R v Smith (a pseudonym) (No 2)
[2020] ACTSC 260
•29 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith (a pseudonym) (No 2) |
Citation: | [2020] ACTSC 260 |
Hearing Date: | 28 September 2020 |
DecisionDate: | 29 September 2020 |
Before: | Mossop J |
Decision: | See [51] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual intercourse without consent – act of indecency – offender and victim were young persons – found guilty in judge alone trial – offender maintains not guilty plea – no remorse or insight into actions – importance of rehabilitation for a young offender – good support network – suspended sentence of imprisonment and good behaviour order CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by the offender not to be included on the child sex offender register – offender does not pose a risk to lives or sexual safety of people in the community – offender and victim were the same age – no evidence of inappropriate sexual inclination or involvement with children – inappropriate to include the offender on the register in the circumstances of the case |
Legislation Cited: | Crimes Act 1900 (ACT), ss 54(1), 60(1) Crimes (Child Sex Offenders) Act 2005 (ACT), s 9 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74 |
Cases Cited: | Milner v AW [2014] ACTSC 231 R v Aroub [2017] ACTSC 187 Wyper v The Queen [2017] ACTCA 59 |
Parties: | The Queen (Crown) John Smith (Offender) |
Representation: | Counsel S Saikal-Skea (Crown) S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 170 of 2019 |
MOSSOP J:
Introduction
On 4 June 2020, following a four day judge alone trial, I found the offender, a young man who was 17 years old at the time of the offending, guilty of one count of an act of indecency contrary to s 60(1) of the Crimes Act 1900 (ACT) and two counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act: R v Smith (a pseudonym) [2020] ACTSC 142 (R v Smith). The maximum penalty for the act of indecency is seven years’ imprisonment and for the sexual intercourse without consent it is 12 years.
In order to protect the identity of the victim (Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) s 74) and the offender (Criminal Code 2002 (ACT) s 712A), I have adopted the same scheme for anonymisation as in R v Smith. The key to the anonymisation is contained in the schedule to the previous reasons, which has been provided to the parties and kept on the court file but not published on the internet.
Facts
Overview
On 27 April 2018 the victim, Mary Jones, picked up the offender, John Smith, from an 18th birthday party that he was attending in Barton. She was to drive him home. The offender asked if they could stop at an oval on the way. The victim parked the car in a car park next to the oval. The offender got out of the car and chased kangaroos which had been grazing on the oval. Both the victim and the offender were being silly and having fun. Both young persons returned to the car where, after a bit more happy carrying on, they engaged in consensual sexual activity in the back seat of the victim’s car.
At one point, the offender asked if he could give the victim oral sex. She said no. The offender opened the victim’s legs and moved down as if he was going to perform oral sex. The victim pushed him away and said no. He went down to do it again and licked the victim’s thigh. This is the conduct that constitutes count 1, the act of indecency.
Shortly thereafter, the offender tried to put his penis in the victim’s vagina and went partly into it. The victim said “no”. That constitutes count 2, sexual intercourse without consent. The offender then inserted his penis into the victim’s vagina repeatedly. That constitutes count 3, a second count of sexual intercourse without consent. The victim again said no or something to that effect. The offender continued the penile‑vaginal intercourse for a period until the victim ceased resisting and cried. The offender then asked her whether she was being serious. He ceased to have intercourse with her. Because she was upset, they then stayed at the oval car park for a period of time talking before the victim drove the offender home.
My findings in relation to the acts constituting the offences in R v Smith were as follows:
195. I accept beyond reasonable doubt the evidence of the complainant that the sexual intercourse occurred without her consent. That evidence was consistent with her conduct, including her complaints to Ms Campbell, her parents and Mr Brown after the incident. That is also consistent with the attitude that she had previously demonstrated to Ms Peters.
196. I have rejected the accused’s evidence about the critical events in the car. That evidence does not cause me to have a doubt about the complainant’s evidence that she did not consent and did not have a conversation in which she indicated that she consented either to sexual intercourse or to being “licked out”.
