R v Jones
[2019] ACTSC 124
•13 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jones |
Citation: | [2019] ACTSC 124 |
Hearing Date: | 13 May 2019 |
DecisionDate: | 13 May 2019 |
Before: | Murrell CJ |
Decision: | Offender sentenced to a total period of 4 years and 6 months’ imprisonment, with a non-parole period of 27 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Maintaining a sexual relationship with a young person – Assault occasioning actual bodily harm – Attempt to pervert the course of justice |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 56(1) Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 35A Criminal Code 2002 (ACT) s 713 |
Cases Cited: | R v Degioannis [2019] ACTSC 47 R v DU [2018] ACTSC 281 R v SAG [2004] QCA 286; 147 A Crim R 301 |
Parties: | The Queen (Crown) Jack Matthew Jones (Offender) |
Representation: | Counsel Ms S Janackovic (Crown) Mr S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 267 of 2018; SCC 268 of 2018; SCC 269 of 2018; SCC 270 of 2018 |
Murrell CJ
The offences
The offender is to be sentenced for the following offences:
(a)Offence 1: Between 11 December 2017 and 10 May 2018, maintain a sexual relationship with a child contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act), an offence carrying a maximum penalty of 25 years’ imprisonment.
(b)Offences 2 and 3: Between 29 March 2018 and 3 April 2018/ 3 April 2018 and 22 April 2018, assault occasioning actual bodily harm contrary to s 24 of the Crimes Act. These offences carry a maximum penalty of 5 years’ imprisonment.
(c)Offence 4: Between 8 May 2018 and 29 May 2018, attempt to pervert the course of justice contrary to s 713 of the Criminal Code 2002 (ACT), an offence carrying a maximum penalty of 7 years’ imprisonment, a fine of $105,000, or both.
In addition, the Court is asked to deal with the transferred offence that, on 10 May 2018, the offender committed common assault contrary to s 26 of the Crimes Act, an offence carrying a maximum penalty of 2 years’ imprisonment.
The offender was arrested on 15 May 2018 and has been in custody since that date.
In relation to the first offence, the offender entered a plea of guilty at the earliest reasonable opportunity in the Magistrates Court. The first offence replaced other charges to which the offender had pleaded guilty. The Crown case was strong, largely because of substantial admissions made by the offender. The appropriate discount under s 35 (and/or s 35A) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is 25 per cent.
In relation to the remaining three principal offences, the current charges were offered, and pleas of guilty were entered, in the Supreme Court following a criminal case conference, which lead to other charges being abandoned. In those circumstances, the appropriate discount for the pleas is in the range of 15 to 20 per cent.
In relation to the transferred offence, the offender had entered a plea of not guilty but changed his plea in the Magistrates Court after the provision of the brief of evidence. In those circumstances, the appropriate discount is about 15 per cent.
Facts of the offences
Count 1 – Maintain a sexual relationship with a young person
All offences involve one victim, C. At the time of the offences, the offender was 25 years old and C was 15 years of age.
In October 2017, the offender met C through C’s much older “boyfriend”, to whom the offender supplied methylamphetamine, and with whom C was living. On subsequent occasions, the offender and C met in a similar context.
On 8 December 2017, C left her “boyfriend”, alleging abuse by him.
On 12 December 2017, C asked the offender to collect her in his car and he did so. The pair smoked methylamphetamine together. Shortly after, and while they were drug-affected, they engaged in unprotected penile/vaginal intercourse.
Over the next three days, the offender drove C around Canberra and they smoked methylamphetamine together.
On 16 December 2017, the offender messaged C, professing that he was attracted to and aroused by her. From 16 December 2017, the offender and C considered themselves to be in a “relationship”. The “relationship” involved frequent drug use (the drugs were supplied by the offender) and frequent sexual activity, including frequent penile/vaginal sexual intercourse. As C resided largely with her mother and the offender resided with his parents, much of the sexual relationship was conducted in the offender’s car and at places other than the homes of C and the offender.
From very early in the “relationship”, the offender knew C’s age. He referred to her age as being problematic in several communications with her. On one occasion, he acknowledged that the sexual relationship was “wrong” and that he was “getting in the way of” her childhood/adolescence. However, he considered that he “loved” her. The offender was warned by an acquaintance that he should not engage in sexual activity with a minor.
