R v Page
[2022] ACTCA 65
•23 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Page |
Citation: | [2022] ACTCA 65 |
Hearing Date: | 16 May 2022 |
DecisionDate: | 23 November 2022 |
Before: | Mossop, Loukas-Karlsson and Rangiah JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – maintaining a sexual relationship with a young person – whether two years’ imprisonment wholly suspended was manifestly inadequate as to length and suspension – where sentencing judge impermissibly took into account “genuine affection” between victim and offender in mitigation of the sentence – consideration of objective serious and harm to victim where relationship resulted in pregnancy – sentence found to be manifestly inadequate – consideration of residual discretion – residual discretion exercised by majority – appeal dismissed. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 56, 64 |
Cases Cited: | Clarkson v R [2011] VSCA 157; 32 VR 361 CMB v Attorney-General (NSW) (2015) 256 CLR 346 R v Sirl (No 4) [2020] ACTSC 23 R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 Samani v The Queen [2017] ACTCA 23 |
Parties: | The Queen (Appellant) Darcy Edward Page (Offender) |
Representation: | Counsel Mr S Drumgold SC (Appellant) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Tim Sharman Solicitors (Offender) | |
File Number: | ACTCA 42 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Justice Burns Date of Decision: 30 August 2021 Case Title: R v Page Citation: [2021] ACTSC 207 |
MOSSOP J:
I have had the benefit of reading in draft the reasons of Loukas-Karlsson and Rangiah JJ. I agree with their Honours’ reasons except in two respects. The first does not cause me to differ from the conclusion reached by their Honours but the second does.
Paragraph 23
The first area of disagreement relates to [23] of the primary judge’s reasons. That is the paragraph in which the primary judge found on the balance of probabilities that the offender had “a degree of genuine affection for the victim and she also had a degree of affection for [him]”. In relation to this paragraph, Loukas-Karlsson and Rangiah JJ, while accepting that the interpretation of the paragraph is not free from doubt, understand it as referring to “genuine affection” in order to conclude that the aggravating feature alleged by the Crown of the offender preying upon the victim’s vulnerability was not established. I cannot read the paragraph in that way. The reference by his Honour to being “satisfied on the balance of probabilities that you had a degree of genuine affection for the victim …” indicates that his Honour was making a finding relevant to mitigation (which the offender was required to prove on the balance of probabilities) rather than refusing to make a finding of an aggravating factor (which the Crown was required to prove beyond reasonable doubt): R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]. As a result, I conclude that the error detected by Loukas‑Karlsson and Rangiah JJ in [25] of the primary judge’s reasons is also present in [23]. Given that their Honours found the error at [25] and that the error contributed to the primary judge imposing a lesser sentence than would otherwise have been considered appropriate, my difference of opinion in relation to the interpretation of [23] of the primary judge’s reasons does not mean that I differ from Loukas-Karlsson and Rangiah JJ’s conclusion that the sentence was manifestly inadequate. I agree with their Honours’ conclusion that the sentence was manifestly inadequate.
Residual discretion
The second area of disagreement is that I do not agree that, in this case, the residual discretion should be exercised to dismiss the appeal. I accept that (as at the date of the hearing of the appeal) the offender had completed 172 hours out of the 300 hours of community service required to be performed pursuant to the primary judge’s sentence. However, that does not provide a sufficient basis upon which to decline to intervene in this case. Rather it is a matter which can be taken into account in determining how the offender is to be resentenced.
As pointed out by Loukas-Karlsson and Rangiah JJ, the sentence was manifestly inadequate because it failed to reflect the seriousness of the offence or the gravity of the consequences for the victim. The fourth, and in my view most significant, factor referred to by their Honours is that the victim of the offending suffered the life changing consequence of the offending in that she became pregnant and gave birth at the age of 16.
The fact that the offender has performed more than half of the community service hours required to be performed pursuant to the primary judge’s sentence is clearly a matter in his favour. However, it is not a matter sufficient to warrant the exercise of the residual discretion to dismiss the appeal.
