R v Horton-Hegarty
[2018] ACTCA 22
•30 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Horton-Hegarty |
Citation: | [2018] ACTCA 22 |
Hearing Date: | 17 May 2018 |
DecisionDate: | 30 July 2018 |
Before: | Murrell CJ, Mossop and North JJ |
Decision: | 1. The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – suspended sentence for sexual offences against a person under the age of 16 – whether sentences imposed manifestly inadequate – whether sentence adequately recognised sentencing purposes of general deterrence and denunciation and the objective seriousness of offences – presumption of harm and position of authority considered – no error in sentencing judge’s reasoning – lenient sentence but not manifestly inadequate – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 55(2), 64(3) Crimes Act 1958 (Vic), ss 45, 47 Sentencing Act 1991 (Vic), s 5(2) |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Clarkson v The Queen [2011] VSCA 157; 32 VR 361 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 |
Parties: | The Queen (Appellant) Benjamin Horton-Hegarty (Respondent) |
Representation: | Counsel J White SC (Appellant) B Morrisroe (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 46 of 2017 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 18 September 2017 Case Title: R v Horton-Hegarty Citation: [2017] ACTSC 268 |
THE COURT:
Introduction
The appellant has appealed against sentences imposed by a judge of the Supreme Court (the sentencing judge) for five offences of sexual intercourse with a person under the age of 16 (Crimes Act 1900 (ACT), s 55(2)), and one offence of using a child for the production of child exploitation material (Crimes Act, s 64(3)). The appellant claims the suspension of all sentences resulted in an overall sentence that was manifestly inadequate.
On 18 September 2017, the sentencing judge imposed the following sentences:
Offence date Offence Sentence 6 March 2014 Engage in sexual intercourse with TS, a person under 16 15 months imprisonment from 18 September 2017 21-24 March 2014 Engage in sexual intercourse with TS, a person under 16 15 months imprisonment from 18 December 2017 2-5 April 2014 Engage in sexual intercourse with TS, a person under 16 18 months imprisonment from 18 March 2018 6-24 April 2014 Engage in sexual intercourse with TS, a person under 16 15 months imprisonment from 18 June 2018 2-24 April 2014 Engage in sexual intercourse with TS, a person under 16 18 months imprisonment from 18 September 2018 14 January-24 April 2014 Use the child TS for the production of child exploitation material 9 months imprisonment from 18 September 2017
The total sentence of two years and six months imprisonment, from 18 September 2017 to 17 March 2020, was suspended upon the respondent entering a good behaviour order for two years and six months. The good behaviour order contained a supervision condition and a requirement that the respondent undertake 300 hours of community service within two years.
Each of the sentences that was imposed had been reduced by approximately 25 per cent to take account of the utilitarian value of the pleas.
Facts
The respondent pleaded guilty to the six charges one week prior to the date of a pre-trial hearing at which the evidence of the complainant would have been taken.
The facts were set out in a Statement of Facts which was agreed.
The complainant was a high school student who worked at a takeaway food shop in Gungahlin as a casual team member. She started work there in July 2013. In about October 2013, the respondent began working there as a full-time assistant manager. He was then 21 years old. The respondent and the complainant formed a friendship which would sometimes consist of communicating by text message and social media outside of work. The relationship became increasingly flirtatious around the beginning of 2014. At that time the complainant was undergoing a difficult time emotionally for reasons which included the breakup of her mother and stepfather in 2013. She confided to the respondent that she had been self-harming by cutting herself. The respondent asked her via Facebook to send him naked images of her breasts. She sent the respondent a photograph of herself in a bra. She also took photographs of her naked breasts and body using her iPhone and sent the images to the respondent via Snapchat. These communications give rise to Count 6 on the indictment, using a child for the production of child exploitation material.
