Richards v The King

[2024] NTCCA 4

CITATION:Richards v The King [2024] NTCCA 4

PARTIES:RICHARDS, Aiden

v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 2 of 2023 (22115401)

DELIVERED:  22 March 2024

HEARING DATE:  2 June 2023

JUDGMENT OF:  Grant CJ; Blokland and Brownhill JJ

CATCHWORDS:

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive

Whether sentence manifestly excessive – Comparison of sentences imposed for similar offending – Individual sentences towards higher end of permissible range but within range when all circumstances considered – Minor degree of accumulation between individual sentences ordered – Appeal dismissed.

SENTENCING – Sentencing – Relevant factors on sentence – Factual basis for sentence

Whether sentencing judge erred in determining appellant was aware of victim’s age at the time of the offending by taking into account the appellant’s failure to give oral evidence at the sentencing hearing – Determination not based on appellant’s failure to give evidence – Material before sentencing judge allowed inference to be drawn beyond reasonable doubt that appellant knew victim’s age at material time – Appeal dismissed.

SENTENCING – Appeal against sentence – Mitigating factors – Plea of guilty

Whether sentencing judge erred by failing to consider appellant’s pleas of guilty and their value in mitigation – Failure to expressly quantify reduction granted for plea of guilty not an error – Sentences assuming higher starting point within range – Appeal dismissed.

Criminal Code 1983 (NT) s 127

Sentencing Act 1995 (NT) ss 5(2)(b), 5(2)(j)

Bugmy v The Queen (2013) 249 CLR 571, Edmond & Moreen v The Queen [2017] NTCCA 9, Forrest v The Queen [2017] NTCCA 5, Hili v The Queen (2010) 242 CLR 520, JKL v R [2011] NTCCA 7, Kelly v R (2000) 10 NTLR 39, Markarian v The Queen (2005) 228 CLR 357, R v Mills [1998] 4 VR 235, R v Olbrich (1999) 199 CLR 270, R v Verdins (2007) 16 VR 269, Strbak v The Queen (2020) 267 CLR 494, Xiao v R [2018] NSWCCA 4, referred to.

REPRESENTATION:

Counsel:

Appellant:S Robson SC

Respondent:  M Aust

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  25

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Richards v The King [2024] NTCCA 4

CA 2 of 2023 (22115401)

BETWEEN:

AIDEN RICHARDS

Appellant

AND:

THE KING

Respondent

CORAM:    GRANT CJ, BLOKLAND & BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered 22 March 2024)

THE COURT:

1. This is an application for leave to appeal and an appeal against sentences passed by the Supreme Court on 1 July 2022.[1]

2. Following pleas of guilty to three counts on indictment, the appellant was sentenced as follows:

   Count 1:Sexual intercourse (fellatio) with MK, a child under the age of 16 years, contrary to s 127(1)(a) of the Criminal Code. Convicted and sentenced to three years imprisonment.

   Count 2:Sexual intercourse (penile/vaginal intercourse) with MK, a child under the age of 16 years, contrary to s 127(1)(a) of the Criminal Code, convicted and sentenced to three years imprisonment. Three months of this sentence was ordered to be served cumulatively on the sentence of imprisonment imposed on count 1.

   Count 3:Sexual intercourse (fellatio) with MK, a child under the age of 16 years, contrary to s 127(1)(a) of the Criminal Code, convicted and sentenced to three years imprisonment. Three months of this sentence was ordered to be served cumulatively on the sentences for count 1 and 2.

3. The total effective term was imprisonment for three years and six months. The sentence was ordered to commence on 17 May 2021, to reflect the time the appellant spent in custody on remand. The balance of the sentence was suspended forthwith for two years on supervision and associated detailed conditions.[2]

4. All of the offending took place on 15 May 2021 in the context of an ongoing episode of sexual activity which included the offending acts: fellatio, penile/vaginal intercourse, followed by a further act of fellatio.

   Material before the Supreme Court

5. The circumstances of the offending[3] were that at the time of the offending, the victim was aged 14 years and the appellant was 20. The victim and the appellant were known to each other. A few months before the day of the offending, the victim was introduced to the appellant by the appellant’s girlfriend, LT. When LT introduced them, she told the appellant the victim was 14 years old.