As explained in Everett v The Queen (1994) 181 CLR 295 at 300, Barwick CJ’s reference in Griffiths v The Queen (1977) 137 CLR 293 at 310 to Crown appeals being brought to establish some “matter of principle” encompasses appeals being brought to avoid manifest inadequacy of sentencing: see also Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [69]; CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [35]. Where manifest inadequacy of sentence is established, then to dismiss an appeal through the exercise of the residual discretion is to “perpetuate a manifest injustice”: Munda at [76]. If that is to be justified there must be some sound countervailing discretionary reason for doing so. Although the discretionary reasons for dismissal of prosecution appeals pursuant to the residual discretion are not closed, the commonly arising matters have been summarised as “delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown”: Director of Public Prosecutions v Karazisis [2010] VSCA 350; 31 VR 634; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [80]. The limiting purpose of a prosecution appeal against sentence may itself be a reason for declining to grant relief: Ralston at [96], [99].
In the present case there was no evidence directed to post-sentence rehabilitation. There was no evidence of further offending. The quantum of hours of community service that had been performed was an agreed fact. In my view, the performance of community service would more appropriately be characterised as the respondent having served part of the sentence than evidence of his rehabilitation. While it was plainly a matter to be taken into account in a resentence it was not such as to warrant the exercise of residual discretion.
The fact that, after adjustment for completion of some of his community service, the ultimate period of imprisonment required to be served would be modest (of the order of six to nine months depending upon the starting point and the extent of the reduction for completion of community service), is not an appropriate reason to dismiss the appeal. It can be accepted that it is generally undesirable to impose short custodial sentences upon young persons, as the decisions referred to in the reasons given by Loukas‑Karlsson and Rangiah JJ make clear. However, in this case the head sentence was a significant one and the requirement to spend only a short period in full-time detention would reflect considerable leniency as a result of the respondent’s good subjective case. The period required to be served was not so short as to make the shortness of the period a significant consideration. Rather, the fundamental reason for the conclusion that the sentence was manifestly inadequate was the fact that it failed to adequately punish the respondent by imposing a period of full-time detention. It may be accepted that a period of imprisonment would not further the respondent’s rehabilitation, but it was necessary because punishment, denunciation, general deterrence and recognition of the harm done to the victim were significant purposes of sentencing which were inadequately reflected in the original sentencing decision.
Resentencing a person whose sentence has been suspended so as to require a term of full-time detention be served is not an easy or attractive course. It can be accepted that even if a resentencing does not occur because of the exercise of the residual discretion, the purpose of a prosecution appeal may “be achieved to a very significant extent by a statement [by the appeal court] that the sentences imposed upon the [offender] were wrong and why they were wrong”: Green v The Queen [2011] HCA 49; 244 CLR 462 at [37] quoting R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]. However, where the original sentence is manifestly inadequate there must be a sound discretionary reason before an appeal court declines to intervene. That was not present here. Care must be taken not to expand the scope of the residual discretion by assuming that a mere identification of manifest inadequacy is sufficient to satisfy the purpose of prosecution sentence appeals. That would not give adequate weight to the unqualified statutory entitlement in the Territory of the prosecution to appeal from sentencing decisions.
I would therefore have resentenced the offender to a sentence of imprisonment of three years (reduced from three years and nine months on account of the plea of guilty) to be suspended after having served nine months’ imprisonment. The period required to be served prior to the suspension of the sentence reflects a reduction from 12 months’ imprisonment having regard to the partial completion of his community service obligations pursuant to the sentence imposed by the primary judge.
However, as this is a minority opinion, the order of the Court is set out in the judgment of Loukas-Karlsson and Rangiah JJ.
LOUKAS-KARLSSON and RANGIAH JJ:
On 25 May 2021, the respondent (the offender) pleaded guilty to one charge that, between 23 June 2018 and 24 February 2019, he maintained a sexual relationship with a young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act).
On 30 August 2021, the offender was sentenced to two years’ imprisonment, wholly suspended for two years upon entering into a good behaviour order for two years with conditions including that he complete 300 hours of community service within two years: R v Page [2021] ACTSC 207.
