R v Page

[2021] ACTSC 207

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Page

Citation:

[2021] ACTSC 207

Hearing Dates:

25 – 26 May; 12 July; 23 August 2021   

DecisionDate:

30 August 2021

Before:

Burns J

Decision:

See [26]–[28]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – maintaining a sexual relationship with a young person – plea of guilty – disputed facts hearing – where offender 19 years old and victim 15 years old – where sexual relationship continued for nine months – where victim became pregnant as result of offence –  where communications suggested degree of genuine affection between offender and victim – whether particular incident of sexual intercourse occurred where offender knew victim was not, in fact, consenting – consideration of full-time imprisonment – demonstrated commitment to rehabilitation

Legislation Cited:

Crimes Act 1900 (ACT) s 56(1)

Parties:

The Queen ( Crown)

Darcy Edward Page ( Offender)

Representation:

Counsel

A Chatterton ( Crown)

B Morrisroe ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Tim Sharman Solicitors ( Offender)

File Number:

SCC 171 of 2020

BURNS J:

1. Darcy Edward Page, on 25 May 2021 following negotiations between your lawyers and the Director of Public Prosecutions at a Criminal Case Conference, you entered a plea of guilty to one charge contrary to s 56(1) of the Crimes Act 1900 (ACT) alleging that between 23 June 2018 and 24 February 2019 you maintained a sexual relationship with a young person (SCCAN 2020/147). The maximum penalty for that offence is

   
   

   25 years’ imprisonment.

The facts

1. You met the victim in May 2018 when you were 18 and she was 15 years old. You were neighbours and you were also friends with the victim's brother. Because of your relationship with the victim's brother, you started spending time at their home. Shortly after you met the victim, you commenced contacting her via Facebook Messenger. You began exchanging messages, with some of the messages including love heart emoticons and kiss symbols. After a brief period exchanging messages, you and the victim began to spend time privately together during which you talked, kissed and hugged in an intimate way. These meetings were arranged either via Facebook or by text message.

1. At some stage after the commencement of your relationship with the victim but prior to you engaging in any sexual intercourse with her, you became aware that the victim was 15 years old. On your 19th birthday, you asked the victim to be your girlfriend. This was prior to any sexual activity taking place between you and the victim and at the stage when you were kissing and hugging intimately.

1. The first occasion of sexual activity with the victim occurred on 24 June 2018. You digitally penetrated her vagina with your fingers. You returned the following evening and engaged in the same conduct. The sexual activity progressed to penile/vaginal intercourse on 2 July 2018. At that time, the victim was aged about 15 years and

   
   

   four months.

1. Your sexual relationship with the victim continued until 23 February 2019 except for a period when you broke up between late August 2018 and October 2018. The sexual activity in which you engaged with the victim typically involved digital penetration of the victim's vagina, penile penetration of her vagina and cunnilingus. An agreed schedule of the sexual activity in which you engaged with the victim was tendered at the sentence hearing and I will not now recite that activity in full. It is sufficient to note that the schedule contains a record of separate occasions upon which you engaged in sexual activity with the victim.

1. One aspect of the facts alleged by the Crown was disputed by you. The Crown alleged that a particular act of sexual intercourse occurred in November 2018 in which the victim made it clear to you that she was not consenting to that act. Because of the age of the victim, her lack of consent to any sexual activity is not a matter which the Crown needs to prove to establish the charge of maintaining a sexual relationship. The victim was incapable of giving consent to sexual activity because of her age. It would, however, be a significant aggravating circumstance if the Crown were to prove that you had engaged in one or more acts of sexual intercourse with the victim in circumstances where you knew that she was not, in fact, consenting. Because it would be a circumstance calling for greater punishment for the present offence, the Crown must prove such an aggravating circumstance to the standard of beyond reasonable doubt.

1. A disputed facts hearing was conducted in which I heard evidence from the victim. It was very clear from her evidence that she now holds a great deal of animosity towards you. This is unsurprising considering how greatly this offence has affected her life, a matter to which I will come in a moment.

1. There was no dispute that the act of intercourse occurred, but it was your assertion that the victim had not given any indication that she was unwilling to engage in that act. The victim made no immediate complaint about what had occurred during this particular act of sexual intercourse. This is also understandable considering the age of the victim and her relative immaturity. She also continued to have apparently friendly and affectionate communications with you after this alleged event. In her evidence, the victim gave rational reasons why she may have behaved in this way. However, as I have said, I am obliged to be satisfied of any alleged circumstance which calls for greater punishment to the standard of beyond reasonable doubt.

1. 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.

1. You were also immature and it is hardly surprising, considering your age, that the relationship broke down because you showed a lack of commitment in your relationship with the victim.

Objective seriousness

1. 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.

1. 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.

1. 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.

1. 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.

Subjective features

1. You are currently 22 years old although, as I have said, the offence occurred when you were 19 years of age. You have no previous criminal convictions. You have been subject to bail supervision while awaiting sentence and your compliance has been described as satisfactory.

1. You had a difficult childhood. Your parents were very young when you were born and they were unable to adequately care for your needs. You were raised by your grandparents from the age of six months and your parents separated a short time thereafter. For a period, you spent alternating weekends with your mother and your father, but this became untenable and you continued residing with your grandparents, choosing not to see your parents from that time.

1. You told the author of the Pre-Sentence Report that there had been several falling outs between you and other family members that have caused you to cease contact with your mother, father and grandparents at times. At the present time your relationship with your mother and grandparents is positive and supportive. You have not spoken with your father for over three years and you have no intention of reconnecting with him at this time.

1. You have been in an intimate relationship with your current partner for approximately eight years, although you separated for approximately one year which coincided with the present offence. You reconciled with your present partner in early 2019 and you currently reside with her and your three young children aged four, two and seven months old. You described your relationship with your partner as very strong and supportive and spoke of your children as being the most important aspect of your life.

1. Your mother stated that she believed you have made many positive changes to your life since you reconnected with her approximately two years ago. She stated that you have been negatively influenced by your father who is involved in drug use and criminal activity. Your mother is paying your legal fees and you are repaying her from your current earnings. You have moved away from anti-social influences and you are now only involved in pro-social friendships. Most of your time is either spent at work or with your family.

1. You have abused alcohol and smoked cannabis in the past but over the last two years you have consumed alcohol only in moderation and you no longer smoke cannabis. You do not have any physical or mental health issues. You completed your education to the end of Year 12 and you obtained employment two years ago when offered a job by your mother to work for a company she owns with her partner. In April this year, you obtained employment with a landscaping company on a casual basis and in

   
   

   July this year you were offered full-time employment by that firm. You told the author of the Report that you enjoy this employment and you value it.

1. I take into account the contents of a letter written by your mother which was tendered in the sentence hearing. It speaks of the difficulties you confronted in your childhood with a father who was drug-addicted and with a broken family. Your mother speaks of the negative influence that your father has been in your life. She also speaks of your continuing relationship with your partner and your children and the remorse that you feel for the present offence. She also confirmed that you have been working full-time in order to support yourself and your family and to repay her for your legal expenses.

Consideration

1. 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.

1. 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.

1. 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.

1. 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.

Sentence

1. 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.

1. 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.

1. 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.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date:

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Amendments

27 September 2021 Add “30” such that the first sentence reads: “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.” Paragraphs: [11]