In the weeks that followed, the respondent asked the complainant if she wished to have sex and she agreed. On 6 March 2014, the complainant caught a bus home from school. The respondent picked her up from a location near her house. She was wearing her school uniform. The respondent took her to the house of a friend of his where they watched a movie, then started kissing and removed their clothes. He put his finger into her vagina and then they had penile-vaginal sexual intercourse. He asked her to perform oral sex on him which she did until he ejaculated in her mouth. These acts give rise to Count 1 on the indictment.
On 22 or 23 March 2014, the respondent picked up the complainant late at night from her home and drove to his house where he lived with his parents. The respondent and complainant had penile-vaginal sexual intercourse in his bedroom. This gave rise to Count 2 on the indictment.
On 3 or 4 April 2014, the complainant went to the respondent’s house late at night and engaged in penile-vaginal sexual intercourse in the respondent’s bedroom. The respondent asked the complainant to have anal sex with him and the complainant agreed. The complainant felt intense pain during the intercourse. This was Count 3 on the indictment.
Between 6 and 24 April 2014, the complainant went to the respondent’s house late at night and had penile-vaginal intercourse with him. Between 2 and 24 April 2014, the complainant again went to the respondent’s house late at night and had anal intercourse with him. These were Counts 4 and 5 on the indictment.
On about 23 April 2014, the complainant told the respondent that she did not want to keep seeing him. He resigned from his job at the takeaway food shop on 28 April 2014.
Police subsequently discovered screenshots of Facebook messenger conversations between the respondent and a friend in which the respondent boasted about having sex, including anal sex, with the complainant whom he acknowledged was underage and in relation to whom he commented “That’s 12 years in jail if cops find out”.
Crown appeal claiming manifest inadequacy
The principles relating to Crown appeals against sentence were recently summarised and explained by this Court in R v Lee [2017] ACTCA 30 at [53]-[57].
That a sentence is manifestly inadequate is a conclusion that there has been an implied error which may be inferred from the result: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]; R v Meyboom [2012] ACTCA 48 at [60].
The appellant contended that the inherent leniency of the fully suspended sentences failed to adequately recognise the sentencing purposes of general deterrence and denunciation, and the objective seriousness of the particular offences that arose, inter alia, because of the harm occasioned to the victim and the abuse of authority that was involved.
The appellant did not submit that the individual sentences and the total sentence of two years and six months imprisonment were manifestly inadequate, but described them as “very lenient”.
Sentencing judge’s remarks
The sentencing judge acknowledged the maximum available penalties: 14 years imprisonment for the offences of sexual intercourse with the young person, and 10 years imprisonment for the offence of producing child exploitation material (R v Horton-Hegarty [2017] ACTSC 268 at [5]-[6]). He described the personal circumstances of the respondent: (at [8]-[13]) and the facts relating to each of the charges (at [14]-[23]). He referred to some aspects of the pre-sentence report reflecting upon the attitude of the respondent: at [24]-[27]. He identified that the pre-sentence report had assessed the respondent as being at a low to medium risk of sexual reoffending: at [27].
His Honour referred to the objects and purposes of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) (the ‘Sentencing Act’), including the demands of deterrence and the need to impose a sentence that would not deprive the respondent of the prospect of rehabilitation: at [28]. His Honour noted, at [28], that imprisonment is a sentence of last resort: s 10 of the Sentencing Act.
He referred to the written character references that had been tendered: at [30]-[32].
While the sentencing judge describe the offences as “very serious offences”, he characterised the particular facts as “towards the lower end of the range of objective seriousness”, having regard to the range of sexual offending encompassed by the relevant provisions: at [33].
His Honour referred to a portion of the pre-sentence report in which the respondent was reported as having said that there was a degree of unfairness in the charges because the sexual intercourse was consensual and said that the respondent was wrong: at [34]. His Honour cited Clarkson v The Queen [2011] VSCA 157; 32 VR 361 for the proposition that consent cannot mitigate the seriousness of the offences, although a lack of consent could be an aggravating factor: at [35]. His Honour also emphasised that there was an important difference between a person agreeing to have sexual intercourse and giving informed consent: at [36]. His Honour referred to and discussed two decisions of this Court, R v Goboly [2016] ACTSC 322 and R v Dickerson [2016] ACTSC 337: at [37]‑[38]. His Honour acknowledged the relative seriousness of the type of intercourse that occurred (penile-vaginal intercourse and anal intercourse) and the fact that it occurred on a number of occasions: at [37]. His Honour acknowledged the relevance of the age difference between respondent and the complainant: at [38].
