R v Kamara
[2016] ACTSC 294
•5 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kamara |
Citation: | [2016] ACTSC 294 |
Hearing Date: | 5 October 2016 |
DecisionDate: | 5 October 2016 |
Before: | Elkaim J |
Decision: | See paragraph [48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure sexual activity with a person under 16 – sexual intercourse with a young person under 16 – possessing child pornography – pleas of guilty |
Legislation Cited: | Crimes Act 1990 (ACT), ss 55(2), 65 Crimes Act 1914 (Cth), s 16A, s20(1)(b) Sexual Offences Act 2012 (SL), s 4 |
Cases Cited: | Clarkson v The Queen [2011] VSCA 157; 32 VR 361 Islam v The Queen [2006] ACTCA 21 R v Major [2016] ACTSC 161 |
Parties: | The Queen (Crown) Mr Ibrahim Kamara (Offender) |
Representation: | Counsel Mr K Lee (Crown) Mr J O’Keefe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) John O’Keefe Lawyers (Offender) | |
File Number: | SCC 23 of 2016 |
Publication Restriction: | The complainant’s name is suppressed. |
ELKAIM J:
Introduction
On 21 July 2016 the offender was arraigned on an indictment that had been filed on 16 March 2016. He pleaded guilty to five counts. They were:
(a)One count of using a carriage service to procure sexual activity with a person under 16 years of age. This is a Commonwealth offence under s 474.26 of the Criminal Code Act 1995 (Cth). It carries a maximum term of imprisonment of 15 years.
(b)Three counts of sexual intercourse with a young person under the age of 16. This is a Territory offence contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty for each offence is 14 years imprisonment.
(c)One count of possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT). The maximum penalty is 7 years imprisonment or 700 penalty units or both.
The offender had been charged with the offences, plus one other, on 10 October 2015. A further charge was added on 13 November 2015. On 3 December 2015 he pleaded not guilty to all charges. He was committed for trial in the ACT Supreme Court on 11 February 2016.
On 23 May 2016 a trial was set down to commence on 29 August 2016. There was to be a pre-trial hearing on 26 July 2016. Following discussions between the parties, on 30 June 2016, the Crown agreed to accept pleas of guilty to the above counts in full satisfaction of the indictment. As stated above the pleas were recorded on 21 July 2016.
The facts behind the offences
In relation to the carriage offence, in September 2014 the offender added a 15 year old girl (the complainant) as a friend on Facebook and began communicating with her. They had not met previously. Through Facebook the offender enquired of the complainant’s age. She replied that she was 15. The offender said that he was 18 although in fact he was almost 20.
A few days later, in early October, the offender asked the complainant if she was sleeping with anyone. She replied that she was a virgin. The offender again asked her age. Again she replied, 15. The offender asked for her mobile number which she gave him and he gave his number to her. They began to communicate via telephone.
Sometime later, the complainant blocked the offender on Facebook and stopped communication. She had a boyfriend. However that relationship ended and the communications with the offender resumed.
At the end of June, the offender asked the complainant to send a picture of herself to him. The following month they exchanged text messages during which the offender told the complainant that he loved her and wished to meet her. They agreed to meet on 18 July 2015.
In the course of text messaging the complainant repeated that she was a virgin and said that she had given her former boyfriend a “a blowjob”. They agreed to meet on 18 July 2015. They also continued to communicate using different social media applications.
Before the meeting on 18 July 2015, the offender continued to suggest sexual activity between him and the complainant. She continued to resist the idea of sexual intercourse, because she was a virgin. There were also requests for “sexy” photographs.
There were a number of messages with sexual content dominated by the offender suggesting sexual activity. At one stage, the complainant sent the offender a video with sexual content. On 14 July 2015 the offender and the complainant, using an IMO application, which allows the participants to see each other in real time, masturbated while talking to each other.
The offender and the complainant continued to exchange messages and videos with sexual content. On 16 July 2015 the offender made specific requests of the complainant preparatory to their forthcoming intended meeting. These included the obtaining of condoms.
The communications between the offender and the complainant between 21 June 2015 and 18 July 2015 make up the carriage offence.
On 18 July 2015 the offender and the complainant met at Gungahlin Marketplace. They went to the offender’s home and into his bedroom. She had brought the condom as requested.
The complainant then performed oral sex on the offender. This is the first sexual intercourse count.
A little later the offender began to remove the complainant’s pants. After some discussion, consensual intercourse took place. The offender wore a condom. This is the second sexual intercourse count.
The third sexual intercourse count occurred about 20 minutes later when the offender and the complainant had sexual intercourse again. Once more, the offender used a condom. On both occasions he applied lubricant.
On 9 August 2015 the complainant disclosed the sexual intercourse to her father. She reported the matter to the police three days later.
On 14 August 2015 the police executed a search warrant. They seized an iPhone, a USB stick and a computer.
The telephone contained 67 images of the complainant either naked or in underwear, but all in sexual poses, and also 23 videos of the complainant again showing sexual poses and also masturbation. The images were classified as falling within categories 1 and 2 of the CETS classification scale. The images and videos make up the possess child pornography count.