6. After that introduction, the appellant and victim sometimes contacted each other via the Snapchat messaging application. On the morning of 15 May 2021, the victim contacted the appellant via Snapchat. The appellant invited her to his home. A number of the appellant’s friends were present in the living room of his home. When the victim arrived, the appellant told her to go into his bedroom. The appellant sat on a chair and pulled the victim over to him. She sat on his lap. He asked her for kisses and cuddles.

7. The conduct immediately relevant to count 1 is as follows. The appellant pulled the victim’s shirt up and removed her bra. He kissed her on the lips and sucked her neck. He fondled and sucked her breasts. He placed his hand around her neck. Throughout the offending he continued to have one of his hands on her neck. He stood up and removed his shorts and underwear to expose his penis. The victim allowed him to insert his penis into her mouth. She then performed fellatio until he ejaculated inside her mouth.

8. With respect to count 2, the appellant retrieved a mattress from the lounge room and took it into the bedroom. He asked the victim to remove her shorts and underwear. The victim complied and lay down on the mattress. The appellant engaged in sexual intercourse with her. He did not use a condom and did not ejaculate.

9. After the offending which formed the basis of count 2, the victim dressed and lay down next to the appellant. He rubbed his body against hers. The appellant removed his penis from his pants and placed one of the victim’s hands around his penis. The victim thought he wanted her to masturbate him so she kissed him on his neck to attempt to prevent engaging in that conduct. The appellant kissed the victim on her lips and sucked her neck. He then engaged in a further act of fellatio until he again ejaculated inside her mouth, which formed the factual basis of count 3.

10. On all three occasions the appellant had no reasonable grounds to believe the victim was 16 years old.

11. Shortly after the offences were committed the appellant’s friend AC knocked on the bedroom door. The appellant allowed him into the room and told him he had a girl in the room. The victim was hiding behind a desk and the appellant told her to come out from hiding. AC suspected she was under 16 years old and asked her how old she was. She told him she was 14. AC told the appellant he should not be having sexual intercourse with her because she was too young. The appellant said they were only ‘mates’ and told the victim not to tell anyone what had happened.

12. Sometime after the discussion with AC, the appellant drove the victim to the home of her friend, AT. Later, the victim and AT caught the bus back to the appellant’s home. They were informed the appellant was not home. Nevertheless, they were invited inside by KLT. They watched television until they both fell asleep. Later the same evening the appellant woke both the victim and KLT up and took them into his bedroom. All three slept the rest of the night in his bedroom. Throughout the night the appellant hugged the victim and at times KLT. On some occasions he rubbed his body against the victim’s body. The victim and KLT left the appellant’s home the next morning and walked to the Palmerston library.

13. Later the same day the victim disclosed what had taken place to her boyfriend LM. LM called the police to formally report the matter on the victim’s behalf. The victim participated in a recorded interview with police and cooperated with forensic procedures undertaken at the Sexual Assault Referral Centre. As a result of the testing, the appellant’s DNA was identified on her underwear and in her vagina. 

14. The victim also disclosed the offending to LT. The victim told her she did not know what to do in the situation in which she found herself with the appellant and so she complied with the appellant’s requests.

15. The appellant was arrested at his home on 17 May 2021. He declined to participate in a record of interview with police. He remained in custody from 17 May 2021 until 1 July 2022, the date of sentence.

16. A victim impact statement was tendered during the plea hearing. The victim’s mother described the victim’s emotional suffering and the stress which she said affected the victim’s mental state and wellbeing detrimentally. She also described the negative emotional impacts on members of the victim’s family.

17. A neuropsychological report authored by a clinical neuropsychologist was tendered in the proceeding.[4] The diagnostic conclusion was that the appellant demonstrated a globally reduced level of cognitive function with the majority of scores from testing in the borderline range or below.[5] His full scale IQ score of 67 was reported as being in the extremely low range. The areas of particular impairment were said to be in the higher attentional abilities, verbal memory and aspects of executive functions. Ultimately the opinion expressed was that the appellant’s neuropsychological profile was consistent with an established diagnoses of mild intellectual disability and attention deficit hyperactivity disorder (‘ADHD’). The neuropsychologist also noted the appellant was acutely suicidal with a complex history of chronic suicidality, poor coping and a history of complex trauma. He had been exposed to physical violence from birth and into childhood and adolescence. The report detailed the consequences of exposure to trauma on brain development and other physiological systems. The neuropsychologist concluded the symptoms of intellectual disability and ADHD were likely significant contributors to the offending behaviour.[6] She noted, among other recommendations, that the appellant had been approved as a participant of the NDIS.