The sentencing judge acknowledged the significant impact upon the victim: her vulnerability at the time of the offences, that the trust that she had in the respondent had been destroyed and her continuing thoughts about the effects of her experiences upon her life. His Honour referred to the entitlement of the victim and the community “to feel that there has been appropriate punishment”: at [40]. His Honour contrasted the victim’s suffering with the offensive bravado of the respondent’s boast to his friend: at [41].
The sentencing judge agreed with the parties that a prison sentence was inevitable: at [42]. His Honour then proceeded to consider whether there were alternatives to full‑time imprisonment. His Honour concluded that a wholly suspended sentence “would provide the best prospect of rehabilitation but also allow the imposition of a stern prison sentence which could take effect if the provisions of an associated Good Behaviour Order were breached”: at [43]. His Honour considered that a partially suspended sentence would carry a very real risk of the respondent becoming “enmeshed in the criminal population and for his future to be guided by that association”: at [44]. His Honour rejected an intensive corrections order as providing no advantage to the community as the respondent had no particular problem that needed targeting: at [46].
The sentencing judge was strongly influenced by sentencing considerations that apply to young persons, as expressed in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]: see [48]. First, young offenders may be “immature” and “more prone to ill‑considered or rash decisions”, and may lack insight into the seriousness of the criminal conduct. Second, they may have more potential for rehabilitation because patterns of antisocial behaviour were not yet entrenched and they remain open to mental and emotional development. Third, full-time incarceration may be more likely to impair, rather than improve, their rehabilitation by exposing them to corrupting influences which may entrench criminal behaviour.
His Honour said (at [49]) that although 21 years of age did not make the respondent a young person, because of his background and lack of criminal record he should be treated within the bounds of the principles articulated in Azzopardi v The Queen. He also said “there is no evidence of predatory conduct derived from the offender’s position of seniority. It may be that the victim was influenced by him being a manager but the evidence does not reveal that he took advantage of this fact”: at [50].
He then articulated the sentences that he would impose. The custodial sentences incorporated a reduction of approximately 25 per cent as a result of the pleas of guilty.
Submissions of the appellant
Counsel for the appellant made submissions directed to identifying the relevant matters which, in his submission, indicated that the Court should reach the conclusion that the sentence was manifestly inadequate. Those matters were:
a) the inherent leniency of a fully suspended sentence;
b) the need in cases such as this for general deterrence and denunciation;
c) unifying principles relevant to sentencing child sexual offences;
d) the objective seriousness of the offences; and
e) the subjective circumstances of the respondent.
Fully suspended sentence
The appellant identified that a fully suspended sentence is significantly more lenient than a sentence of full-time imprisonment or a partially suspended sentence: Samani v The Queen [2017] ACTCA 23 at [33]. It submitted that such sentences do not address the sentencing purposes of punishment and general deterrence to the same extent as do sentences of full-time imprisonment.
General deterrence and denunciation
The appellant submitted that the nature of the offending in the present case and, in particular, the objective seriousness of the offences brought strongly into play the principles of general deterrence and denunciation. It submitted that the sentence imposed insufficiently represented those principles.
Unifying principles: presumption of harm and position of authority
Next, the appellant submitted that comparable cases were of relevance insofar as they disclose “unifying principles”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]. It then submitted that the relevant unifying principles were that there is a presumption of harm in relation to child victims and that, where the offender is in a position of authority, that circumstance should be treated as aggravating the offending conduct.
