R v H, SM - [2008] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, SM
[2008] SADC 167
Reasons of His Honour Judge Tilmouth
5 December 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Consideration of the appropriate sentence for unlawful sexual intercourse when the parties have since married. Meaning of "trifling" in s 15 Sentencing Act, discussed
Criminal Law (Sentencing) Act 1988 (SA) ss10(1)(j),(k),(m),15,16 and 39, referred to.
R v Sargeant (1974) 60 CrAppR 74; R v Taylor (1977) 64 CrAppR 182; Walden v Hensler (1987) 163 CLR 561; Siviour-Ashman v Police (2003) 85 SASR 23 at [25-26], applied.

R v H, SM
[2008] SADC 167
The Charge

H,SM pleaded guilty on 10 November 2008 to having sexual intercourse sometime in July 2005 or August 2005, with a female then of the age of 15 ½ years. After hearing submissions on 28 November 2008, the Court indicated it would sentence him without conviction and by imposing no further penalty. These reasons explain why the Court took that course.
Factual basis of sentence
The case is unique. The defendant and the “victim” have lived together for some time and were married in September 2008. He was aged 19 while she was 15 ½ when the offence was committed; they are now 21 and 18 years respectively. When interviewed on 17 July 2008, he told Sergeant Randall of first meeting her at school in Glossop in the Riverland, and frankly admitted having intercourse with her much later in their relationship. According to her statement she was attracted to him and whilst she was in year 8, they started “dating as boyfriend and girlfriend”. He was boarding in Barmera at the time. In the following year, her sister gave her a condom, obtained from a school lesson.
She recollects later giving him the condom and sleeping with him, and was “happy to have sex with him”. Soon after in November 2005, he moved into her parent’s home. Early the following year, they obtained rental accommodation in Berri. She gave birth to their son on 4^th April 2006, and is now the full-time carer of the child. The relationship has the blessing of both families. He has part-time work in the hospitality industry in a nearby township, and has one previous appearance in the Youth Court for an offence, factually quite different, committed when he was just fourteen.
General sentencing principles
There is no suggestion he took any advantage of her. The prosecution readily accept this, and that his behaviour was not predatory and that no duress or enticement was involved. It is difficult to identify what utility any form of punishment would serve, given these facts. Sentences are meant to serve the ends of retribution, deterrence, prevention and rehabilitation: R v Sargeant.[1] These classic principles have their counter-parts in ss 10(1)(j) deterrence, ss 10(1)(k) retribution and prevention, and ss 10(1)(m) rehabilitation, of the Criminal Law (Sentencing) Act 1988 (SA).
[1] (1974) 60 CrAppR 74 at 77
Section 10(4) directs that in the sentencing process a “primary policy of the criminal law is to protect children from sexual predators” and “for any offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence”. These dictates do not apply to this case. The old fashioned notion of retribution plays no part in our criminal law these days, except to the extent that it continues to serve the function of reflecting legitimate public opinion. Any right thinking person would have no reason to seek or expect any further punishment of this man.
When it comes to deterrence, there are two aspects: deterrence of the offender and deterrence of likely offenders to commit this type of crime. To the extent that these remain applicable to this case – if at all - they have been more than satisfied by bringing the charges and exposing their private lives to the public gaze in the courtroom. Prevention is no longer relevant, as she is now above the age of consent and he is a mature young man, unlikely to reoffend. Finally, when it comes to rehabilitation, no punitive measure is going to do him or her any good and his rehabilitation is in any case complete.
Unlawful sexual intercourse, is an offence encompassing a wide range of factual bases. As Lawton LJ observed in R v Taylor:[2]
What does not seem to have been appreciated by the public is the wide spectrum of guilt which is covered by the offence known as having unlawful sexual intercourse … at one end of the spectrum is the youth who stands in the dock, maybe 16, 17 or 18, who has started off with a virtuous friendship with the girl … at the other end of the spectrum is the man in a supervisory capacity, a school master or social worker, who sets out deliberately to seduce a girl under the age … who is in his charge. The penalties for the two types of cases I have just referred are very different indeed. Nowadays, most judges would take the view, and rightly take the view, that when there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentences of a punitive nature.
[2] (1977) 64 CrAppR 182 at 185 and see R v Barker (2001) 2 CrAppR(S) 75
Much the same point was made in R v BL.[3]Other judges of this court evidently share that view, particularly when a relationship of “mutual commitment” is involved, and have been prepared to dispose of similar charges without proceeding to conviction.[4]
[3] [2005] SASC 435 at [19]
[4] R v Hazell No. 974/2006 20 February 2007 Judge Shaw, R v Bastian No. 08/346 27 June 2008 Judge Beazley, R v Avenell No. 08-537 10 October 2008 Judge Lovell, R v Hooper No. 07/1203 Judge Muecke 21 October 2008, and see R v BL above
A number of sentencing options were referred to during the course of submissions. Defence counsel sought disposition without penalty or conviction, pursuant to s 15 or alternatively a bond without conviction under s 39 of the Act. A fine under s 16 was not appropriate as the couple live in a “tight” financial situation. At the same time it is difficult to appreciate that a bond would be of any utility. The defendant is not in need of any treatment, supervision would be pointless as well as a waste of overtaxed public resources and there is no other rehabilitative need to fulfil.
Was the offence trifling?
That leaves s 15. This option is triggered only if the court is first prepared to find “the offence so trifling that it is inappropriate to impose any penalty”. Whether an offence can be properly categorised as trivial, is not determined by reference to the offence in the abstract or the maximum penalty prescribed – 10 years in this instance. Rather it is a question to be ascertained by reference to the conduct constituting the offence and the actual circumstances in which the offence is committed: Walden v Hensler.[5] And as Besanko J pointed out in Siviour-Ashman v Police,[6] “the circumstances which explain how the offence came to be committed should also be considered.” For this purpose his antecedents are irrelevant Przybytniak v Police.[7] This case is far from being a typical example of offences of its type: Siviour–Ashman v Police.[8]
[5] (1987) 163 CLR 561 at 577 and 595-596
[6] (2003) 85 SASR 23 at [60]
[7] (1998) 100 A Crim R 196 at 200
[8] (2003) 85 SASR 23 at [25-26]
The mischief at which the offence is directed is to protect young girls too immature to give informed consent, from predatory men taking advantage of them. It is not aimed at protecting young women or to penalise young men, who fall in love.
This was a case of two young people making a virtuous commitment to each and their consequent mutually considered decision to have intercourse, in consummation of their relationship. In that situation it would be “manifestly unfair and unreasonable to penalise the offender and bring about the imposition of the stigma of a criminal conviction”.[9] For these reasons because the offence was trivial, the only appropriate course was to proceed to dismiss the charge without conviction.
[9] Coles Myer Ltd v Catt (1992) 58 SASR 298 at 309