18. The report concluded with the observation the appellant was aware that sexual activity with a young person was wrong.[7]

19. On the issue of knowledge of the victim’s age, an addendum report from the neuropsycholgist was obtained. The appellant told her that when he saw the victim, he thought she looked 16 or 17.[8] This issue was explored in some depth by the sentencing judge and has some relevance to the issue raised by Ground 2, which is discussed below. The appellant was reported to have expressed regret for his actions. However, it was also reported he placed the blame primarily on other people. The neuropsychologist said the appellant accepted that he would need to approach future relationships differently and was willing to seek guidance from trusted elders and formal support services.

20. The conclusion as to his cognitive state was expressed as follows:

    Cognitively, [the appellant] has significant impairments which reduce his capacity to fully appreciate the intangible harms caused by his actions (especially psychological harms). He has some insight into his own cognitive limitations but does not fully appreciate how these contributed to his actions. He would benefit from further, direct education about how his symptoms of [intellectual disability] and ADHD impact his social interactions and strategies to improve his capacity in this regard.[9]

21. An NDIS approval letter and NDIS plan summary were also tendered during the plea hearing.[10]

22. Two emailed letters which supported the submission concerning the deprived and abusive nature of the appellant’s childhood and the effect of that background on him were tendered to the Court.[11] One was from his mother and one from his foster carer.

23. A pre-sentence report was ordered and obtained.[12] The appellant was not initially considered suitable for supervision. A later report obtained pursuant to s 103 of the Sentencing Act assessed him as suitable for general supervision.[13]

24. An institutional report from Darwin Correctional Centre was obtained which detailed the appellant’s security classification, minor incidents or breaches of discipline, limitations on his access to programmes while on remand, his employment as a carer within the prison and the recording of four ‘at risk’ episodes.

25. The appellant had no criminal history.

    The sentencing remarks

26. The sentencing judge commenced his remarks by referring to a number of features relevant to the appellant’s subjective circumstances. He detailed the appellant’s difficult background. He had regard to the physical abuse perpetrated by the appellant’s biological father on his mother when she was pregnant with him and stated that as a result the appellant was born prematurely and hospitalised for five weeks after birth. He was physically abused by his biological father from infancy.[14] The appellants’ difficulties at school were identified with respect to both academic progress and behaviour. His Honour noted the appellant was approved for the receipt of disability services in year five and that in his early years he engaged with a number of services.

27. The Judge said that, at about 13 or 14 years of age, the appellant moved to Darwin with his family. Disability services ceased when he arrived in the Northern Territory. Domestic violence perpetrated by his stepfather was identified by a paediatrician.[15] At 15 he was placed in foster care and had a positive relationship with his carer. Between 15 and 18 he obtained his driver’s licence, his school attendance increased and he saved $3000 to buy a car. He was taken off medication and completed a VET Certificate I and a Diesel Mechanic Certificate II. He worked on a casual basis for his foster carer. At 18 the appellant moved back to live with his mother and stepfather. When his mother, stepfather and half siblings left Darwin in 2020, the appellant remained in Darwin and continued to live in the home rented by his mother.

28. In terms of events closer to the date of the offending, the sentencing judge said that in early 2021 the appellant became friends with a group of adult teenagers. They frequently stayed overnight although none of them paid rent yet. The appellant referred to them as ‘house mates’. The home became a regular location where the group drank alcohol and smoked cannabis. Before meeting the group the appellant seldom drank alcohol. After being with the group he began drinking daily, which continued up until the time he committed the offences.

29. The sentencing judge set out the agreed facts which are summarised above and confirmed the appellant admitted the truth and accuracy of the facts.[16] His Honour also set out the following parts from the victim impact statement which was submitted on behalf of the victim’s mother:[17]

    The emotional suffering that MK has had to endure because of this cruel act is heartbreaking. MK lost her sense of safety. She has lost trust in others and she felt helpless in her situation. She feels betrayed and shocked and cannot believe that it actually happened. She has been angry and frustrated and her sense of worth is gone.

    MK experiences recurring thoughts of the incident, playing over and over in her head. She has become detached from her family and friends and does not enjoy being around gatherings and events that she used to enjoy with family.