So far as the submissions were directed to a “presumption of harm”, counsel for the appellant referred to observations in a number of cases: R v CV [2013] ACTCA 22; 233 A Crim R 67 at [24]; R v Eisenach [2011] ACTCA 2 at [92]; R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [110]; Clarkson v The Queen at [26]; R v Nelson [2016] NSWCCA 130 at [23]-[24]; Riggall v The State of Western Australia [2008] WASCA 69; 37 WAR 211 at [41]; Director of Public Prosecutions (Vic) v Abad [2016] VSCA 279 at [34]. He also pointed to the material in the victim impact statement in the present case. The appellant submitted that, notwithstanding that the sentencing judge took into account the victim impact statement, the sentence was manifestly inadequate having regard to “the principles of the presumption of harm to victims of child sexual assault”.
The ultimate submission put by the appellant was:
43. The presumption of harm as a sentencing principle in child sexual assault cases amplifies the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) such as “to recognise the harm done to the victim of the crime and community”, “to ensure that the offender is adequately punished for the offence in a way that is just and appropriate” and “to make the offender accountable for his or her actions”. The suspension of the sentence does not reflect these purposes, and the sentence is therefore manifestly inadequate. (citations omitted)
In relation to the submission that the respondent was in a position of authority, the appellant submitted that “courts have recognised that often it is the existence of a position of authority that makes the offending behaviour substantially more likely to occur” because of an “inherent power imbalance”. Once again, counsel referred to a number of authorities in support of this submission: Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [148]; Kalofolias v The Queen [2017] VSCA 308 at [46]; JAF v The State of Western Australia [2008] WASCA 231; 190 A Crim R 124 at [15]; R v CV at [23]-[24]. The appellant submitted before the sentencing judge that the consent of the victim was essentially a reflection of the “relationship between the child and the offender as arising out of their employment relationship”. The sentencing judge, during the course of argument, did not appear to accept this contention. In the pre-sentence report the respondent is recorded as having “blamed the victim for being flirtatious” but also acknowledging that “he had not dissuaded her alleged flirtations or sought advice on how to manage the situation”. In his Honour’s decision (at [50]), the sentencing judge said “there is no evidence of predatory conduct derived from the offender’s position of seniority. It may be that the victim was influenced by him being a manager but the evidence does not reveal that he took advantage of this fact”. The appellant submitted that this conclusion “amounts to [a] misunderstanding of the relevant principles”. It then referred to a number of decisions involving persons in a position of authority, in particular R vHitanaya [2010] NTCCA 3 and Clarkson v The Queen.
Objective seriousness
In relation to the objective seriousness of the offences, the appellant submitted that they were “ongoing, pre-meditated exploitation and premature sexualisation of a 14 year old casual employee, by her 21 year-old assistant manager”. Counsel submitted that in the circumstances the sentencing judge’s finding (at [33]) that the offences fell “towards the lower end of the range of objective seriousness” was inconsistent with the facts. He submitted that the sentencing judge did not advert to the relative ages of the respondent and the complainant and failed to adequately reflect the significance of the abuse of authority on the respondent’s part or make any comment about the grooming aspects of the child exploitation charge.
Subjective factors
So far as the subjective factors were concerned, the appellant submitted that they were not particularly compelling. The appellant referred to the fact that the respondent was 21 years old, that his offending had involved an ongoing and premeditated course of conduct, that he did not demonstrate remorse in relation to the offending and instead boasted about it later. The appellant also pointed to the author of the pre-sentence report’s comments that he attempted to minimise his culpability for his offending. The appellant therefore submitted that nothing in the subjective circumstances warranted the complete suspension of the sentence of imprisonment.
Submissions of the respondent
The respondent’s submissions focused upon the submissions of the appellant relating to the presumption of harm and the fact that the respondent was in a position of authority.