197. I accept beyond reasonable doubt the complainant’s evidence that the accused requested that they have sexual intercourse and that she said no. I accept that he asked if she wanted to be “licked out”, that she declined and that he went down as if to do so and licked her thigh. I am satisfied that this was indecent in the relevant sense. Because I am satisfied that the complainant had declined the offer made by the accused, I am satisfied beyond reasonable doubt that she did not consent to the licking of her thigh and that the accused was as least reckless as to her lack of consent. I am satisfied that each element of count 1 has been proven beyond reasonable doubt.
198. I am satisfied beyond reasonable doubt that sexual intercourse did occur. That finding is uncontroversial having regard to the evidence of the accused.
199. I accept the complainant’s evidence that, following on from the mutual masturbation, the accused was positioned over her and penetrated her vagina, and that she said “No” or otherwise verbally indicated that she did not want this to occur. I accept her evidence that he penetrated her vagina again and that once again she said “No” or otherwise verbally indicated that she did not want this to occur.
200. I do have a doubt about the complainant’s evidence as to the duration of the sexual intercourse. Her evidence ranged from it being a couple of minutes through to 10 minutes, but most consistently fixed on the period of 10 minutes. The doubt that I have arises from the absence of a coherent explanation of what might have been occurring during that 10 minutes which would also be consistent with the accused desisting from further intercourse when he observed the complainant to give up and cry. I accept the complainant’s evidence about giving up, turning away and crying beyond reasonable doubt. I have a doubt about her explanation of what was occurring during the period of intercourse prior to that, as her description of the interaction appears to be inconsistent with the enthusiasm of the accused waning so decisively when he observed her to be crying.
201. I am satisfied beyond reasonable doubt that the intercourse continued for a period until the complainant turned her head and started crying, after which the intercourse continued only for approximately a further 20 seconds. During the period prior to the complainant turning her head and crying, I have a doubt as to whether the accused deliberately used force upon her for a period of minutes. There is no doubt that he was on top of her, was stronger than her and was in a position to exercise a degree of physical control over her during the intercourse. However, I have a doubt as to whether he deliberately used that strength to subdue her.
202. I am satisfied beyond reasonable doubt that the accused was reckless as to the complainant’s consent. She had previously declined to have sexual intercourse with him. She is not taken to have consented to sexual intercourse because she was prepared to engage in mutual masturbation or even perform fellatio on him. I am satisfied beyond reasonable doubt that the previous refusal of consent, and the absence of express consent immediately prior to intercourse, gave rise to a possibility in the accused’s mind at the point where he first penetrated her that the complainant was not consenting. After he had penetrated her, she indicated her lack of consent and the continuation of the intercourse at that point was at least reckless. My finding is at least recklessness, because there is a possibility that he was prepared to discount her statements that she did not consent. However, I am satisfied beyond reasonable doubt that he recognised the possibility that she was not consenting.
203. At the point where the complainant simply gave up and cried, the attitude of the accused changed and he ceased to have sexual intercourse. He was not prepared to continue the sexual intercourse when it became obvious to him that the complainant was upset to the point of tears. I am satisfied beyond reasonable doubt that the accused then recognised that he had gone too far and had proceeded in circumstances where the complainant had not consented to the sexual intercourse. It is that which provides the reason, consistent with the complainant’s evidence, for him wishing to discuss what had occurred with her, in the hope of reducing or eliminating any upset on her part and thereby protecting his own interests.
Victim impact statements
The victim and her parents read aloud their victim impact statements in court. The victim’s statement made clear the lasting impact that these offences have had on her. She described the “roller coaster of mental, physical and emotional hurdles” she has been through in the last two and a half years. She has battled severe anxiety and depression, eating problems and has self-harmed and attempted suicide. She described how she was unable to drive her car again as it was where the offences occurred. She has difficulty trusting people and doubts everyone’s intentions. It has affected her relationships with family and friends.
Her struggles since the incident were corroborated by the statements of her parents. Her mother said that her daughter’s life and personality changed following the offences, and she became “depressed, anxious, withdrawn, angry, self-loathing”. She noted that there have been many events that her daughter has not participated in due to her struggles. She said that the victim began to self-harm in June 2018 and has tried to commit suicide on more than one occasion.