During a record of interview with police on 9 October 2015 the offender said the complainant had told him she was 17 years of age. He said that the pictures had not been solicited. He said he did not know that the age of consent in Australia was 16. Despite this he had enquired on a number of occasions about the complainant’s age. He added that in his home country, Sierra Leone, there was no age of consent. He said he did not know that sexually explicit images of people under 18 years of age was considered as child pornography.
I do not accept the offender was unaware of the relevance of the complainant being underage and I am concerned about his apparent continuing lack of acceptance of his responsibilities towards the complainant (as suggested in the Pre-Sentence Report).
The offender’s background
The offender was born in 1995 in Sierra Leone. This is a country in West Africa which, like many other countries in that continent, has been plagued by tribal violence.
When the offender was eight years of age, his parents were murdered by rebels. His uncle saved him and his sister by escaping through the fields behind their village. The offender and his sister were raised by a family friend. They were provided with a safe and stable environment until they came to Australia in 2013.
The offender is now 21 years of age. He lives with his older brother and younger sister in government accommodation. He managed to obtain the ACT Year 12 Certificate. He has been working as a cleaner with the same company for three years. His ambition is to commence an apprenticeship as a motor mechanic, beginning in November 2016.
The offender does not drink alcohol and does not take illicit drugs. He was a member of a sporting club with connections to residents of Sierra Leone. When the offences became known, he was effectively cast out of the club. He told the author of the Pre-Sentence Report that this distressed him and he felt extremely embarrassed and sad that his teammates have disregarded him and do not wish to be in his company.
The offender’s health is generally good, although he had an operation in May of this year to remove a growth from his chest. According to his brother, who spoke to the author of the Pre-Sentence Report, the offender has been depressed since being charged but he is not receiving any treatment. The author notes that the offender has not received any counselling arising from the death of his parents.
According to the Pre-Sentence Report the offender was “continuously trying to shift responsibility to the victim and claimed she frequently encouraged him to engage with her via mobile phone and on the day of the offences while taking no responsibility for his actions.”
The report makes this important observation:
“It is apparent there are significant cultural differences between Sierra Leone and Australia. Mr Kamara reported in Sierra Leone “girls have babies at 13; I didn’t know I was doing anything wrong, there is no age of consent in my country”. Nevertheless, Mr Kamara has been a resident of Australia for 3 years which suggests he would have some awareness of the repercussions of sexual involvement with a minor.”
This is confirmed by him telling the police that he thought the complainant was 17 years of age.
The Pre-Sentence Report assessed the offender as at a low risk of general reoffending. It notes his primary risk factors “appear to be his lack of parental role modelling, social awareness and social isolation resulting from the offences.” The report also notes, however, that on a standardised test his results indicated a medium to high risk level for sexual recidivism.
I think there is a degree of inconsistency in the Pre-Sentence Report between the opinion that there is a low risk of general reoffending but a medium to high risk for sexual recidivism. In my view, the risk in this case of repeat offending is low but nevertheless the results of the STATIC99 test must be taken into account. I will do this through conditions attached to the sentence that I will impose.
Consideration of sentence
As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.
Section 16A of the Crimes Act 1914 (Cth) sets out the matters to be taken into account in respect of the Commonwealth offence.
It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). I have had particular regard to these cases: R v CV [2013] ACTCA 22; A Crim R 67; R v AD [2014] ACTSC 222; R v Aniezue [2016] ACTSC 82; Islam v The Queen [2006] ACTCA 21; R v Major [2016] ACTSC 161.
In R v CV, the offender was dealt with at first instance without the recording of a conviction. This was challenged on appeal, but the appeal was dismissed. The offender here sought a similar order. The facts are very different and easily distinguishable from the present case. I can see no basis upon which this offender could be dealt with under s 17 of the Crimes (Sentencing) Act2005 (ACT).
I have found the sentencing exercise in this matter to be difficult. On the one hand, the offender has induced a young girl, underage, to participate in both sexual activity via social media and also sexual intercourse.
On the other hand, it is clear the complainant was a willing participant in all of the conduct. This is not, of course, any kind of excuse but it is a factor that I can take into account. In this regard, I have taken into account the comments in R v CV, quoting from Clarkson v The Queen [2011] VSCA 157; 32 VR 361, at paragraph 8:
In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.
In R v AD, the learned judge referred to the complainant in that case as not being a “sexually mature 15-year-old girl getting a bit ahead of her legal capacities”. In this matter the complainant did have sexual experience with another person before meeting the offender so that while I would not necessarily describe her as sexually mature she was not sexually immature. Of course, despite her previous experience, she was still a child and the Court must be very concerned to recognise that a 15-year-old girl can only give consent on the basis of her own life experience and without the benefit of broader experiences that come with age. There is good reason why the age of consent is 16.