The Crown appeals against the sentence on the ground that it is manifestly inadequate, both as to the length of the term of imprisonment and its suspension.
The reasons of the sentencing judge
The sentencing judge’s reasons recount that the offender met the victim in May 2018 when he was 18 and she was 15 years old. They were neighbours and the offender was also friends with the victim’s brother.
After exchanging Facebook messages, the offender and the victim spent time privately together in which they talked, kissed and hugged in an intimate way. The offender became aware that the victim was 15 years old. On 15 June 2018, the offender’s 19th birthday, he asked the victim to be his girlfriend.
The offender commenced sexual activity with the victim on 24 June 2018, when he digitally penetrated her vagina with his fingers. The sexual activity progressed to penile/vaginal intercourse on 2 July 2018, when the victim was aged about 15 years and four months.
The offender’s sexual relationship with the victim continued until 23 February 2019, except for a period when they broke up between late August 2018 and October 2018. There were some 44 sexual acts, including 30 episodes of sexual intercourse. The sexual intercourse was often unprotected, and the victim became pregnant and gave birth to a child at the age of 16.
There was one factual matter in dispute before the sentencing judge. The Crown alleged that an aggravating factor was that the victim had made it clear she was not consenting in fact (as distinct from her inability to consent as a matter of law) to one particular act of sexual intercourse in November 2018. His Honour, having heard evidence from the victim upon that issue, found at [9]:
9.I find that I am unable to be satisfied to that high standard with regard to this circumstance of aggravation alleged by the Crown. The apparent willingness of the victim to engage in sexual activity with you does not mitigate your offence. Because of her age, the victim lacked the capacity to give real consent to engaging in sexual activity. If I were to be satisfied that you preyed upon the victim’s vulnerability because of her age, that would also be a circumstance calling for greater punishment. I am not so satisfied. The communications between you and the victim suggest that there was a degree of genuine affection between the two of you.
The sentencing judge considered the seriousness of the offence, finding at [11]-[14]:
11.In assessing the objective gravity of the present offence, I take into account that it encompasses some 30 episodes of sexual intercourse over a period of about nine months. You were aware throughout that period that the victim was only 15 years old. The offence also resulted in the victim becoming pregnant and having a child at a very young age.
12.While the age difference between yourself and the victim was not as large as is seen in some cases, it was a significant age difference. You were an adult, albeit a young adult, and the victim was still very much a child. It is also clear that the victim now regrets her relationship with you and blames you for her ongoing psychological, emotional and physical problems. Although the victim had problems with anxiety and depression prior to this offence, I am satisfied that the relationship has had detrimental emotional and psychological effects upon her. The extent to which the relationship itself has aggravated the victim’s pre-existing psychological issues is problematic, but I do accept that there has been a degree of aggravation of her pre-existing conditions.
13.The evidence does not support the proposition that you knew of the victim’s psychological vulnerability until about halfway through the relationship. Even then the evidence does not enable me to make a finding that you knew of the extent of that vulnerability. The offence of maintaining a sexual relationship with a young person carries such a high maximum penalty because it encompasses a wide range of offending including, at one end of the spectrum, virtually daily offending over a period of years by a person in a position of trust. While this offence is nowhere near that category it is certainly not trivial.
14.I would assess this offence as being on the border of the low and mid-range of such offences. If it were not for your age at the time you committed this offence, I would assess your moral culpability as high. You knew the age of the victim and that what you were doing was both legally and morally wrong. Some degree of mitigation of your moral culpability is warranted because you were still a very young man at the time that you entered into this relationship with the victim, but your moral culpability remains significant.
The sentencing judge turned to consider the offender’s personal circumstances. At the time of sentencing, the offender was 22 years old. He had no previous criminal convictions.
His Honour accepted that the offender had a difficult childhood. His parents were too young to be able to adequately care for him and he was raised by his grandparents from the age of six months.