Her father’s statement stated that the victim “has never been the same since” and the incident “took away her innocence”. He made references to the victim becoming more reclusive and losing trust in people. He described how finding the victim self-harming and trying to commit suicide will never leave his memory.
The impacts upon the victim of the offending are, unfortunately, of a nature which is not unexpected. For example, similar significant psychological consequences were recorded in R v Ballantyne (Unreported, ACT Supreme Court, Murrell CJ, 1 April 2014) (Ballantyne) at [3] arising from a brief incident involving digital penetration.
The court must acknowledge the long-term and complicated harm that occurs from offences such as these and that must be reflected in the approach that the court takes to sentencing for such offences.
Objective seriousness
The offending occurred in the context of otherwise consensual sexual activity. The offender and the victim had an ongoing relationship which involved sexual activities (not including penile‑vaginal intercourse) on other occasions. It appeared to be an unplanned and opportunistic escalation of the sexual activity, reckless as to the consent of the victim. It occurred between two young people of equal age and therefore age disparity was not a circumstance of aggravation. There was a disparity in physical strength between the offender and the victim.
In relation to the act of indecency, in the circumstances this was in the low range of objective seriousness, being a brief licking of the victim’s thigh without her consent.
The two counts of sexual intercourse without consent occurred shortly after one another. The first was very brief. The second went on for a longer period of time and hence is more serious. However, they were part of a single course of conduct. No condom was used, giving rise to the risk of pregnancy and the risk of sexually transmitted disease. Until the point at which the offender observed the victim to be crying, he was reckless as to her consent. He did not continue for long after it became obvious that the victim was upset to the point of tears.
Recognising that the offending is necessarily serious, the objective circumstances of the charges of sexual intercourse without consent fall within the low to mid range of objective seriousness for that offence.
Subjective circumstances
Pre-sentence report
The subjective circumstances of the offender are set out in a pre-sentence report dated 24 September 2020. He is currently 19 years old. He reported positive relationships with his parents and two older sisters, noting that he had an incident free upbringing that involved no illicit substance and alcohol abuse or family violence. He stated that he had a significant extended family network, which was verified by his mother.
He currently resides in his family home with his parents, where he has lived for approximately 15 years. The author of the report noted that the offender is afforded the support of his parents, who appear to provide pro-social modelling.
The offender completed Year 12 and reported working in part-time casual employment whilst at school. During school he also commenced a carpentry apprenticeship, and he stated that he has recently returned to this employment and is in his third year of a four‑year apprenticeship. This was confirmed in a letter from his current employer, who also confirmed continued employment moving forward. The offender reported that he had worked for a year as a Telstra sales consultant.
He reported no problems with alcohol, stating he “drinks to a point where he is able to identify the effects of alcohol on approximately two occasions per month.” He noted that he had been drinking on the night of the offence. He reported no illicit substance use, stating that due to playing competitive football he has never taken the risk.
He plays for a local football club and has played the sport since he was five years old. His involvement in football acts as a significant deterrent from illicit substance use. He also said that he enjoyed outdoor activities and socialising with friends.
He reported no mental health concerns and advised he had never sought assistance from mental health service providers. He stated he is physically well, save for a pre‑existing ankle injury.
The offender stated that he stood by his evidence during the trial and his not guilty plea. He said the case statement tendered in court did not align with his testimony.
The author of the report was of the opinion that the offender has a low risk of general reoffending and an average risk of sexual reoffending. His criminogenic risks relate to alcohol use and his attitude towards the offending behaviour. His protective factors are the support of his family and stable accommodation and employment.
He was assessed as suitable for a good behaviour order, a community service work condition and an intensive correction order.
Character references
13 character references were tendered on behalf of the offender. These included members of the offender’s family, friends and his current employer. Each described the offender in very positive terms. His mother’s statement described him as someone who was “raised to understand rules and boundaries, to be kind, to accept all people as equal and to always show respect to others as well as respect for himself”. She said she often received messages or phone calls from parents of friends complementing his character. She reflected on the stress and anxiety that the court process has placed on their family. She said the charges had forced him to reconsider his future and career aspirations. She described him as an “honest and genuinely good person who makes a positive contribution to society”.