    MK’s mental state is not good because of this incident... she does not feel as though she can deal with this trauma and feels unworthy of her life.

    MK has multiple daily stressors that affect her wellbeing and mental state and overwhelm her to the breaking point... Her behavioural issues have been excessive and worrying towards her family and friends ...she is trying to distract herself from what has happened and is constantly down.

    This incident has not only affected MK but it has also affected her family. MK's younger siblings see MK upset, crying, and taking her frustrations out on her parents, and they don't understand. MK had a great relationship with all her siblings, as well as her father and myself. Now because of this, relationships are strained because this incident has changed her. As a mother, when something like this happens to your child, you feel like you have let them down. As a parent, your main job is to protect your child, and I could not do that.

30. During the plea hearing an issue arose because of statements made by the appellant to the neuropsychologist to the effect that at the time of the offending he had forgotten that he was told the victim was under 16 years. The sentencing judge rejected the assertion that the appellant forgot he had been told the victim’s age and did not know her age. By reference to the agreed facts the sentencing judge determined that little weight should be given to contradictory parts of the neuropsychological report including the addendum report.[18] His Honour found beyond reasonable doubt the appellant was aware that the victim was under 16 years. He also found the appellant lacked the capacity to understand the harm that may be caused to girls if they have sexual intercourse while they are under the age of 16 years.[19]

31. To emphasise that he had taken into account the appellant’s deprived upbringing, his relative youth and limited cognitive capacity, the sentencing judge remarked, “This is a case in which the principles of Bugmy, Mills and Verdins apply”.

32. His Honour set out portions of the neuropsychological reports dealing with that subject in substantial detail and concluded as follows:[20]

    In all the circumstances, it seems to me that the appropriate sentencing disposition is a disposition which, to some degree but a moderated degree, reflects the need for deterrence in such matters, denounces the conduct, and recognises that young girls must be protected from such activities. However, it is in the interests of the community to endeavour to put arrangements in place to try and ensure that the offender can be successfully reintegrated into the community and is given the utmost assistance to do so. It is apparent he has accepted responsibility for what he has done.

33. Immediately before passing the sentence the Judge again referred to the case law relevant to deprived background, cognitive impairment and mental health issues and stated: “Those factors that I have raised, in particular, the Bugmy, Mills and Verdins issues, are significantly mitigatory.”

    Ground 1: Mannifest excess

34. Ground 1 asserted that the sentences of three years imprisonment on each count and the total sentence of three years and six months imprisonment were manifestly excessive and, in particular, that the sentencing judge gave insufficient weight to the appellant’s deprived background, youth and cognitive impairments.

35. The principles governing an appeal against sentence based on this ground are well known. A sentence is not to be disturbed on appeal unless error is shown. The presumption is that there is no error. Appellate intervention is warranted only where the sentence is such that in all the circumstances the appellate court concludes error must have occurred or there must have been some misapplication of principle even though it is not apparent from the reasons or remarks on sentence.[21] Manifest excess may be identified if the sentence imposed is out of the range of sentences that could have been imposed to such an extent that there must have been error even though it is impossible to identify.

36. To determine whether a sentence is manifestly excessive or manifestly inadequate requires consideration of all of the matters relevant to fixing a sentence.[22] An appellate court cannot simply substitute its own opinion for that of the sentencing judge. There is no one correct sentence. Sentencing judges are to be afforded as much flexibility when sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime.[23]

1. Counsel for the appellant on appeal made the observation that the sentencing judge did not express a view on where the offending fell on the scale of objective gravity.[24] His Honour was not obliged to identify or use any particular form of words to express his view on the gravity of the offending. The process of instinctive synthesis eschews formulaic sentencing reasons or remarks. In any event the sentencing judge made reference to the salient features of the case relevant to objective gravity in his remarks.

2. On any view this was a serious example of offending of this kind. Unlike a number of cases involving young people as perpetrators and victims, there was no relationship of significance between the appellant and victims. They knew each other but the facts reveal they were introduced only a few months before the offending and since that introduction there had been only messaging via Snapchat. Whatever the status of their acquaintance, they were not romantic partners. There was no suggestion of mutual support.