In R v Major, Burns J set out the principles that are applicable in cases dealing with child pornography. In the present case it is relevant that the pornography was only of the one person, with whom the offender was endeavouring to have a relationship, and there was no dissemination to any third party. Although this generally places the offence at the lower end of the objective seriousness, a level of general deterrence must nevertheless be recognised.
Perhaps the most important factor in the offender’s favour, as far as sentencing is concerned, is his background. The civil violence in Sierra Leone not only claimed the offender’s parents but probably also prevented him developing a proper appreciation of the appropriate way to behave in regard to other young persons.
I note that the age of consent in Sierra Leone is 18, under s 4 of the Sexual Offences Act 2012 (SL). I am not sure of the position before 2012. I have no doubt however, that during times of civil unrest the particulars of the legislation were not well known. I also note that under the Criminal Procedure Act 1965 (SL) a “child” means a person under the age of 14 years.
The offender has attempted to make a reasonable start to his life in Australia, achieving the High School Certificate and having been in steady employment for three years. I am satisfied through the plea of guilty and the letter written by the offender that he does express remorse for his actions. As far as the plea is concerned, although it could have been at an earlier time, it is of significant utilitarian value especially in relieving the complainant of having to give evidence. I think a discount of 15% is appropriate.
Another area that requires specific comment is the offender’s Visa under which he resides in Australia (Exhibit C). It is clear from s 501 of the Migration Act 1958 (Cth) that orders I make could render the offender liable to deportation, or at least, in the first instance, the cancellation of his Visa. The offender submitted that I should take this fact into account. I think the possibility of deportation can be taken into account (R v Aniezue) but a sentence must not be crafted in order to avoid the migration legislation (Islam v The Queen at paragraph 35).
In one sense, all of the offences arise from the offender’s interactions with the complainant. Nevertheless the carriage offence did extend over a period of time, and it can be seen as preparatory to the commission of the remaining offences. Thus while I think the sentences for the sexual intercourse offences should be concurrent, I think there should be an element of accumulation in respect of the carriage offence. The pornography offence relates to the same material as the carriage offence so that I think these two offences should be treated with concurrent sentences.
I’ve come to the view that sentences of imprisonment are inevitable both to reflect the seriousness of the offences, in particular having regard to an underage complainant, and the need for deterrence. I think it very important to emphasise that simply because a complainant is almost 16 years of age that there should not necessarily be any different treatment in cases where the complainant is a little younger.
However because of the subjective factors I have outlined, I think the sentences should be suspended with immediate effect on conditions, however, relating to good behaviour and attending to such requirements as the Department of Corrective Services imposes.
In relation to the three charges of sexual intercourse, the term of imprisonment should be 12 months reduced by 15% for the plea of guilty. These terms are concurrent. The terms of imprisonment for the carriage offence and the pornography offence, are also to be served concurrently with each other. This should be 9 months again reduced by 15%. To achieve a degree of accumulation of the terms of imprisonment for the carriage and pornography offences, the sentence should extend for 3 months beyond the end of the terms of the sexual intercourse offences.
The good behaviour bonds should be for a period of 18 months with a security in the Commonwealth offence of $300.00 and the imposition of conditions in the remaining offences.
Orders
I make the following orders:
(i)Count 3 – In relation to the charge of sexual intercourse with a young person under 16 years of age, the offender is sentenced to a term of imprisonment of 10 months and 6 days, to commence on 5 October 2016 and end on 10 August 2017.
(ii)Count 4 – In relation to the charge of sexual intercourse with a young person under 16 years of age, the offender is sentenced to a term of imprisonment of 10 months and 6 days to commence on 5 October 2016 and end on 10 August 2017.
(iii)Count 5 – In relation to the charge of sexual intercourse with a young person under 16 years of age, the offender is sentenced to a term of imprisonment of 10 months and 6 days to commence on 5 October 2016 and end on 10 August 2017.
(iv)Count 1 – In relation to the charge of using a carriage service to procure sexual activity with a person under 16 years of age, the offender is sentenced to a term of imprisonment of 7 months and 20 days to commence on 22 March 2017 and end on 10 November 2017.
(v)Count 8 – In relation to the charge of possessing child pornography, the offender is sentenced to a term of imprisonment of 7 months and 20 days to commence on 22 March 2017 and end on 10 November 2017.
(vi)The overall sentence consists of a term of imprisonment of 1 year 1 month and 6 days. That sentence is to be fully suspended with immediate effect upon the offender entering into recognizance and good behaviour undertakings on the following terms:-
a.On the Commonwealth offence, the offender is to enter into a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) to commence from 22 March 2017 for a period of 18 months. He is to give security in the amount of $300.00.
b.On the Territory offences, the offender is to enter into a good behaviour order today and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT). That good behaviour order is subject to the following conditions:-
1.That for such period not exceeding 18 months as Corrective Services requires, he accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate; and
2.That he undertake such counselling, courses, programs or treatments as directed by his supervising officer, in particular, that he be assessed and if found suitable, he undertake the Adult Sex Offenders Program.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim Associate: V Wei Date: 5 October 2016 |
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