The sentencing judge noted that the offender had been in an intimate relationship with his current partner for approximately eight years, although they had separated for approximately one year, coinciding with the present offence. The offender had reconciled with his partner in early 2019, and he currently resided with her and their three young children, aged four, two and seven months. The offender described his relationship with his partner as very strong and supportive, and spoke of his children as being the most important aspect of his life.
The sentencing judge described the offender as having moved away from antisocial influences and now having pro-social friendships. Most of his time was spent at work or with his family.
The offender had abused alcohol and smoked cannabis in the past, but over the past two years had consumed alcohol only moderately and no longer smoked cannabis. He had completed his education to the end of year 12 and had obtained employment two years earlier in a business owned by his mother. He had since obtained full-time employment with a landscaping company.
The sentencing judge then proceeded to assess the appropriate sentence, finding at [22]-[25]:
22.You entered your plea of guilty to the present charge before a trial date was set. Your plea of guilty had significant utilitarian value and I am also satisfied that it demonstrates remorse on your part. I will reduce by approximately 20 per cent the otherwise appropriate sentence because of your plea of guilty.
23.The Crown submitted that I should impose a period of full-time imprisonment for this offence. I do not accept that proposition. Not all sexual relationships between a 19 year old male and a 15 year old female call for the imposition of a full-time period of imprisonment. I am satisfied on the balance of probabilities that you had a degree of genuine affection for the victim and she also had a degree of affection for you. She is now very bitter about the relationship and the way in which it ended so that caution must be exercised in assessing the evidence which the victim has given at this point in her life when she harbours such bitterness against you. I am not suggesting that she is not entitled to be bitter, but when one looks at the contemporaneous communications between the two of you, there is little to suggest manipulation or predatory conduct on your part. I may, of course, be wrong but I can only proceed on the evidence which is before me and acknowledging the relevant onus and standard of proof.
24.Any offence of a sexual nature involving a child requires consideration to be given to general deterrence, denunciation and punishment. I do not think that personal deterrence has significance in the present case because I am satisfied that it is unlikely that you will re-offend in a similar way.
25.You have ceased using drugs and abusing alcohol. You are in steady employment and you are in a steady relationship which has produced three children. You have demonstrated that you are committed to rehabilitation. While the present offence is not trivial, I take into account your age at the time of the offence and the fact that you had a genuine affection for the victim as she had for you at the time. This offence occurred at a difficult point in your life and at a time when you did not have the maturity to cope with your life challenges. In my opinion, a sentence of imprisonment wholly suspended with a Good Behaviour Order involving a significant component of community service will be sufficient to satisfy the requirements of sentencing.
The sentencing judge made the following orders:
26.I record a conviction on the charge of maintaining a sexual relationship with a young person (SCCAN 2020/147) and you are sentenced to two years’ imprisonment commencing today, 30 August 2021, and expiring on 29 August 2023.
27.That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of two years commencing today requiring you to accept the supervision of the Director-General responsible for ACT Adult Corrections, or that person’s delegate for that period of two years or such lesser period as deemed appropriate by your supervising officer and to obey all reasonable directions of each such person.
28.It will be a further term of the Good Behaviour Order that you are to complete 300 hours of community service as directed by an authorised officer within a period of two years.
The submissions
In its written submissions, the Crown contends that the sentence was manifestly inadequate, particularly in light of the maximum penalty of 25 years’ imprisonment, comparative cases and the relevant purposes of sentencing. The manifest inadequacy is said to involve both the length of the term of imprisonment and the suspension of the entire sentence of imprisonment.
The Crown submits that the objective seriousness of the offending is demonstrated by the age difference between the offender and the victim, the length, frequency and nature of the sexual relationship, and the harm occasioned to the victim as a result of the offending. The four-year age gap is submitted to be significant given the very different stages of life of the offender and the victim. The offending conduct was prolonged, spanning across eight months. The Crown submits that insufficient weight was given to the sexual intercourse being unprotected, resulting in the victim giving birth to a child.
