiple Victim Impact Statements prepared by the victim and other members of her family were read in the course of the sentence hearing. There can be no doubt that your sexual activity with the victim has caused her and her family a great deal of trauma.
Undoubtedly, much of this trauma was related to the fact that you were trusted by the family and that by engaging in sexual activity with the victim you committed a grievous breach of that trust.
It is difficult to know to what extent that trauma is the result of sexual activity in Queensland, which was lawful, and to what extent it is the result of the unlawful sexual activity in the ACT. You cannot be punished for engaging in sexual intercourse with the victim in Queensland because it was not unlawful. It was certainly immoral and a grievous breach of trust, but it was not unlawful.
It is therefore not possible to determine precisely to what extent the effects referred to by the victim and her family are referable to the present offences. Having said that, I have no doubt that the continuation of the sexual relationship with the victim, once she returned to the ACT, contributed, to some extent, to the very significant consequences suffered by her. Your counsel submitted that in committing these offences you had failed to give appropriate consideration to whether your conduct was not simply immoral but was also unlawful.
On the evidence, it is unclear whether you claimed you have been unaware of the unlawfulness of your actions in engaging in sexual intercourse with the victim in the ACT. There is some evidence that suggests that you may not have been aware that your conduct was unlawful. In Facebook message conversations with a friend of the victim on 17 March 2017, you did not seek to deny your relationship with the victim, only expressing concern if your families became aware of the relationship. In that Facebook conversation, you also expressed some affection for the victim although at other times you have referred to the relationship as simply one of engaging in sex.
It does not appear to me that this is a case in which you foolishly formed a genuine romantic attachment to a young female. There was a considerable element of selfishness involved in your actions.
Legislative background
The offence of sexual intercourse with a young person under special care, which is found in s 55A of the Crimes Act, was introduced into that Act in 2013. For the purposes of that provision, a young person is someone over the age of 16 but who has not attained 18 years of age. In other words, the offence only applies where the victim is aged 16 or 17 years old. A defence applies where the accused person is no more than two years older than the complainant.
The gravamen of the offence is engaging in sexual intercourse with a person
aged 16 or 17 years while occupying a position of trust or authority with regard to the complainant. The combination of the age of the complainant together with the position of authority held by the offender, was perceived by the Legislature as creating an unacceptable risk that the position of authority may be abused and that young persons may not give genuine consent to sexual activity because of the power imbalance in that relationship.
The Explanatory Statement for the offence confirms that it was the intention of the Legislature to ensure that people with authority over 16 and 17 year old persons did not abuse their authority by engaging in sexual relations with them. The Legislature acknowledged that there was an inherent power imbalance in such a relationship.
Whilst you were the victim's tenpin bowling coach, you apparently did not have control over whether the victim was selected in representative teams or the like. At the time of these offences, you were not an accredited coach and you did not coach teams.
I accept that there was a lack of formality and regularity in your role as the victim's
tenpin bowling coach. Your authority over the victim was partly because of your role as her coach but also, to an extent, it was because of your role as a mature adult and a trusted family friend. If you had not been the victim's tenpin bowling coach, the fact that you were a mature adult and trusted family friend would not have been sufficient to make you criminally liable under s 55A of the Crimes Act.
In assessing the objective seriousness of the offences, one of the circumstances I must consider is the extent to which you were able to exercise authority over the victim because of your role as her coach. I am, of course, satisfied that you were able to exercise such authority, but it is unclear to what extent your abuse of that relationship in fact contributed to the victim engaging in sexual activity with you.
In the present circumstances where you became acquainted with the victim and her family through tenpin bowling, there may not be a real distinction between you exercising authority over the victim in either role.
Subjective features
At the request of both the Crown and your counsel, you were assessed for an
Intensive Correction Order. You are now 43 years old and you have continuing family support. You have been married for 14 years with two daughters from that marriage, aged nine and 11 years respectively at the time of preparation of the Assessment.
You advised the author of the Assessment that there were issues in your relationship with your wife which became evident prior to the commission of the current offences. This does not mitigate the offences. You and your wife have undergone relationship counselling which was completed in 2018.
You left formal education at the completion of Year 10 and you have had a history of stable employment since leaving school with most of your work being as a driver. Since June 2019 you have been self-employed as an interstate truck driver which requires you to be on the road for up to a week at a time.
There are no alcohol or drug issues that need to be addressed. You told the author of the Assessment of mental health issues which developed after the death of your brother in 2009. You are currently treated by medication.
You appear to have accepted some responsibility for these offences and you have also expressed empathy for the victim and her family because of the effect of your offending. Your risk of general re-offending was assessed as low and that of sexual re-offending as below average. You were assessed as suitable for an Intensive Correction Order.
I am satisfied that you have good prospects for rehabilitation. You have no previous criminal history. You have expressed a willingness to engage in treatment as directed.
I note that it is proposed that you be assessed for the adult sex offender program whether you are sentenced to a term of immediate imprisonment or sentenced to a term of imprisonment to be served by way of an Intensive Correction Order. As a result of conviction for these offences, you will be required to report under the
Crimes (Child Sex Offenders) Act 2005(ACT) for the rest of your life. I take this into account as a consequence of conviction, but it does not operate to reduce the otherwise appropriate penalties.
Objective seriousness
In assessing the objective seriousness of these offences, I take into account that they occurred over a relatively short period of time. I take into account the fact that your role as the victim's tenpin bowling coach was an informal role and one in which you had no power to affect her progress in that sport.
It may be accepted that these offences constituted a grievous breach of trust but against that must be weighed the fact that the sexual relationship which constituted the breach of trust commenced at a time and place when it was not unlawful. I would assess these offences as below the mid-range of such offences, but they nevertheless remain serious criminal offending.
Your counsel has rightly conceded that these offences are serious and call for the imposition of terms of imprisonment. The only issue is whether immediate terms of imprisonment should be imposed or whether terms of imprisonment should be served by way of an Intensive Correction Order. In considering this issue, I give weight to the fact that the Crown has not submitted that an Intensive Correction Order would be inappropriate or fall outside the appropriate sentencing range.
I am not entitled to impose a sentence of full-time imprisonment unless I am satisfied that no lesser sentence will be adequate to properly address the requirements of sentencing.
After much hesitation, I have reached the conclusion that sentences of imprisonment to be served by way of Intensive Correction Order will be adequate to address the requirements of sentencing. In determining to order that the sentences of imprisonment which I intend to impose be served by way of Intensive Correction Order, I take into account those matters which are referred to in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT).
Sentence
On Count 1 (SCCAN 2019/3834), I record a conviction and you are sentenced to
18 months’ imprisonment, commencing today, 20 February 2020, and expiring on
19 August 2021.
On Count 2 (SCCAN 2019/3835), I record a conviction and you are sentenced to
18 months’ imprisonment, commencing on 20 August 2020 and expiring on
19 February 2022.
On Count 3 (SCCAN 2019/3836), I record a conviction and you are sentenced to
18 months’ imprisonment, commencing on 20 February 2021 and expiring
19 August 2022.
On Count 4 (SCCAN 2019/3837), I record a conviction and you are sentenced to
18 months’ imprisonment, commencing on 20 August 2021 and expiring on
19 February 2023.
I have reduced each of these sentences from 21 months’ imprisonment because of your pleas of guilty.
The aggregate sentence which I have imposed is one of three years’ imprisonment commencing today, 20 February 2020, and expiring on 19 February 2023.
I order that these sentences be served by way of Intensive Correction Order commencing today, 20 February 2020, and expiring on 19 February 2023.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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