His two sisters both gave references describing him as a kind and generous person. They reflected on the way the matter has impacted his life. Other references from friends and parents of friends described the offender as a kind and respectful person. These references described being shocked at the offences the offender had been found guilty of, describing it as out of character.
The reference from his employer described him as a punctual and reliable employee who has a good work ethic and a positive attitude. He confirmed his intention was to make the offender’s role more permanent and to employ him to finalise his apprenticeship.
Evidence of offender’s father
The offender’s father gave evidence that the offender was returning to his apprenticeship after ceasing work for Telstra because he was made to feel uncomfortable in the sales role that he fulfilled. He said that he also returned to playing rugby union with some encouragement. He said that he had received a lot of hate from individuals. That discouraged him from socialising. He would only do so with a small number of friends.
He said the offender was generally very respectful with women of all ages. He described him as kind, caring, respectful, honest and a person of high integrity.
The offender’s father said that as a result of the present proceedings the offender has been cautious with any relationship with women, finding it difficult to assess their motivations and being scared that something might go wrong.
The offender has been forced to give up his coaching of 10 and 11-year-olds and misses this.
The offender’s father was cross-examined for the purpose of demonstrating that his evidence was given without any direct knowledge of how the offender behaved in relation to women with whom he was in an intimate relationship or had a sexual interest in.
Criminal history
The offender has no previous criminal history.
Time in custody
The offender has spent no time in custody in relation to these offences.
Comparable cases
The Crown provided helpful written submissions which included a table summarising sentences involving what was said to be comparable cases involving sexual intercourse without consent. Those cases were R v MT [2014] ACTSC 162, R v EO [2017] ACTSC 138 (EO); R v ME [2017] ACTSC 402; Milner v AW [2014] ACTSC 231; R v UG [2018] ACTCA 64; 14 ACTLR 70; Wyper v The Queen [2017] ACTCA 59; R v Buda-Kaa [2013] ACTCA 46; R v Aroub [2017] ACTSC 187. I have also had regard to the sentence imposed in Ballantyne.
The pattern of sentencing shows very considerable leniency shown to offenders who were under the age of 18 at the time of the offending and who pleaded guilty. Those features have tended to lead to non-custodial outcomes. More serious offences, older offenders or offenders who did not demonstrate remorse and insight into their offending were dealt with by custodial sentences.
Consideration
It is very important in this case to have regard to the fact that the offender was a minor at the time of the offending. Notwithstanding that he was close to majority, he still has the benefit of the provisions of the Crimes (Sentencing) Act 2005 (ACT) relating to sentencing of young offenders. Sections 133C and 133D provide:
133C Young offenders—purposes of sentencing
(1) Despite section 7 (2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7 (1).
(2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
133D Young offenders—sentencing—additional relevant considerations
(1) In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
(a) the young offender’s culpability for the offence having regard to his or her maturity;
(b) the young offender’s state of development;
(c) the past and present family circumstances of the young offender.
(2) This section applies in addition to section 33 (Sentencing—relevant considerations).
Further, a sentence of imprisonment must be a last resort and for the shortest appropriate term: s 133G(2).
The reference in s 133C(2) to individualised justice is explained, to the extent that it can be, by Refshauge J in TM v Karapanos and Bakes [2011] ACTSC 74; 250 FLR 366 at [104]-[109].
In relation to s 133D, the offender’s level of maturity and state of development appears to be consistent with what would be expected of a 17‑year‑old male, although clearly the offending indicates that he was not able to deal appropriately with his relationship with the victim. Past and present family circumstances of the offender provide no mitigating circumstances in relation to the offending. The indications are that he has had a comfortable and well supported life. This is likely to reduce the risk of general reoffending.
Clearly, the offender did not pay adequate regard to the issue of consent. That is a matter of fundamental importance so far as the law is concerned. Each of the sentencing purposes under s 7 of the Crimes (Sentencing) Act are of significance, however, it is necessary, because of s 133C, to give more weight to the purpose of promoting the rehabilitation of the offender than to any of the other purposes in s 7. In this case, the prospects of rehabilitation may only be determined by inference as the offender maintains that he is not guilty and has not expressed any remorse or insight in relation to his conduct or taken any other steps that would indicate that he is rehabilitated. An inference favourable to the offender may be drawn from his conduct on the night, in that he did not persist with sexual intercourse when it became clear that the victim was upset to the point of tears. Further, the evidence discloses that, outside the context of intimate relationships, he conducts himself in a respectful manner towards women.