In relation to the presumption of harm, the respondent accepted that a presumption of harm flowed from sexual offences against a child. The respondent pointed in this case to the fact that the sentencing judge in his reasons had made specific reference to the terms of the victim impact statement (at [40]) and the “social, emotional and physical matters” that the law says a person under the age of 16 is incapable of considering (at [36]). Therefore, the respondent submitted that the presumed and proved harm was at the forefront of the sentencing judge’s sentencing considerations.
In relation to the respondent being in a position of authority, the submissions for the respondent analysed and distinguished the circumstances which existed in the authorities referred to by the appellant. The respondent drew attention to the submission of the Crown before the sentencing judge that it was not a situation in which the complainant felt compelled to engage in sexual activity because the respondent was her boss, but rather that “given those circumstances, he was in that position of authority. He was the more mature person, the responsible adult”. The respondent submitted that this was appropriately reflected by the sentencing judge where his Honour noted that there was no evidence of any predatory conduct derived from the position of authority but took into account that the victim may have been influenced by the respondent’s position as a manager: at [50]. So far as the appellant placed reliance upon the issue of “grooming” constituted by the charge of using a child for the production of child exploitation material, the respondent noted that there was no express reference to “grooming” in the submissions made to the sentencing judge.
The respondent submitted that whether or not to fully suspend the sentence was part of the sentencing discretion that his Honour was required to exercise, taking all relevant circumstances into account, and that he did so in the present case. Even if the sentence was a lenient one, it was not manifestly inadequate so as to demonstrate appellable error on the part of the sentencing judge.
In the event that this Court reached the conclusion that the sentence was manifestly inadequate, the respondent submitted that the Court should exercise its residual discretion not to intervene, particularly in circumstances where almost all of the substantial community service work required as part of the sentencing judge’s sentence had been completed.
Consideration
It is convenient to address the submissions by reference to the particular matters relied upon by the Crown to establish manifest inadequacy.
Suspended sentence
It can be accepted that a fully suspended sentence involves a significant degree of leniency when compared with a sentence required to be served wholly or partly by way of full-time detention.
General deterrence and denunciation
It is clear that general deterrence and denunciation are clearly very significant sentencing considerations for this type of offending. The sentencing judge’s reasons did not emphasise those considerations although, having regard to what he said at [28]-[29], he was clearly very conscious of the need for “meeting the expectations of the community” and “the demands of deterrence”. The substantial point of his Honour’s reasons involved the balancing exercise that was required between those and other sentencing considerations.
Presumption of harm
Sections 33(1)(e) and (f) of the Sentencing Act require a sentencing court to take into account the effect of the offences on the victim and any injury, loss or damage resulting from the offences.
As the authorities referred to in the appellant’s submissions demonstrate, this Court and other intermediate courts of appeal have recognised that in relation to sexual offending against children, harm is presumed to occur.
The expression “presumption of harm” is derived from the decision of a five judge bench of the Victorian Court of Appeal in Clarkson v The Queen. The issue that the Court was considering was whether, under the Crimes Act 1958 (Vic) and the Sentencing Act 1991 (Vic), the ostensible or apparent consent of a child could be a mitigating factor upon sentencing for a child sex offence. The Court concluded that the apparent or ostensible consent could never be a mitigating factor, although its proven absence may be an aggravating factor. In summarising the approach taken, the Court said:
3. The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.
The Court referred (at [7]) to what it described as “exceptional cases” where “the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity”.
In the body of its reasons, the Court elaborated upon the relevance of harm presumed to be caused by premature sexual activity, saying:
26. In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and – to that end – to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if subjectively attracted to the idea of participating in such activity. Secondly – and in order to advance the protective purpose – the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.
The Court (at [28]) said that “The Victorian provisions reflect a longstanding community consensus that it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity”. The Court then referred to a report of the UK Home Office Policy Advisory Committee in relation to the age of consent, the dissenting judgment of McLachlin J in R v Hess [1990] 2 SCR 906 and various speeches in the decision of the House of Lords in R v G [2009] 1 AC 92, which explained the policy basis for the prohibition upon sexual activity with children.