The Crown’s written submissions also contend that the “genuine affection” found by his Honour to have existed between the victim and the offender could not be regarded as a mitigating factor and, further, obscured the relevance of the harm occasioned to the victim and conflated organic emotional attachment with the product of the very power and maturity imbalances the legislation seeks to address. Further, the Crown submits that the fact of a “bitter” attitude on the part of the victim towards the offender did not form a basis for limiting the weight afforded to her evidence of emotional and psychological harm.
The Crown submits that the objective seriousness of sexual offending and the prominence of deterrence, denunciation and recognition of harm to the victim will ordinarily render full-time imprisonment necessary to give effect to those sentencing purposes.
In oral submissions, the Crown added that his Honour’s focus upon the bitterness now felt by the victim wrongly subsumed or distracted from the victim’s evidence of the harm she had experienced.
The Crown also submits that his Honour erred in using the “genuine affection” between the victim and the offender and the consequent finding of an absence of predatory conduct as mitigatory in both the length of sentence and the way in which it was served.
The offender submits that the sentencing judge appropriately considered all relevant sentencing factors and that even if the sentence imposed was lenient, it was not manifestly inadequate. The offender submits that they were not particularly far apart in life stages as the victim was not attending school and had been engaging in drug use and risk-taking behaviour before she met the offender.
The offender emphasises the sentencing judge’s specific finding that he was not satisfied that the offender had preyed on the victim’s vulnerability. The offender submits that there was evidence that the offender checked with the victim that she was happy to engage in ongoing sexual activity. It is submitted that the type and quantity of sexual activity engaged in was clearly at the forefront of his Honour’s mind, as was the risk and realisation of pregnancy.
The offender submits that the finding of genuine affection was made merely to contextualise his Honour’s consideration of statements made by the victim about the harm suffered. Further, having had the benefit of seeing the victim give evidence, his Honour was entitled to apply some caution to the victim’s assertions of psychological harm caused by the offender.
In response to the offender’s reliance upon the victim having ceased attending school as demonstrating they were not particularly far apart in life stage, the Crown points to evidence demonstrating that prior to the offending, the victim had experienced extreme anxiety causing suicidal thoughts and, as a result, she had changed to attending school via distance education.
Consideration
The Crown’s sole ground of appeal asserts that the sentence was manifestly inadequate.
In R v Lindsay [2020] ACTCA 25, the Court of Appeal at [29] described the purposes of an appeal by the Crown against sentence:
… A Crown appeal against the inadequacy of a sentence should be instituted sparingly but may be appropriate where a sentence is so manifestly inadequate as to demonstrate “error in principle” or for the purpose of providing “governance and guidance” to sentencing courts.
See also R v Lee [2016] ACTCA 69 at [8].
In Dinsdale v The Queen (2000) 202 CLR 321 at [6] Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
In R v Ware (2022) 17 ACTLR 273, the Court of Appeal at [101] cited the following passage from Director of Public Prosecutions v Raddino [2002] VSCA 66; 128 A Crim R 437 at [30]:
This Court has often said that a ground of manifest inadequacy does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly inadequate or it does not.
The offence was against s 56 of the Crimes Act, and carries a maximum penalty of 25 years’ imprisonment. The section provides relevantly:
56 Persistent sexual abuse of child or young person under special care
(1)A person commits an offence if the person—
(a)is an adult; and
(b)engages in a relationship with a child, or a young person under the special care of the adult, that involves more than 1 sexual act.
Maximum penalty: imprisonment for 25 years.
(2)For subsection (1) (b)—
(a) a relationship includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise;
…
(12)In this section:
…
child means a person who is under the age of 16 years.
Although the ground of manifest inadequacy does not require demonstration of specific error, the Crown’s oral submissions raised what is contended to be an error of principle. The Crown submits that his Honour impermissibly used a finding that there was “genuine affection” between the victim and the offender as a factor mitigatory of the offending.