Notwithstanding the uncertainty in relation to rehabilitation, the evidence is sufficient to indicate that without a period of full-time detention he will be deterred from any similar conduct in the future. The evidence disclosed that he has been the subject of a degree of social opprobrium as a result of knowledge of the proceedings against him. It is likely, having regard to the strong social connections both within his family and beyond, that social pressures will be such that any unlawful sexual conduct in the future is unlikely. Having regard to his social circumstances and connections I agree with the statement in the pre-sentence report that his prospect of general reoffending is low.
In relation to the act of indecency without consent, I consider that this may be appropriately dealt with by a relatively short good behaviour order.
In relation to the two counts of sexual intercourse without consent, I am satisfied that the threshold for a custodial sentence in s 10 of the Crimes (Sentencing) Act has been passed, having regard to the nature of the offending and the sentencing practice of this court disclosed in the cases which I have referred to earlier. The shortest appropriate term in relation to each such offence is a sentence of three months and eight months respectively. I do not consider that there would be any significant utility in having those sentences served by intensive correction. I consider that the purposes of sentencing will be appropriately addressed if those sentences are suspended subject to good behaviour orders, involving a period on probation and a short period of community service required as a condition of one of those orders.
Child sex offenders register
The offender made an application for an order under s 9(2) of the Crimes (Child Sex Offenders) Act 2005 (ACT). Section 9(2) provides that a person is not a registrable offender if the person was a young person at the time that the offence was committed and “a court considers … that including the person on the register is inappropriate in the circumstances of the case”.
In deciding whether to reach the conclusion under s 9(2) the court is required to take into account the factors in s 9(3), namely, the severity of the offence and the seriousness of the circumstances surrounding the commission of the offence, the age of the person at the time of the offence, the level of harm to the victim and the community caused by the offence, any attempts at rehabilitation by the person, and whether the person poses a risk to the lives or sexual safety of one or more people in the community.
I have indicated above my assessment of the objective seriousness of the offence. The offender was 17 years old at the time of the offence. Not unexpectedly, a significant level of harm has occurred to the victim and her family. Because the offender has maintained that he is not guilty of the offence there have been no attempts at rehabilitation. However, in light of the sentences to be imposed, I do not consider that the offender poses a risk to the lives or sexual safety of one or more people in the community.
It is also relevant to take into account (pursuant to s 9(3)(f)) that the offences in this case were committed against an individual of the same age as the offender and there is no evidence of any inappropriate conduct or inclination towards sexual involvement with children per se.
Having regard to the above, I consider that it would be inappropriate for the offender to be included on the register. It appears to me that, having regard to the nature of the offending and the low risk of future offending, no useful purpose would be served by including the offender on the register.
Although the application sought an “order”, s 9(2) provides that a person is not a registrable offender if “a court considers, on application by the defence, that including the person on the register is inappropriate in the circumstances of the case”. Thus, the statutory condition of not being a registrable offender is based upon the state of mind of the court rather than any order. In EO I dealt with the matter by reflecting the statutory language. I will do so again here.
Orders
The orders of the Court are:
1. On the charge of committing an act of indecency without consent (CH 2019/241), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months.
2. On the charge of sexual intercourse without consent (CH 2019/388), the offender is convicted and sentenced to imprisonment for a period of three months which is to be fully suspended upon the offender undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the additional condition that for 18 months, or such lesser period as the Director-General considers appropriate, he be subject to a condition that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person.
3. On the second charge of sexual intercourse without consent (CH 2019/233), the offender is sentenced to imprisonment for a period of eight months which is to be fully suspended upon the offender undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the additional conditions that:
(a)for 18 months, or such lesser period as the Director-General considers appropriate, he be subject to a condition that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person; and
(b)that he perform 100 hours of community service within 12 months.
4. The Court notes that the offender is not a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) because the Court considers that including the offender on the register is inappropriate in the circumstances of the case.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 2 October 2020 |
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