The Court quoted a portion from the judgment of McLachlin J in R vHess, a case dealing with an absolute prohibition upon sexual intercourse with a girl under the age of 14, in which her Honour had said:
What then is the objective of [the provision prohibiting sexual intercourse with a female under the age of 14 years]. It has two aspects. The first is the protection of female children from the harms which may result from premature sexual intercourse and pregnancy. The second is the protection of society from the impact of the social problems which sexual intercourse with children may produce.
I adhere to the view that I expressed in R v Ferguson that the protection of children from the evils of intercourse is multi-faceted and so obvious as to not require formal demonstration. Children merit this protection for three primary reasons. The first is the need to protect them from the consequences of pregnancies with which they are ill‑equipped to deal from the physical, emotional and economic point of view. The second is a need to protect them from the grave physical and emotional harm which may result from sexual intercourse at such an early age. The third is the need to protect them from exploitation by those who might seek to use them for prostitution and related nefarious purposes.
In R v G, Baroness Hale, having referred to the decision of McLachlin J in R v Hess said:
49. … More importantly, anyone who has practised in the family courts is only too well aware of the longterm and serious harm, both physical and psychological, which premature sexual activity can do.
The Victorian Court of Appeal concluded:
33. What emerges clearly from these authorities is that absolute prohibitions on under‑age sexual activity are founded on a presumption of harm. Adopting Baroness Hale’s phrase, premature sexual activity is presumed to cause “long-term and serious harm, both physical and psychological” to the child. Premature sexual activity, for this purpose, means activity before the age when the child can give meaningful consent. It is for this reason that the presumption of harm is unaffected by the presence of consent. (footnote omitted)
The Court then articulated the implication of that conclusion for sentencing. In the Victorian context, amongst the matters to which regard had to be had under the Sentencing Act 1991 (Vic) were the nature and gravity of the offence, the offender’s culpability and the impact of the offence on the victim. In the light of those considerations, the appellants had submitted that the victim’s consent must be capable of being a mitigating factor. The Court said:
36. In our view, the provisions of the Act to which we have referred preclude the sentencing court from approaching consent in this way. The necessary implication of the provisions is that the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any less serious.
What can be seen from the Court’s chain of reasoning is that it was addressing what was essentially a problem of statutory interpretation. Its conclusion was that the statutory provisions involving an absolute prohibition on sexual activity with children under the age of 16 necessarily excluded the existence of apparent or ostensible consent as being a mitigating factor for the purposes of sentencing. It was, therefore, in the context of that interpretive exercise that the Court was referring to various statements articulating the harms of premature sexual activity in support of the statement that the statutory prohibitions in Victoria “reflect a long-standing community consensus that it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity”.
This Court has referred with approval to the decision in Clarkson v The Queen when addressing a submission that a sentencing judge had wrongly treated the fact that sexual activity with an underage person was consensual as an extenuating circumstances: R v CV at [23]-[15]. In the present case, the sentencing judge expressly (at [35]) adopted Clarkson v The Queen as establishing that “consent cannot mitigate the seriousness of the offences (although a lack of consent can be an aggravating factor)”. In doing so, his Honour was plainly correct.
His Honour (at [40]) also specifically referred to the contents of the victim impact statement. In this case, the victim impact statement emphasised that the complainant suffered very significant harm of the type that is assumed to be associated with offences of this nature, including feelings of worthlessness, difficulty with developing trusting relationships, guilt, self-blame and fearfulness.
Nothing in his Honour’s reasons suggests that he treated the statutory prohibitions as not involving a presumption that sexual activity by underage persons was harmful. Further, nothing in his Honour’s reasons suggests that his Honour wrongly, without evidence, treated the case as one in which the victim was not likely to suffer harm which the law presumes to flow from premature sexual activity: cf Clarkson v The Queen at [7].