During the “relationship”, the offender learned that C had been sexually assaulted when she was much younger.
In the course of the “relationship”, the offender took sexual photos and videos of C. On one occasion, when the offender realised that C had sent a picture of the offender’s erect penis from his phone to her phone, he asked her to delete the photo, noting that “it’s illegal to send explicit images to a minor”.
On 22 April 2018, C used a home pregnancy test that returned a positive result, which was later confirmed. When she told the offender of her pregnancy, his response was “we gonna be a family”. The pair then engaged in sexual intercourse at C’s home.
The offender last had sex with C in the first week of May 2018, when they had unprotected penile/vaginal intercourse in C’s bedroom. C told him to stop as he was hurting her, and he did so.
Offence 2 – Assault occasioning actual bodily harm
Between 29 March 2018 and 3 April 2018 (during the Easter break), the offender and C had an argument while they were in his car. The offender struck C in the face several times with his hand, causing pain and bleeding from her mouth. Later during the same incident, the offender continued his assault, causing C to suffer a black eye.
On 3 April 2018, he apologised via Facebook Messenger.
Offence 3 – Assault occasioning actual bodily harm
Between 3 and 22 April 2018, when the offender and C were sitting in his parked car and were under the influence of methylamphetamine, they began to argue. The offender demanded the name of a previous sexual partner of C. He then hit C in the mouth and the face (causing a swollen lip and bruising to her face) and struck C in the abdomen. He refused to take her home until she provided the name of her previous partner.
When C arrived home, her mother questioned her. C began to cry and said that the offender had hit her in the face.
Transfer Offence – Common assault
On 9 May 2018, police attended C’s home, seeking the offender. He refused to leave. C’s mother told the police that C was pregnant to the offender. C said that the offender had threatened her that, if she refused to get an abortion, he would make sure that there was no baby.
At about 7:20 PM on 10 May 2018, the offender attended C’s home to retrieve some of his belongings. C approached the driver’s side of the offender’s car with a medallion that belonged to the offender and threw it into the car. While seated in the driver’s seat, the offender reached out and struck C with the backhand of a closed fist to her lower abdomen, causing C to buckle forward. The offender then reversed out of the driveway and left.
On 11 May 2018, C participated in an evidence-in-chief interview with police.
On 15 May 2018, the offender was arrested. Later that day, he made substantial admissions to the police, although he denied the assaults.
Offence 4 – Attempt to pervert the course of justice
On 9 May 2018, before the offender was arrested and after hearing that C had spoken to police, the offender messaged her on Facebook, offering his car if C would “just say [she doesn’t] know who the father is”.
On 18 May 2018, while in custody, the offender told his father that he proposed to tell C to “change the whole thing” and say that “it was consensual”, because “that’s the only thing that’s gonna fuck me here”. On 21 May 2018, the offender asked his father to get C’s phone number so that he could speak to her. On 22 May 2018, the offender provided his Facebook account password to his father, who made Facebook contact with C and obtained her phone number. On 26 May 2018, the offender called C, asking her to not come to court “ever”. She agreed.
On 27 May 2018, the offender told C that he was going to plead not guilty. C said that she would not attend court and the offender responded, “Yeah good. You fucking … you stick to your word, but, all right? Don’t fucking let me down”.
On 28 May 2018, the offender confirmed with C that he had yet to enter a plea, and that C had told the prosecutors that she would not give evidence. C confirmed that she would not give evidence but expressed some uncertainty. The offender reiterated that she should not give evidence.
Objective seriousness
In relation to the assessment of the objective seriousness of the principal offence of maintaining a sexual relationship with a child, I was referred to a number of cases, including R v SAG [2004] QCA 286; 147 A Crim R 301, R v DU [2018] ACTSC 281, R v KN (No 2) [2019] ACTSC 5 and R v Degioannis [2019] ACTSC 47.
The victim’s lack of opposition to the sexual activity is not a mitigating factor; by virtue of age, any child lacks the capacity to give real consent. Further, it is presumed that a relationship between an adult and a child causes significant harm to the child: R v Horton-Hegarty [2018] ACTCA 22 at [46].