3. At 14 years of age, it was not as though the victim was just about to turn 16. Unlike some cases, she was not close to the age of consent. Given the appellant was 20, the age disparity between the victim and the appellant was of some significance. It was unlike many cases where the offender is merely two to three years older. However, it is acknowledged the offending is not in the same category as offending by a much older mature adult. Some hesitancy or uncertainty on the part of the victim is evident in the agreed facts relevant to count 3. Bearing in mind the young age of victim, the acts of fellatio which ended with ejaculation into the victim’s mouth had a degrading and confronting element. The victim’s engagement with the various sexual acts was clearly at the direction and control of the appellant.

4. The victim disclosed what had happened shortly afterwards. She told LT she did not know what to do in the circumstances she found herself in. The victim impact statement reveals the detrimental impact on her emotional wellbeing, which is the very detriment the law is designed to protect young women and girls from. A sentencing court is obliged to have regard to the emotional harm done to a victim.[25]

5. In addition, the appellant was dealt with for three separate counts. While in some comparable cases multiple acts would be rolled up into one count, the fact that there were three instances, rather than a single instance, of prohibited sexual activity elevated the objective seriousness of the offending. Those features in combination meant the offending could properly be dealt with as a serious example of offending against s 127 of the Criminal Code.

6. The comparative sentences relied on by the appellant demonstrate that the sentences imposed in this matter are somewhat higher than some sentences imposed in similar cases dealt with under s 127 of the Criminal Code. Seven comparative sentences which involved victims who were 13 to 14 years old and offenders aged from 18 to 23 years old attracted sentences of imprisonment in the range of 9 to 14 months following a plea of guilty.[26]

7. Counsel for the appellant also referred the Court to two comparative sentencing tables which included notes of sentencing remarks.[27] Table 1 included cases where the offender was aged 18 to 24 years and Table 2 included cases of offenders who were 25 years or older.

8. Of the 71 sentences compiled in Table 1, only two matters have head sentences of over three years. In relation to Table 2, of the 39 sentences passed, eight had sentences of three and a half years or above. Of 31 sentences that included head sentences of under three and a half years, approximately half of the offenders were over the age of 30 years.

9. It is acknowledged that sentences for offending against s 127 of the Criminal Code with the following characteristics have generally resulted in sentences of less than two years imprisonment, often around one year and seven to eight months imprisonment. First, the sentence follows a plea of guilty. Second, the offender is in their late teens or early 20s. Third, the victim is between 13 and 16 years. Fourth, the context of the offending is within a relationship or the victim and offender are in some way acquainted. Fifth, there is an absence of aggravating features such as a breach of trust, pregnancy or a sexually transmitted infection. Sixth, the offender has no criminal history or no relevant sexual offending.

10. Although the offending here possessed some of those characteristics, it does not follow that the resulting sentence fell outside the permissible range. We have emphasized already the matters which mark the seriousness of the offending. The sentence is towards the outer limit of the range for offending of this kind, however we have concluded when all of the circumstances are considered, it is not manifestly excessive. The process of fixing a sentence is not to be reduced to the application of a mathematical formula. While the examination of the range of sentences is useful, there is no set tariff for offending of this kind.

11. Counsel for the appellant contends that if the appellant’s age, his cognitive deficits and deprived circumstances throughout this life were accepted, this should have led to a sentence that was less than the term imposed. It was argued those difficulties served as a countervailing factor in moderation of the gravity of the offending.

12. We have highlighted above how the sentencing judge took into account the appellant’s cognitive impairment and difficult personal circumstances from a young age. The sentencing judge acknowledged he would apply the principles drawn from Bugmy v The Queen,[28] R v Verdins[29] and R v Mills.[30] He discussed the appellant’s cognitive impairment in detail, in terms of its nature, extent and effect as required by Verdins.[31] The appellant’s deprived background may be taken into account as a mitigating factor,[32] by moderating the more punitive elements of sentencing. The sentence was moderated to some degree. It is clearly the case, as the sentencing judge acknowledged, that the interests of the community must still be served by the overall sentencing process. The exercise of the sentencing discretion requires a balance to be maintained between the competing considerations as occurred here.

13. The type of background the appellant endured is sadly a feature reflected in many cases before the Court. It would be unsurprising if many of the defendants in the comparative cases referred to above had experienced deprivations which are similar to those experienced by the appellant.