It is true that his Honour did not make explicit reference to any of the cases in which courts have attempted to articulate the nature of the harm that is presumed. In addition to the formulation in cases such as R v Hess and R v G, judges have said, for example:
a) R v Nelson:
23.Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.
b) R v Eisenach:
92.While serious offences in themselves, they generally impair the opportunity for victims to develop into mature adults addressing their sexuality in a timely and appropriate way.
In another commonly cited case, R v CMB [2014] NSWCCA 5 at [92], there was specific expert psychiatric evidence tendered without objection which “confirmed in stark and troublesome terms the profound and deleterious effect that child sexual abuse may have upon victims for many years, if not for the whole of their lives”.
Where, as here, there was evidence in the form of a victim impact statement but not general or case specific expert evidence as to the likely long-term consequences of the offender’s conduct, care must be taken in relation to any insistence upon a particular formulation of the likely long-term consequences of the sexual activity. The cases in which courts have attempted to formulate the nature of the long-term emotional and psychological harm that can arise from premature sexual activity raise a problematic issue of precisely how courts are entitled to be informed of such matters. In the context of prospectively formulating principles to be applied to sentencing, Spigelman CJ reviewed the means of acquiring information for the purposes of developing sentencing principles or guideline judgments in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [59]-[64]. The difficulties that arise in relation to the approach to what has been described as “legislative facts” is illustrated by the difference in approaches articulated by McHugh J on the one hand, and Callinan J on the other, in Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 at [64]-[65] and [165]-[166].
This case does not require the Court to resolve this issue in the context of the present appeal. It is sufficient to recognise that his Honour expressly recognised the effect of Clarkson v The Queen, made specific reference to the victim impact statement and that the sentence imposed was not, having regard to the other circumstances of the case, such as to indicate that his Honour erred by reason of his Honour failing to give weight to the actual or potential harm done to the victim.
Position of trust or authority
Section 33(1)(u) of the Sentencing Act requires a sentencing court to take into account whether the offender was in a position of trust or authority when the offence was committed.
The fact that an offender is significantly older and in the position of authority over the victim because of a manager-employee relationship may increase the seriousness of an offence: Kalofolias v The Queen at [4]-[12], [46], [53].
In many cases of child sexual assault, the offender is in a position of authority vis-à-vis the child, and the child’s ostensible consent to the sexual interaction is a reflection of that relationship of authority and the associated power imbalance. However, the degree to which a relationship of authority may have influenced an offence (and thereby aggravated its objective seriousness) will always depend upon the circumstances of the particular offence.
In this case, the sentencing judge specifically considered the extent to which the respondent’s position of authority affected the objective gravity of the offending. His Honour said:
50. It is also important to remember that there is no evidence of predatory conduct derived from the offender’s position of seniority. It may be that the victim was influenced by him being a manager but the evidence does not reveal that he took advantage of this fact.
JAF v The State of Western Australia was a case which involved sexual offences committed by a 34 year old teacher upon a complainant who was 14 or 15 years old and a student at the school where the offender taught, although he did not teach her. He was the coach of a water polo team in which she played and was a friend of her family. In the concurring judgment of McLure JA in JAF v The State of Western Australia, her Honour said:
25. It is relevant to bear in mind that, in proving the circumstances of aggravation, the State does not have to establish that the offence occurred because the offender used any power or influence arising from the appellant’s position vis a vis the complainant. That is, the State does not have to establish a causal connection between the position of care, supervision or authority and the commission of the offences. However, proof of such a causal connection would increase the seriousness of the offending. No such causal connection was established in this case. Nevertheless, it remains the position that the offences committed by the appellant are serious and are the type of offences for which general deterrence is a weighty discretionary factor.
In the present case, the Statement of Facts did not admit, and the Crown did not otherwise prove beyond reasonable doubt, that there was a causal connection between the managerial position held and the offences committed. It did prove that the work environment led to the respondent and complainant coming into contact with each other, but that is all. His Honour was correct to find that there was “no evidence of predatory conduct derived from the offender’s position of seniority”. That conclusion did not detract at all from the significant difference in age between the respondent and complainant and the difference in maturity and power that may be inferred as a result.