In this case, the offence was committed four days after C had sought the offender's help in relation to leaving an abusive relationship. It is not correct to describe the relationship between the offender and C as predatory but, rather, as opportunistic. It involved the offender taking advantage of C's youth and other vulnerabilities to institute and maintain a highly inappropriate relationship, albeit one that, on the offender’s part, involved genuine fondness for C and, at times, demonstrated concern that the relationship was not in her best interests.
C was a 15-year-old school girl; her age was towards the upper end of the range for offences under s 56 of the Crimes Act. Nevertheless, to the offender's knowledge, C was particularly vulnerable because she had just extracted herself from an abusive relationship with a much older man, and had previously been sexually abused by a family acquaintance.
The fact that the relationship lead to pregnancy is a very serious matter, aggravating the objective seriousness of the offence. For that reason alone, the offence will have life-long consequences for C.
The ten-year age difference between the offender and C was considerable. Throughout the relationship, the offender knew of C’s age and also knew that the relationship was both morally wrong and illegal.
The objective seriousness of the sexual relationship is aggravated by the fact that both the relationship generally and the sexual aspect of the relationship in particular were associated with the supply of drugs by the offender to C. While it cannot be said that the drugs were supplied for the purpose of securing sexual intercourse, no doubt they impacted on C’s capacity to make decisions about what was occurring.
The period of the relationship was substantial; it continued over five months. It would appear that it was not the offender’s decision to terminate the relationship.
An offence of this type may be constituted by only two sexual acts, and the acts may be of various types. In this case, the relationship involved many acts of a very serious nature: sexual intercourse, including many incidents of penile-vaginal intercourse.
On occasions, the intercourse occurred at C’s family home, in her bedroom, a place where she should have been safe from any form of exploitation.
The offences of violence are serious because they were committed against a child in relation to whom the offender was in a position of trust insofar as, at relevant times, he was the adult with immediate responsibility for her.
In addition, the offences of assault occasioning actual bodily harm occurred in a domestic violence context. At the time of the offences, the victim was confined to the offender’s car, affording him additional power over her.
Fortunately, the offences of assault occasioning actual bodily harm were not closely associated with the sexual aspects of the relationship. For example, there is no suggestion that force was used to secure sexual compliance.
The offence of common assault is objectively serious: it involved a forceful blow delivered to the lower abdomen that was sufficient to cause C to buckle forward and it occurred at a time when, to the offender’s knowledge, the victim was pregnant.
The offence of attempting to pervert the course of justice is of lower objective seriousness. While it involved several interactions and an attempt to influence a young person, it did not involve the delivery of any serious threat and was unlikely to have overborne the victim given that the relationship was over and the offender was incarcerated at the time of most aspects of the attempt. Further, it was unlikely to have had a significant impact on the administration of justice as, at the time of most aspects of the attempt, C had already given her evidence-in-chief interview.
Subjective circumstances
As stated above, the offender was 25 years old at the time of the offences.
As an adult, the offender has numerous convictions for motor vehicle offences (including for driving with licence suspended and while unlicensed, aggravated dangerous driving, drink-driving). More significantly, he has convictions for common assault (April 2016, sentenced to 4 months’ imprisonment from 2 April 2016), damaging property, failing to appear, and possession of a prohibited drug. Prior to the commission of these offences, the longest period he has spent in custody was six months (from April to October 2016).
At one stage, he was supervised under good behaviour orders, but his compliance was only satisfactory. In 2015, he failed to comply with a community service order.
The offender is one of five children. His siblings have responsible positions and none has had significant contact with the criminal law. He has a good relationship with his siblings and parents.
As well as the child of the relationship with the victim (born in January 2019), the offender has two children, currently aged six and seven years. They are the product of a relationship between the offender and a much older woman. The offender commenced this relationship when he was 15 years old and the woman was around 23 years old. The children are both autistic and one is severely autistic. They reside in foster care in Queensland. There is no evidence of the impact of this relationship on the offender, although it has been suggested that such a relationship may have somewhat normalised relationships such as that the subject of the principle offence before this court.
The offender struggled at school with learning difficulties. He completed Year 5 and, thereafter, his attendance was sporadic until Year 8, when he left school.
