R v Summerfield
[2017] ACTSC 321
•23 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Summerfield |
Citation: | [2017] ACTSC 321 |
Hearing Date: | 23 October 2017 |
DecisionDate: | 23 October 2017 |
Before: | Mossop J |
Decision: | See [31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a young person under the age of 16 years – offender and victims’ in relationship – significant age difference between offender and victims’ – offender impregnated one of the victims’ – diagnosis of a mild intellectual disorder reduces moral culpability – significant criminal history for a young offender – plea of guilty – sentenced to a period of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 55(2) |
Parties: | The Queen (Crown) Luke Summerfield (Defendant) |
Representation: | Counsel Mr M Thomas (Crown) Ms B Dunne (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 263 of 2017 |
MOSSOP J:
Introduction
The offender has pleaded guilty to five counts of sexual intercourse with a person under the age of 16 years. These offences arise from brief relationships with two girls. Each offence is contrary to s 55(2) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 14 years’ imprisonment.
Facts
The charges which the offender has pleaded guilty arise from his relationships with two girls who are referred to in these reasons as TT and TB respectively. TT was 15 years old at the time of the offences and TB was 13 years old at the time of the offences. The relationships involved sexual intercourse, including penile-vaginal sexual intercourse without the protection of a condom. One of the victims’, TB, became pregnant as a result of the offending conduct and had a termination.
Offences involving TT
The offender initially contacted TT via Facebook Messenger on 27 January 2016, and, from 31 January 2016, exchanged telephone calls and text messages. TT told the offender that she was 15 years old. The parties agree that she was in fact 15 years old. Her parents agreed that the offender could visit and stay overnight at their home. On the first visit, the offender and TT watched movies in the lounge room. After TT’s parents had gone to sleep, the offender and TT had penile-vaginal sexual intercourse. The offender did not use a condom and ejaculated. This gives rise to charge CC2017/4208. The following morning TT and the offender had sexual intercourse in her bedroom. This gives rise to charge CC2017/4209.
Subsequently at an “open mic night” at Garema Place, the offender introduced TT to a friend of his. That friend subsequently contacted the offender via Facebook and said that he should “dump her” because he alleged she was 13 years old. After a number of messages, the offender replied “Bro she loves me and I love her.”
On another visit to TT’s home, the offender asked her to give him a “blow job”. She did so until he ejaculated on her chest/breasts. TT agreed to the offender’s request because she wanted to please him and she had felt bad when he had earlier complained to her friends that she wouldn’t give him oral sex. This gives rise to charge CC2017/4449.
On 1 March 2016 the relationship ended. The offender told mutual friends that he had only started a relationship with her to obtain sex. However that post relationship statement is inconsistent with the earlier statement during the relationship that “she loves me and I love her.”
Offences involving TB
The offender met TB sometime after January 2016. She told him that she was 13 years old. The relationship between them in the period prior to the beginning of March is not disclosed in the agreed statement of facts. One day between 3 March and 8 March 2016, TB and the offender attended a party in Reid. Sometime during the night she was lying on a bed in the unit. The offender entered the room and said “Do you want to have sex?” She said yes. He put on a condom and they had penile-vaginal sexual intercourse until he ejaculated. This gives rise to charge CC2017/4229. Between this time and the next morning, one of the other persons in the house observed them naked on the bed on two occasions and TB disclosed to her that she and the offender had had sexual intercourse.
Later TT became aware of the offender’s relationship with TB and sent a number of texts on Facebook Messenger expressing concern about his involvement with TB because of her age.
TB’s mother suspected that TB and the offender were in a sexual relationship. She reported that to the Gungahlin police station. She contacted the offender’s mother and asked that the offender stay away from her daughter.
On 19 March 2016, TB and the offender together attended the Sky Fire Festival at Lake Burley Griffin. A mutual friend confronted the offender about dating 12 or 13 year olds. The offender acknowledged that he was. There was an altercation in which the offender got punched.
On 2 April 2016 the offender told TB on the phone that “he wanted to have a kid with her”. As a result of this the offender and TB began having unprotected sex on a regular basis.