14. The sentencing judge chose to suspend the balance of the sentence forthwith, which illustrates a further way in which he took age, Bugmy and Verdins matters into account. The conditions of the suspended sentenced show the sentence was directed towards the appellant’s re-integration and rehabilitation. As well as standard conditions, the suspended sentence included a condition that the appellant reside at Banksia House and comply with a program organised by TeamHealth; that he participate in counselling through CatholicCare and the psychologists provided at ATAPs as organised through his general practitioner; and that he comply with a mental health programme developed by a general practitioner.[33]

15. In our view the suspended sentence and treatment conditions illustrate how the sentencing judge had regard to the difficult personal circumstances of the appellant, including his cognitive deficits.

16. The individual sentences were towards the higher end of the permissible range but were within range when all of the circumstances are considered. The sentences were largely concurrent with some minor degree of accumulation that might be expected. The overall final sentence properly reflected the course of criminal conduct. Ground 1 is not made out.

    Ground 2: Appellant’s awareness of the victim’s age

17. Ground 2 asserted that the sentencing judge erred when determining adversely to the appellant that he was aware of the victim’s age at the time of the offending by taking into account the appellant’s failure to give oral evidence at the sentencing hearing.

18. Counsel for the appellant acknowledged the agreed facts stated that the appellant had ‘no reasonable grounds to believe that the victim was or above, the age of 16 years.’ It may be accepted that part of the facts acknowledged no more than that the victim was in fact aged between 14 and 16 years at the time of the offences and that the appellant held no reasonable belief that she was aged 16 or more. Agreement with those facts is not determinative of the appellant’s subjective state of knowledge of the age of the victim given such awareness was in dispute.

19. Despite the appellant’s agreement with the facts which stated his former girlfriend had told him the victim’s age ‘a few months’ before the offending, the question remained whether the appellant had forgotten he was told the victim’s age.

20. If the Crown sought to prove the appellant’s subjective awareness, it was for the Crown to establish that matter beyond reasonable doubt.[34]

21. Aside from the agreed facts, the evidential material on this issue was contained in the neuropsychological report[35] and Addendum Report.[36] The appellant told the neuropsychologist that he had not recalled being told the victim’s age a few months prior to the offences. He also told her that both the victim and his former girlfriend had told him that the victim was 18 when they first met and he thought the victim was 16 or 17 because she smoked cigarettes and drank alcohol. Given that the appellant’s cognitive impairments included problems with verbal recall, it was submitted there remained a reasonable possibility that the appellant had forgotten what he was told by his former girlfriend.

22. The appellant relied on the following portion of the sentencing remarks in support of a submission that the sentencing judge erroneously relied on the failure of the appellant to give evidence when he concluded the appellant knew the appellant was 14:[37]

    The statements in the two reports of the neuropsychologists are highly contradictory. I am not prepared to give them any weight, particularly in circumstances where the offender elected not to give oral evidence about these issues. I do not accept the offender’s assertion that he had no recollection of his girlfriend telling him the age of the victim.

23. We reject the submission that the sentencing judge thereby fell into error. The sentencing judge was there commenting on the contradictions between the appellant’s self-reported statements and the inability to reconcile them satisfactorily. In those circumstances the comment should be seen as no more than pointing to the lack of clarity in the statements the appellant provided to the neuropsychologist. There was no further direct evidential material to assist the Court. No adverse inference was drawn against the appellant in the fact-finding process. There was ample additional evidence which the sentencing judge could draw upon to conclude the appellant knew the victim was 14.

24. We note the following passages from the Addendum Report which sets out the appellant’s thoughts as described to the neuropsychologist and some of her conclusions:[38]

    [The appellant] said that he knew prior to the offending that it was unacceptable to “sleep with younger girls” but he was unaware of the legal age for consent. When asked how old he guessed the victim was when he saw her, [the appellant] said he thought she looked 16 or 17. He recalled she “always has a pack of ciggies on her and she was drinking with my ex...I assumed she was older”. He also reported “when I see people drinking and smoking I think they’re over 17”. When asked why he thought this he replied “because you don’t see a 14 year old walking around with a pack of smokes and a can of alcohol...a young person can’t go in and buy smokes”.

    It remains my opinion (as stated in question 6 of the original neuropsychology report) that [the appellant’s] cognitive and behavioural impairments were significant causative factors on the day of offending. He said he did not recall being told the victim's age on the day of offending. This is consistent with his severe verbal memory impairment seen in real world settings and on formal testing. He takes in a very limited amount of information and struggles to retain this over as little as half an hour. He failed to learn the ages of people he lived with every day for months. It is not surprising that he did not learn and retain a single piece of information about a person he met only once, several months prior.