The question of whether ostensible acquiescence by a child to a sexual relationship with an adult can operate as a mitigating factor was considered in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45. The Court of Appeal held at [54], [59]:
54.It is simply not open to a judge in sentencing for offences involving sexual activity between an adult and a child to treat any aspect of the permitted non-sexual relationship as mitigatory of the proscribed sexual activity.
…
59.A child may express a view or behave in a way that does or does not entail objecting in some way to sexual activity taking place with an adult, but the absence of objection cannot in any way constitute mitigation. It constitutes no more than an absence of aggravation and is ordinarily only relevant to rebut, or diminish the extent of, any such aggravation suggested by the Crown or that might otherwise be inferred. That is, given that a child cannot, directly, indirectly, or by any other circumstance, consent to sexual activity with an adult, it is a serious aggravation of an already very serious offence if the child also, in fact, objected to, or otherwise resisted, the sexual activity taking place.
Accordingly, a finding that there was “genuine affection” between a child and the perpetrator of a sexually-based offence cannot be regarded a factor in mitigation of the offence.
The sentencing judge’s initial reference to, “a degree of genuine affection between the two of you” at [9] was in the context of finding that the aggravating circumstance alleged by the Crown of the offender having preyed upon the victim’s vulnerability was not established. That was permissible.
His Honour then found at [23], “I am satisfied on the balance of probabilities that you had a degree of genuine affection for the victim and she also had a degree of affection for you”. His Honour then went on in the same paragraph to find that, “there is little to suggest manipulation or predatory conduct on your part”. Although not free from doubt, when the paragraph is read as a whole, his Honour may be understood as again having referred to “genuine affection” to conclude that the aggravating feature alleged by the Crown of the offender preying upon the victim’s vulnerability was not established.
However, the same view cannot be taken of the sentencing judge’s third reference to “genuine affection” between the victim and the offender. His Honour found at [25]:
You have ceased using drugs and abusing alcohol. You are in steady employment and you are in a steady relationship which has produced three children. You have demonstrated that you are committed to rehabilitation. While the present offence is not trivial, I take into account your age at the time of the offence and the fact that you had a genuine affection for the victim as she had for you at the time. This offence occurred at a difficult point in your life and at a time when you did not have the maturity to cope with your life challenges. In my opinion, a sentence of imprisonment wholly suspended with a Good Behaviour Order involving a significant component of community service will be sufficient to satisfy the requirements of sentencing.
This paragraph was concerned with his Honour’s assessment of factors favouring a degree of leniency in sentencing the offender. His Honour commenced by describing the offender’s rehabilitation through his cessation of alcohol and drugs, his steady employment and his commitment to his present partner and their children. His Honour then referred to factors which mitigated the offender’s culpability, including difficulties in his life and his lack of maturity at the time of offending. It was in the same context that his Honour took into account, “the fact that you had a genuine affection for the victim as she had for you at the time”. That sentence can only be understood as presenting another mitigating factor. The specific reference to the victim’s affection for the offender could have had no other significance.
Although the sentencing judge had expressly recognised at [9] that the apparent willingness of the victim to engage in the sexual activity could not mitigate the offending, his Honour’s approach at [23] was inconsistent with that injunction.
It was impermissible for the sentencing judge to take into account the finding of “genuine affection” between the victim and the offender in mitigation of the offence. That error does not of itself provide a basis for setting aside the sentence, since the Crown’s Notice of Appeal relies only upon the ground of manifest inadequacy. Nevertheless, it is apparent that the error contributed to the imposition of a lesser sentence than his Honour would otherwise have considered appropriate.
The Courts have consistently recognised the seriousness of the harms caused to children from sexual offences against them and the need to protect children from such offending. In R v Gavel [2014] NSWCCA 56; 239 A Crim R 469, for example, the Court held at [110]:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of children will inevitably give rise to psychological damage. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.
(Most citations omitted).
When imposing sentences for sexual offences against children, the necessity for adequate punishment, deterrence, denunciation, protection of the community and recognition of the harm done to the victim is ordinarily given greater weight than the purpose of rehabilitation of the offender.
