R v Hile
[2018] ACTSC 266
•21 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hile |
Citation: | [2018] ACTSC 266 |
Hearing Dates: | 1 – 4 May 2018 |
DecisionDate: | 21 September 2018 |
Before: | Elkaim J |
Decision: | See [22] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency with a person under 16 years – sexual intercourse with a person under 16 years |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55(2) and 61(2) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 |
Parties: | The Queen (Crown) Joshua Thomas Hile (Offender) |
Representation: | Counsel Mr J Hiscox (Crown) Ms B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 231 of 2017 |
ELKAIM J:
On 7 May 2018, the offender was found guilty by a jury of six counts relating to offences committed against a young person.
Counts 1, 2, 3 and 5 involved an act of indecency on a person under the age of 16. The maximum penalty for this offence is 10 years’ imprisonment. Counts 4 and 6 involved an act of sexual intercourse with a person under the age of 16. The maximum penalty for this offence is 14 years’ imprisonment.
The offences all involve the one complainant – a young girl who was 14 years old at the time the offences were committed. The offender gave oral evidence. The jury’s verdicts indicate that they were satisfied beyond reasonable doubt of the veracity of the complainant’s evidence and entirely rejected the version put forward by the offender.
I am satisfied that the jury found beyond reasonable doubt the following facts in respective of each respective count:
(a)Count 1: The offender was at the complainant’s house. He gave her a “hickey” above her left breast.
(b)Count 2: This count refers to the offender kissing the complainant at her home about three days after the first act of indecency. This and the following offences occurred after the complainant and the offender returned from a local sports oval and went into the complainant’s bedroom.
(c)Count 3: This offence occurred in the complainant’s bed. The complainant masturbated the offender.
(d)Count 4: This is the first charge of sexual intercourse. At the request of the offender, and with some physical encouragement by pushing her head towards his penis, the complainant performed oral sex upon the offender.
(e)Count 5: This is another act of indecency in which the offender and complainant were kissing.
(f)Count 6: This offence involved penile-vaginal intercourse for a short period of time. The offender did not use a condom. He did stop the intercourse when requested to do so by the complainant.
On an objective analysis, the acts of indecency are less serious. The sentencing of the offender must be dominated by the two charges of sexual intercourse. Their commission upon a minor of itself renders them serious. At the same time, it must be recognised that the complainant willingly participated in the acts, although this agreement cannot be viewed as consent.
It is the very essence of a charge involving sexual activity with a young person that, no matter how willing the young person might have been, a person under the age of 16 has not yet developed the maturity or experience to willingly give consent to acts of this type.
In his oral evidence, the offender did not dispute, in general terms, the activity that had taken place. He did suggest that the hickey was closer to the complainant’s clavicle than her breast and he denied that any part of his penis had entered the vagina of the complainant, in relation to Count 6.
Besides the points of factual dispute that I have mentioned above, the central issue raised by the offender was whether or not he, on reasonable grounds, believed the complainant was over the age of 16. Plainly the jury accepted the complainant’s evidence that she had told the offender that she was 14 or, at least, the jury was not satisfied that there was a reasonable basis for the offender to believe the complainant was 16 or over. Whichever is the case, it matters little in respect of sentencing.
The offender was 27 years of age when the offences were committed. There is an overwhelming air of the offender taking advantage of an underage schoolgirl. It might be said she was somewhat precocious, that she was willing to lie to her mother and grandmother to be with the offender and that she encouraged his attention. Nevertheless, he took advantage of her when, knowing she was underage, he should have stayed well clear of her.
The offender was born in the Australian Capital Territory (ACT) in 1990. He is now 28 years old.
At 12 years of age he moved to New South Wales with his mother and two siblings. He came back to the ACT when he was 16. He is apparently on good terms with his siblings and parents. He has the continuing support of his father. The offender has a son of his own. He lives with his mother in Victoria. The offender has had no contact with him since about 2015.
The offender was educated to the end of Year 10. Since this time he has had some periods of employment, generally in the retail industry.
Not surprisingly the offender has been involved with illegal drugs and there is some suggestion in the Pre-Sentence Report that he has not been straightforward in disclosing his drug and alcohol history. He does, however, maintain that he has been drug-free since the birth of his son.