On 12 May 2016 TB’s mother reported to police that TB had left home and not returned. She located her on 13 May 2016. TB eventually told her mother that she had spent the night with the offender and had unprotected penile-vaginal sexual intercourse with him. This is charge CC2017/4230. On 6 June 2016 TB was found to be pregnant. The pregnancy was subsequently terminated. A DNA sample demonstrated that the offender was the father.
The victim impact statement prepared by TB’s mother discloses the significant trauma and damage suffered by TB as a consequence of becoming pregnant and having a termination. Not only was there a significant period of emotional trauma when making the decision to terminate the pregnancy but she had complications during the termination and lost a substantial quantity of blood. She subsequently had to have vitamin E injections and has lost a lot of weight. She has been required to be prescribed high doses of anti-depressant medication as she was suffering from anxiety and regular panic attacks, as well as suicidal thoughts. It is clear from the facts disclosed in the victim impact statement that the consequences of the offender’s conduct are likely to continue for some time. It is clearly something to which this young child should never have been exposed. The victim impact statement also makes clear that the offending conduct has had broader impacts upon TB’s parents and siblings.
Subjective circumstances
After 22 January 2016 the offender was at conditional liberty subject to a suspended sentence and good behaviour order for a period of two years.
Although the offender has been in custody since 13 June 2016, most of that time has been served as sentences for other offences. The offender has been in custody since
5 June 2017 in relation to the present offences. That is a period of 141 days including today.
The offender was 18 years old at the time of the offending conduct. Notwithstanding his relative youth, there was a significant age difference between him and his victims. The relationships between the offender and TB and TT were relatively short-term. The agreed facts contain conflicting indications as to whether the offender was principally motivated to enter the relationships in order to obtain sex. I sentence him on the basis, consistent with the evidence, including the evidence in the victim impact statement, that he was engaged in a genuine, if immature, relationship with each of the victims. Because of the age of the victims and the difference in age between the victim and the offender, there was a degree of power imbalance between them. Both involved unprotected sex which carried with it the risk of pregnancy and disease. The former risk manifested itself in relation to the victim TB. These factors mean that the objective seriousness is not in the low end of the range. In my view the offences in relation to TT should be characterised as being at the lower end of the mid-range of objective seriousness and the offences in relation to TB should be characterised at the mid-range of objective seriousness because of TB’s age and the consequences that followed from the offender’s conduct.
The offender has a not insignificant criminal history. In the ACT the most serious offence is an aggravated robbery, but that occurred after the offences in question and I do not take it into consideration. He has seven offences of furious, reckless or dangerous driving, one of which was an aggravated offence. He also has a number of offences of failing to stop when signalled by a police officer. The driving charges each involved a sentence of imprisonment.
In New South Wales he has been given bonds on two occasions for taking and driving a vehicle without the consent of the owner and a bond for failing to stop for police.
It must be noted that there are no previous sexual offences.
A report prepared by Dr James Huntley, a psychologist, dated 23 December 2015, was tendered. This was a report prepared for the purposes of sentencing in relation to the driving charges to which I have referred.
It discloses in relation to the history of the offender that he started using cannabis and tobacco at the age of 14. The age at which he left school is not disclosed. He worked at Supabarn in Canberra. He started increasing his cannabis use which lead to more occasions when he called in sick at work and eventually he lost his job. He started using heroin and was kicked out of his father’s house, and subsequently lived with a friend in Queanbeyan. He had a bicycle accident at the beginning of 2014, the consequences of which were suggestive of a mild to moderate brain injury. The offender recounted that the injury from the accident changed him in that he made more self-centred decisions, took more drugs, engaged in superficial relationships, and lost motivation to settle upon and maintain goals. He lived in refuges for the homeless. He has previously been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’), a borderline personality disorder and has had an episode of psychosis. He has been assessed with an IQ of 75 indicating a borderline mild intellectual disability. The report of Dr Huntley involved an interview and a psychometric assessment. It also refers to previous investigations. It indicates that the factors influencing his behaviour at the time of the previous offending conduct was:
diagnosis of mild intellectual disorder;
ADHD;
poor psychosocial background;
significant history of heavy and prolonged illicit drug and alcohol use;
psychiatric diagnoses of conduct disorder and borderline personality disorder traits, as well as dysthymia and suicidal ideation with multiple attempts.