In EG v R [2015] NSWCCA 21, Hoeben CJ at CL (the other members of the Court agreeing) held at [42]:
General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.
Similarly, in R v Miller [2019] ACTCA 25; 279 A Crim R 232, Burns and Loukas-Karlsson JJ observed at [44]:
The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the offender beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the offender, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.
In the present case, the sentencing judge recognised that the seriousness of the offending required a sentence of imprisonment. However, his Honour extended leniency, taking into account the offender’s rehabilitation and factors mitigating the offender’s culpability, including, impermissibly, the “genuine affection” between the offender and the victim. That leniency extended both to the length of the sentence of imprisonment and its suspension in full. A fully suspended sentence of imprisonment involves significant leniency compared to a sentence required to be served in whole or part by way of a full-time term of imprisonment: Samani v The Queen [2017] ACTCA 23 at [33]; R v Horton-Hegarty [2018] ACTCA 22 (Horton-Hegarty) at [43].
In our opinion, the length of the term of imprisonment imposed upon the offender and the suspension of the whole of that imprisonment failed to adequately reflect the seriousness of the offence or the gravity of the consequences for the victim.
First, the nature, frequency and length of time over which the sexual offending occurred increased the seriousness of the offence. The sexual relationship took place over a period of about eight months. Many of the acts of intercourse were without use of a condom. In R v Sirl (No 4) [2020] ACTSC 23, Murrell CJ observed at [14] that penile/vaginal penetration is one of the most serious sexual acts falling within the scope of the conduct captured by s 56 of the Crimes Act.
Second, the age difference between the offender and the victim, their quite different stages of life and the influence of those factors upon the commencement and maintenance of the sexual relationship make the offending more serious. The offender was a 19 year old adult. The victim was a 15 year old child. The victim was still at school through distance education. The offender had already been in a relationship with a partner which had produced a child. The offender was substantially more mature and experienced in life and in sexual matters than the victim.
In R v Nelson [2016] NSWCCA 130, in considering the significance of the age difference between a 13 year old girl and an 18 year old man, Basten JA observed at [25]:
Although much will depend upon personalities and physical stature, the age difference is significant. A young girl may more readily be dominated by an older man, but may also be more susceptible to manipulation and persuasion by a young man who is undoubtedly older than she is, but is closer to her own age than an abusive adult.
In the same case, Rothman J observed at [64]:
The capacity to drive and obtain alcohol (or visit clubs) is a subtle and overwhelming distinction in a mark of quote “adulthood” compared to a person who is only just learning about relationships generally and he may well envy the freedom that “adulthood” provides. In my view, the difference between an 18 year old, regardless of the subjective circumstances of the Offender, and a 13 or 14 year old is extremely significant.
In a passage relied upon by the offender, in Clarksonv R [2011] VSCA 157; 32 VR 361 (Clarkson), the Court held at [6]-[7]:
6.Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner — the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
7.At the other end of the scale, there are exceptional cases - for example, in a relationship between a 15-year-old girl and an 18-year-old boy - where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender's culpability as reduced. In such a case, too, 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.
difference and similar levels of maturity, “the consent is, relatively speaking, freely given”, and “the victim is not likely to suffer … harm”.
Third, a significantly aggravating feature of the offender’s conduct is that he failed to use contraception. The victim became pregnant and gave birth at the age of 16. As has been observed, the offender was already a father, having had a child from a previous relationship. He was clearly aware of the potential consequences of unprotected sex, but ignored the consequences that pregnancy would have for the victim. The offender’s failure to use contraception substantially aggravates his moral culpability: cf. R v RD [2014] NSWCCA 103 at [7]-[8], [64].
Fourth, and most significantly, the victim suffered serious harm. She became pregnant. Her pregnancy was difficult. From 20 weeks into her pregnancy, she spent the, “majority of the time in the hospital as a high risk patient”. She spent her 16th birthday in hospital. The consequences to the victim, herself a child, resulting from her pregnancy, were not mentioned by the sentencing judge. His Honour did, however, find that the victim had a pre-existing psychological condition, which was aggravated by the sexual relationship itself.
