R v Me
[2017] ACTSC 402
•12 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v ME |
Citation: | [2017] ACTSC 402 |
Hearing Date: | 12 December 2017 |
DecisionDate: | 12 December 2017 |
Before: | Burns J |
Decision: | See [20] - [21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Young offender – serious offending – promoting rehabilitation of young offenders |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 13, 17, 133C, 133D |
Parties: | The Queen (Crown) ME (Offender) |
Representation: | Counsel Ms S Saikal-Skea (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 25 of 2017, SCC 27 of 2017 |
Burns J:
As is often the case when sentencing a young person, this case presents certain difficulties. The difficulty is that I am dealing with a young person who is now 17 but was 15 years old at the time of the offending. On the material before me, he was an immature young man who had problems with regard to body image, bullying at school and social relationships.
He is apparently, on the evidence which has been put before me, otherwise essentially a worthwhile young man, but the conundrum is that he has engaged in damaging and hurtful behaviour towards a young lady and which has had a continuing and deleterious impact upon her. I am therefore in a situation where I must sentence a young man who is otherwise apparently of good character, who is industrious and who has plans for the future which would make him a useful member of the community, but I must sentence him with respect to serious offences.
It will be obvious based upon that opening that those two circumstances pull in entirely different directions. The nature of the offences would suggest the need to impose some form of significant punishment with respect to these offences, because they are serious offences. All sexual offending is serious, and it is particularly so when it involves a person of the age of the present complainant. On the other hand, I have a young man who has taken considerable steps to rehabilitate himself since having committed these offences.
In particular, he has participated in counselling with psychologists to address those issues which were impacting upon his life at the time of these offences. I take into account, without repeating now, the contents of the Pre‑Sentence Report and also the Psychologist's Report which has been put before me. ME has been assessed as being at low risk of reoffending. I have little doubt that there is little risk of him reoffending in this way in the future. I have no doubt that this has been a painful experience for him and also for his family, just as it has been a painful experience for the victim and also for her family.
I accept that ME has demonstrated considerable remorse for his actions, in addition to which I accept that his pleas of guilty with respect to these charges not only evidence remorse but also have had a significant utilitarian value. Amongst other things it means that the complainant has not been required to give evidence about these events, which is a significant matter.
Sentencing Juvenile Offenders
Our community, through its Legislative Assembly, has long recognised that sentencing juvenile offenders involves different considerations to sentencing adult offenders. In that regard, the provisions of the Crimes (Sentencing) Act 2005 (ACT) (‘the Act’) require me to take into account different considerations when sentencing a young offender such as ME.
Section 133C of the Act provides that, despite the other provisions of that Act which in particular deal with sentencing adult offenders, in sentencing a young offender I must consider the purpose of promoting the rehabilitation of the young offender and I may give more weight to that purpose than I give to any of the other purposes which would be relevant in sentencing an adult.
Also, in sentencing a young offender I am obliged to have particular regard to the common law principle of individualised justice. Section 133D of the Act also provides that in deciding how a young offender should be sentenced for an offence I must consider a number of matters, including the young offender's culpability for the offence having regard to his or her maturity, the young offender's state of development and the past and present family circumstances of the young offender.
The offender's culpability with respect to these offences cannot be said to be low. I accept that these offences grew out of a desire by ME to have a relationship as boyfriend and girlfriend with the complainant. However, as I said in argument with the Crown, it must have been clear from very early in the piece that the complainant was not interested in engaging in a relationship with ME. ME nevertheless pressed on, I suspect in the hope that he would be able to convince her of the fact that she should engage in such a relationship with him.
I am to gauge, however, ME’s culpability having regard to his maturity, and I am satisfied at the time of this offence that he was quite immature and, in particular, that he was immature in relation to how to go about attempting to engage in any sort of romantic relationship with a young woman. Therefore, in determining ME’s culpability for these offences, I do have regard to the fact that ME was a socially immature young man.
At 15 years of age one cannot say that ME was so old or of such maturity that his state of development was such that he should not be the subject of some leniency with respect to determining the state of his culpability, with respect to these offences. There is nothing to suggest that ME’s state of development was anything other than a normal 15 year old. But a normal 15 year old male is often very immature, as indeed I am satisfied ME was. I note that the offender’s family circumstances are that he has a very loving and close family and that he has significant continuing ongoing family support.