According to the Pre-Sentence Report, the offender is anxious to appeal his conviction because, although he acknowledges the sexual intercourse, he says that the complainant misled him about her age. There is clearly no element of remorse in his attitude. I accept the Pre-Sentence Report’s assessment that he has a moderate to high risk of reoffending in a similar fashion.
The offender has a criminal record which, notably, includes the following: aggravated burglary and acts of indecency without consent. The latter are of most concern because they involve offences of a sexual nature although not with a young person. On 18 August 2015, the offender was sentenced to imprisonment for three years and two months. While in custody he completed the adult sex offenders program, unfortunately to little avail. The offences for which I am now sentencing him were committed while on parole in respect of the indecency offences.
The objects and principles of offending, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT), must be taken into account as must s 10 which says that a court should not sentence a person to a term of imprisonment except as a last resort.
As noted above, the overall sentence will necessarily be largely dictated by the two sexual intercourse charges. There must be a degree of concurrency and accumulation in order to avoid an overly long head sentence. Some of the offences are obviously of minor severity. As far as the two counts of sexual intercourse are concerned, I assess them as being of medium objective severity. The fact that a minor was involved has influenced my assessment.
I have also had regard to the Victim Impact Statement prepared by the complainant’s mother. What this statement shows is that offences against a person are not restricted to the harm caused to that person. The harm is more widespread and encompasses both the victim and the victim’s family. It is evident that the victim has spiralled into a life of inappropriate behaviour where she is often living away from home and has alienated herself from her family. This has caused great distress to her family as well as leading her to change her style of life to one in which her innocence has been abandoned and she is effectively living on the streets as a homeless person.
A prison sentence is inevitable. No suggestion was made to the contrary.
The offender has been in custody since his arrest on 25 May 2017. On 3 July 2017 the offender’s parole was revoked so that since then he has effectively been in custody in relation to the previous offences. In my sentencing it is necessary to give him credit for the period from 25 May 2017 to 3 July 2017. In addition, I can include a further amount of backdating to reflect a degree of accumulation in the sentences.
It is necessary, both in regard to the sentencing for the current matters and having regard to his current reasons for being in custody, to have regard to principles of totality. I must also take into account that the offences generally involved one course of conduct so that there must be a degree of both concurrency and accumulation.
I have come to the view that, including taking into account the period between 25 May and 3 July 2017, that the starting point for these offences should be 1 January 2018. I think each of the offences of sexual intercourse should attract a term of imprisonment of two years and there should be a degree of accumulation in respect of them. The complainant, and the public at large, are entitled to see that the offender has been sentenced, at least to a degree, separately for each of these two serious offences.
(a)In respect of Count 1, act of indecency with a person under 16 years (CC 2017/5875), the offender is sentenced to one month imprisonment to commence on 1 January 2018 and end on 31 January 2018.
(b)In respect of Count 2, act of indecency with a person under 16 years (CC 2017/5876), the offender is sentenced to one month imprisonment to commence on 1 January 2018 and end on 31 January 2018.
(c)In respect of Count 3, act of indecency on a person under 16 years (CC 2017/5877), the offender is sentenced to six months’ imprisonment to commence on 1 June 2018 and end on 30 November 2018.
(d)In respect of Count 4, sexual intercourse with a person under 16 years (CC 2017/5879), the offender is sentenced to two years’ imprisonment to commence on 1 January 2018 and end on 31 December 2019.
(e)In respect of Count 5, act of indecency on a person under 16 years (CC 2017/5878), the offender is sentenced to one month imprisonment to commence on 1 January 2018 and end on 31 January 2018.
(f)In respect of Count 6, sexual intercourse with a person under 16 years (CC 2017/5880), the offender is sentenced to two years’ imprisonment to commence on 1 June 2018 and end on 31 May 2020.
(g)The total period of imprisonment is two years and five months.
(h)I set a non-parole period of 18 months to expire on 30 June 2019. The setting of this non-parole period applies also to the resetting of the non-parole period in respect of the offences for which the offender was sentenced on 18 August 2015.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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