The offender has an excellent employment history, except for the three-month period prior to his arrest, when the offender was unemployable because of heavy drug use.
From 13 years of age, the offender used cannabis. From 16 years of age, he used methylamphetamine. When he was 24 years old, he began to use large quantities of methylamphetamine. At that time, he was very stressed because of problems in a relationship with the older woman and the stress of his children’s autism. In the period leading up to the offences, he reportedly used $1,000 worth of methamphetamines per week. While in custody, the offender has undertaken to short substance abuse programs, which he has found to be useful.
In custody, the offender has undertaken a large number of courses designed to make him ready for employment in a variety of fields. He has spent many days learning subjects such as landscaping, business practice, and communication. He has embarked upon a tertiary preparation program through the University of Southern Queensland and is considered capable of completing tertiary studies. A report described his keen interest in, and positive attitude towards, education and the support that he has provided to other students within AMC.
The offender has shown insight into his offending conduct, nominating drug use as an important factor. On the other hand, it would appear that he still attributes some responsibility to the victim, failing to appreciate that, as the adult, he was completely responsible for events. The offender’s father provided a letter in which he stated that the offender was remorseful and aware of the hurt that he had caused to the victim.
The offender has applied to attend a domestic violence intervention program within AMC.
The authors of the pre-sentence report assessed the offender as at moderate to high risk of sexual re-offending, but conditioned that assessment by noting that the assessment tool does not take into account dynamic risk factors, attitudinal factors or thought processes. They recommended that he be assessed for the Adult Sex Offender Program.
While many sexual offenders may be at moderate to high risk of re-offending, the particular circumstances of this offence do not necessarily indicate that the offender has a moderate to high risk of recidivism. The offence occurred in the context of an open and continuing relationship between the offender and the victim.
On the other hand, the offender admitted that he was sexually attracted to the child victim, which is a matter of concern for the future. As the Crown noted, protective factors such as a strong employment history and strong family support were present at the time of the offences but did not prevent them from occurring.
At the time of the offences, the offender was on a rapid downhill spiral with substance abuse, and the offending occurred in that context. I consider that, if the offender receives appropriate substance abuse and related treatment, with his strong employment history and family support, there is every prospect of rehabilitation. It may be that the offender also requires counselling in relation to his first relationship that produced the children who reside in Queensland. Issues associated with that relationship may bear addressing.
Upon his release, the offender will reside with his family, where he will have the support of his parents. He will also enjoy the support of three siblings who reside in Canberra and members of his extended family.
Other sentencing considerations
The Court is required to take into account the matters referred to in s 33 of the Sentencing Act insofar as they are known and relevant. The most relevant features have been taken into account; they are referred to above.
Sentencing purposes of general deterrence, accountability, denunciation, and recognition of harm to the victim are of high importance. General deterrence is of paramount importance in sentencing for sexual offences against children.
As explained above at [59], rehabilitation is also an important sentencing purpose in this case.
The parties accept—and I agree—that the only appropriate sentence for the principal offence is one of imprisonment. However, given the offender’s reasonably good prospects of rehabilitation and the fact that this is the first time that he has received a significant sentence of imprisonment, I will impose a short – 50 per cent – non-parole period.
Sentences
The offender is convicted for all charges. I impose the following sentences:
(a)Offence 1—Maintaining a sexual relationship with a young person—40 months’ imprisonment (reduced from 54 months) from 15 July 2019 to 14 November 2022;
(b)Offence 2—Assault occasioning actual bodily harm—10 months’ imprisonment (reduced from 12 months) from 15 August 2018 to 14 June 2019;
(c)Offence 3—Assault occasioning actual bodily harm—10 months’ imprisonment (reduced from 12 months) from 15 October 2018 to 14 August 2019;
(d)Offence 4—Attempt to pervert the course of justice—10 months’ imprisonment (reduced from 12 months) from 15 December 2018 to 14 October 2019;
(e)Transfer offence—Common assault—6 months’ imprisonment (reduced from 8 months) from 15 May 2018 to 14 November 2018.
The total sentence is 4 years and 6 months’ imprisonment, from 15 May 2018 to 14 November 2022.
I set a non-parole period of 27 months, expiring on 14 August 2020.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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