The submission has been made by the offender’s counsel that I should deal with these matters, despite their seriousness, by means of the imposition of a Non‑Conviction Order. That would be an order pursuant to s 17 of the Act. Section 17 relevantly provides that without convicting an offender, a court may make an order imposing a Good Behaviour Order under s 13 of the Act. Of course, such a Good Behaviour Order is by definition without the imposition of a conviction.
Section 17(3) of the Act provides that in deciding whether to make a Non‑Conviction Order I must consider the following matters: the offender's character, antecedents, age, health and mental condition; the seriousness of the offence; and any extenuating circumstances in which the offence was committed. Section 17(4) provides that the Court may also consider anything else the Court considers relevant.
I am satisfied by the material which has been put before me that in the period prior to the commission of these offences and also subsequent to these offences that ME has been a person of good character. I am satisfied that these offences are out of character for him. The offender has no previous convictions which, of course, is a matter which weighs significantly in his favour. The offender’s age at the time was 15 years and, of course, he was still, as I have already indicated, very immature. There appears to have been nothing significantly about the offender’s health and mental condition at the time which would be relevant to the imposition of a Non‑Conviction Order.
The Crown has submitted that I should not make such an order because of the seriousness of the offences. I accept, and in particular with respect to count 10 (CC 16/00690 – unlawful confinement), that these were serious offences, which if they had been committed by an adult would not justify the imposition of a Non‑Conviction Order. I am, however, entitled to take into account, as I have said, the offender’s age and level of maturity at the time that the offences were committed. There were no extenuating circumstances as far as I can see with respect to the commission of these offences, which would justify a Non‑Conviction Order.
As I said at the outset, I am obliged to weigh up the different considerations in determining the appropriate outcome of these proceedings. I am obliged to weigh against the nature of the offences, the desirability of encouraging the offender to continue with rehabilitation and to ultimately become a useful member of the community.
[Speaking directly to offender]
ME, I accept that you are remorseful with respect to what has happened. I have no doubt that you have thought about what you did on these occasions during the period since this has occurred until you have appeared before me today. You have had plenty of time to think about it, and based upon the material that has been put before me it appears that you have taken the opportunity to consider what you did. You certainly recognise that what you did was wrong.
The complainant, of course, was only 13 years of age, and your acts placed an unfair burden of guilt, shame and anxiety on her with respect to these events. It continues to have an impact upon her life. As I said, that is one thing that I have to weigh up.
The imposition of a Non‑Conviction Order with respect to these matters would not, in my opinion, be an indication that these offences are not considered to be serious offences. I consider that they are serious. Rather, it would be a finding that, having weighed all of the competing circumstances, the appropriate outcome is to give you an opportunity to continue in your rehabilitation. However, a Non-Conviction Order operates such that if there is any further offending, particularly during the period of any Good Behaviour Order, convictions can and will be imposed. Also, if you commit further offences in the future, whatever court you come before will be told that you had the benefit of Non‑Conviction Orders with respect to these serious offences and that you did not make the most of that opportunity that was given to you. You may fully expect that you will not receive the same opportunity twice.
Sentence
Whilst I find each of the offences proved, without proceeding to conviction there will be a Good Behaviour Order in each matter for a period of three years. Despite the recommendations of the Pre‑Sentence Report, I will impose a condition of the Good Behaviour Orders that you be subject to supervision by ACT Youth Justice or its delegate for that period of three years, or such lesser period as deemed appropriate by your supervising officer, and that you obey all reasonable directions of each such person, including directions to undertake appropriate counselling. I would recommend that Youth Justice direct you to continue with the counselling that you are currently undertaking.
What that means is that I have not recorded convictions against you, but you will be obliged to enter into a Good Behaviour Order for a period of three years. That Good Behaviour Order may be transferred to Queensland so that you will be subject to supervision by the authorities in Queensland. If you don't comply with the directions that are given to you, then you will be brought back before the Court to be dealt with on a breach of these orders, at which time convictions and other penalties may be imposed.
As I've already told you, a record will be kept of the fact I've given you this opportunity, and if you commit further offences then the Court that you come before will be told that you were given this opportunity not to have convictions recorded against you and you may fully expect you will not receive the same opportunity twice.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns Associate: Karina Curry-Hyde Date: 13 February 2018 |
4
0
1