The report states that “the current assessment of cognitive function suggests the further influence of focal damage to the areas of the brain involved in organisation, impulse control, and higher-level executive function.”
Unsurprisingly the report indicates that the offender is less likely to reoffend when he does not have access to illicit substances, when he is supervised in taking prescribed medication, when the influences on his behaviour are positive, progressive and mature and have his best interests at the core, when he has a stable home life and positive relationships, and when he has structure in his daily life that caters to his poor organisation skills, poor memory, mental tracking and confusion.
A letter from the offender’s mother provides further evidence about his mental health. She refers to his ADHD as well as his impulsive and difficult behavioural conditions. These commenced at birth and were reflected in “poor emotional control, serious anxiety, low self-esteem, an inability to develop adequate general life management skills and an inability to fit into normal society”.
Her evidence is consistent with the relationship with TT having the permission and support of TT’s parents. It is also consistent with the relationship with TB, being one which involved genuine affection. Significantly she says that the offender has “always acted and displayed immaturity at approximately 6-7 years under his actual age”.
The subjective circumstances of the offender, in particular his youth, mean that he is entitled to some leniency and that some emphasis should be given to the prospect that he may be rehabilitated so as to not sink further into the spiral of offending conduct and incarceration. I have taken into account the diagnosis of mild intellectual disability as reducing somewhat his moral culpability for the offending conduct. However the offences are very serious ones bearing maximum penalties of 14 years imprisonment. They occurred shortly after his release from prison and when he was at conditional liberty – a time at which his consciousness of the consequences of offending should have been greatest.
I have not accepted the submission made on behalf of the Crown that there should be little concurrency because each offence was a distinct one. I consider that, insofar as the two victims were concerned, the offences relating to each involved a similar course of conduct and hence there should be a substantial degree of concurrency between the offences.
The offender pleaded guilty at a relatively early stage. The Crown case was a strong one. The plea of guilty certainly has significant utilitarian value. In the sentences that I will shortly announce, I have allowed an approximately 15 per cent reduction of the period of imprisonment on account of the plea of guilty and have also taken that into account in when setting the nonparole period.
I have taken into account that the offender will be listed on the sex offenders register.
In relation to each offence involving TT, I will impose a sentence of six months of imprisonment. These offences will be concurrent except as to one month. In relation to the sentences involving TB, I will impose a sentence of 12 months imprisonment in relation to first offence and 15 months imprisonment in relation to the second offence. The factors of significance are the reduced age of the victim and, in relation to the second offence, the fact of that no condom was used and pregnancy resulted. The sentences will be concurrent except as to four months. This leads to a total sentence of imprisonment of 24 months. I will set a shorter than usual nonparole period of 12 months. This will give the offender the opportunity of a relatively early release date but also allow assessment of his conduct in prison. The sentence will be backdated to commence on 5 June 2017 to take into account time in custody attributable only to these offences.
Orders
The orders of the Court are:
On charge CC2017/4208, the offender is convicted and sentenced to 6 months imprisonment commencing on 5 June 2017 and ending on 4 December 2017.
On charge CC2017/4209, the offender is convicted and sentenced to 6 months imprisonment commencing on 5 July 2017 and ending on 4 January 2018.
On charge CC2017/4449, the offender is convicted and sentenced to 6 months imprisonment commencing on 5 August 2017 and ending on 4 February 2018.
On charge CC2017/4229, of the offender is convicted and sentenced to imprisonment for a period of 12 months commencing on 5 February 2018 and ending on 4 February 2019.
On charge CC2017/4230, the offender is convicted and sentenced to imprisonment for a period of 15 months commencing on 5 March 2018 and ending on 4 June 2019.
The nonparole period is from 5 June 2017 until 4 June 2018.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop, Associate: Date: 30 October 2017 |
0
1