Objective seriousness
His Honour did recognise the features of the offending conduct which reflected upon its objective gravity: the fact that it involved penile-vaginal and anal intercourse and the extent of the age difference between the parties. His Honour also recognised the absence of factors which would otherwise significantly aggravate the offence, namely, the absence of predatory conduct derived from the respondent’s position of authority and the absence of a lack of ostensible or apparent consent. In the circumstances, the offending should have been characterised as being in the mid range of objective seriousness for the offence in question rather than, as his Honour did, “towards the lower end of the range of objective seriousness”. However, there is always an element of subjective judgment when assessing how a combination of objective features should be described within the range of seriousness for a particular offence and the formulation adopted by his Honour did not use particularly precise language. In such a case, the real question is whether the judge has appropriately identified the features of the conduct which bear upon its objective seriousness and whether, in the circumstances, the resulting sentence is manifestly inadequate.
Subjective circumstances
The respondent had no criminal history. As the sentencing judge pointed out, the personal circumstances were disclosed by the pre-sentence report and the references that were tendered.
The pre-sentence report disclosed that the respondent had positive family relationships and was single with no children. He is of Aboriginal descent on his father’s side and maintains a close relationship with his Aboriginal grandmother. He completed Year 12 at school. He was working part-time in his mother’s business and was enrolled in a business administration course. He had a peer group that was mostly pro‑social and had no mental health problems other than a depressed mood due to the impact of the current proceedings. He had developed problematic levels of alcohol use at the time of the offending, although this reduced after leaving that job.
The references from his mother and stepfather described his family background and gave insight into his behaviour whilst growing up. The reference from his grandmother was positive. The letter from his father addressed his remorse, appreciation of the gravity of the charges and the impact that his conduct had upon the victim. Four other references were tendered from friends or family friends. Each of these was very positive.
There were conflicting indications in relation to his appreciation of the wrongfulness of his conduct. Some parts of the pre-sentence report reflect the author’s view that he did not fully understand that a 14 year old could not consent and that he was attributing some blame to the victim. On the other hand, the material in the references that were tendered referred to his remorse.
The Crown is correct in so far as it asserts that there was nothing exceptional about the personal circumstances of the respondent. It was not a case where the subjective circumstances were compelling. However, there was a sound foundation for his Honour’s statement that “This offender is a young man who has no prior record, has admitted his guilt and has demonstrated his value to society both actually and potentially”.
Conclusion and order
His Honour recognised that a balance was required to be struck between the various competing objects and purposes of sentencing set out in ss 6 and 7 of the Sentencing Act. He was clearly concerned to satisfy the requirements for deterrence and denunciation through the combination of a custodial sentence and a requirement to perform community service, whilst extending significant leniency to the respondent having regard to his past good conduct and likely future contribution to society. He made express reference to the tension that exists between “the demands of deterrence and the need to not impose a sentence which will deprive an offender of the prospect of rehabilitation”: at [28]. His Honour was clearly concerned that a sentence requiring the immediate service of full-time detention carried with it “the very real danger of allowing this offender to become enmeshed in the criminal population and for his future to be guided by that association”: at [44]. The sentences imposed were the result of the discretionary decision as to how to resolve the competing sentencing considerations.
The sentences imposed by his Honour were, by reason of their suspension, undoubtedly lenient ones. They reflected the leniency inevitably involved in granting to the respondent the opportunity to avoid serving the custodial sentence imposed so long as he remained of good behaviour. The fact that the members of an appellate court may have imposed more severe sentences does not, of itself, demonstrate that the sentence imposed by a lower court is manifestly inadequate. Notwithstanding the submissions by the appellant, the Court has not reached the conclusion that the sentence imposed by the sentencing judge was manifestly inadequate. Therefore the appeal must be dismissed.
The order of the Court is: The appeal is dismissed.
| I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 30 July 2018 |
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