The offender relies upon Horton-Hegarty, where the Crown appealed against sentences imposed for five offences of sexual intercourse with a person under the age of 16 (s 55(2) of the Crimes Act) and one offence of using a child for the production of child exploitation material (s 64(3) of the Crimes Act). The latter involved the offender having the victim send him photographs of her breasts. The sentence was two and a half years’ imprisonment in total, suspended upon the offender entering a good behaviour order for two and a half years. The good behaviour order contained a supervision condition and a requirement that the offender undertake 300 hours of community service. The sentences were reduced by 25% to take into account utilitarian value of the pleas. The maximum sentences of imprisonment were 14 years and 10 years respectively. The offender was 21 years old. The victim was 14 years old. The offender was an assistant manager at the takeaway food shop where the victim worked. The Court of Appeal considered that the sentences were, by reason of their suspension, undoubtedly lenient, but did not accept that they were manifestly inadequate.
The circumstances in Horton-Hegarty are not comparable with those of the present case. In that case, the maximum penalties were 14 and 10 years’ imprisonment, compared with 25 years in the present case. The offending in this case occurred over a much longer period of time and involved substantially more numerous acts of sexual intercourse. Importantly, the complainant in that case did not suffer the harms resulting from pregnancy. In our view, Horton-Hegarty does not assist the offender.
It should be acknowledged that a matter significantly influencing the sentencing judge was the offender’s rehabilitation. That was demonstrated through his cessation of the use of alcohol and drugs, his obtaining of employment and his dedication to his children (at least those he fathered with his current partner). However, as has been mentioned, in an offence of this kind, deterrence is ordinarily of greater significance than rehabilitation.
In our view, the sentence was manifestly inadequate. The length of the sentence of imprisonment and its suspension in full were too lenient to reflect the seriousness of the offending and the harm to the victim.
It should be mentioned at this stage that the offender submits that the Court should decline to vary the sentence even if it was manifestly inadequate. The Court has a residual discretion not to intervene, and the Crown has the onus of demonstrating why the Court should intervene: CMB v Attorney-General (NSW) (2015) 256 CLR 346 at [6], [66].
In considering the exercise of the discretion in this case, it is relevant to consider the sentence we would impose if resentencing the offender. We would impose a sentence of three years’ imprisonment (reflecting a starting point of 3 years and 9 months’ imprisonment reduced by 20% for the utilitarian value of the plea of guilty), suspended after the offender has served nine months’ imprisonment. This assessment leaves aside any reduction of the sentence to account for the offender’s partial completion of community service.
By the time of the hearing of the appeal, the offender had completed 172 hours of the 300 hours of community service he had been ordered to perform. The Crown acknowledged that it was necessary for the Court to take into account the partial completion of community service.
In considering the exercise of the discretion, it is relevant to take into account any adverse effects upon rehabilitation that resentencing may create: see Green v The Queen (2011) 244 CLR 462 at [43]. That is so even though, in this case, the offender’s rehabilitation attracts limited weight in comparison to other sentencing considerations. Taking into account the community service already done, any term of imprisonment now required to be actually served by the offender would be modest. Short terms of incarceration for young offenders are generally undesirable: see Lilico v Meyers [2003] QCA 16; 137 A Crim R 473 at [32] and [62]; R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295; 235 A Crim R 316 at [33]. In our opinion, requiring the offender to serve a short period of actual imprisonment would be be counterproductive to his rehabilitation. In addition, the purpose of the Crown’s appeal of laying down principles for the governance and guidance of Courts can be achieved without resentencing the offender. In these circumstances, it is appropriate to exercise the discretion to not intervene in the sentence.
Accordingly, the appeal will be dismissed.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 23 November 2022 |
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Amendments
| 23 November 2022 | Replace “Ms S Drumgold SC” with “Mr S Drumgold SC” | Page 2: “Representation: Counsel”. |
| Replace “seventy-six” [76] with “seventy-four” [74]” | Certification, page 14 |
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