    On the day, his concrete, rigid thinking and his adherence to simple rules meant that he made assumptions about the victim's age which were incorrect. Namely, that because she was drinking and smoking, she was likely to be at least 16. He also failed to identify that her age was an important piece of information. He was not familiar with laws about sexual consent.

25. While this provided some of the information relevant to the appellant’s mental state, it was not the only evidence available on the issue. The neuropsychological report stated that the appellant was ‘distressed’ to find out that the victim was underage. The neuropsychologist reported:[39]

    This is consistent with the report that that the encounter ceased immediately and he transported her to a friend’s home elsewhere. It is not clear, then, why he reportedly attempted to engage her in a further sexual encounter later that evening. If this did indeed occur, [the appellant] stated that he was heavily intoxicated at that stage. The effects of acute intoxication would exacerbate all of his existing cognitive and behavioural impairments. He is also highly impulsive with very poor ability to consider the future consequences of his actions. This may partially explain his renewed attempts to engage with the victim later that evening.

26. The appellant’s statements to the neuropsychologist were not reliable and could be put to one side. An inference can reasonably be drawn from the balance of the material before the sentencing judge in the agreed facts that the appellant was aware the victim was 14. First, the appellant was told she was 14 a few months before the offending. Second, the appellant had no reasonable grounds to believe she was 16 years. Third, the appellant said he and the victim were only ‘mates’ when AC came into the room. Fourth, the victim was hiding until the appellant told her to come out from hiding, which was an indication he had orchestrated her hiding. Fifth, the appellant did not react with surprise or distress when AC asked the victim how old she was and she said she was 14. The combination of those facts and circumstances allowed an inference to be drawn beyond reasonable doubt that the appellant knew the victim’s age.

27. Even if there was error as alleged in the impugned part of the sentencing judge’s remarks (the reference to the appellant not having given evidence), reviewing the evidential material ourselves, we conclude that the finding that the appellant was aware of the victim’s age beyond reasonable was not in error. Ground 2 is not made out.

Ground 3: The guilty pleas

1. Ground 3 asserted that the sentencing judge erred by failing to consider the appellant’s pleas of guilty and their value in mitigation.

2. Leave was granted by a Judge of the Court to appeal on this ground.

3. The sentencing remarks contain no mention of any reduction in recognition of the pleas of guilty. The appellant argued the sentencing judge failed to consider the guilty pleas and the value to be attributed to those pleas.

4. Section 5(2)(j) of the Sentencing Act requires that a plea of guilty and its timing be taken into account.

5. While it may be desirable and in the interests of transparency that a discount be specified,[40] the failure to expressly quantify a reduction granted for a plea of guilty is not an error.[41]

6. Pleas of guilty are valuable in cases of this kind as a plea relieves young complainants of the stresses attendant on giving evidence. Nevertheless, failure to specify how the plea of guilty is taken into account is not an error.

7. Clearly the sentencing judge was aware the appellant pleaded guilty to the three counts as it is mentioned at the beginning of the sentencing remarks.[42]

8. The sentencing judge also remarked it was apparent the appellant had accepted responsibility for what he had done.[43] There was room for some debate about the extent of his acceptance of responsibility given the dispute over whether he was subjectively aware of the victim’s age. It would not be an error to lessen credit for the plea in those circumstances.

9. Although the sentences were longer than many sentences passed on other offenders, as discussed above, the gravity of the offending accounted for the resultant sentences. The sentences would still be in range if the starting point for each sentence here was in the order of four years and reduced because of the pleas of guilty. The sentences in the comparative tables discussed above were sentences which had been reduced because of pleas of guilty. Further, the suspension of some two-thirds of the total sentence indicates an acknowledgment of the pleas of guilty. Such a disposition would have been unlikely had the case gone to trial. Ground 3 is not made out.

   Orders

10. Accordingly, we make the following orders:

    1.Leave is granted to appeal on Grounds 1 and 2.

    2. The appeal is dismissed.

[1]    On 7 February 2023 a Judge of this Court granted an extension of time within which to appeal. Leave to appeal was refused on Grounds 1 and 2. Leave to appeal was granted on Ground 3.The appellant applies for leave to be considered and determined by this Court of Criminal Appeal with respect to Grounds 1 and 2.

[2]    The conditions of the suspended sentence are set out at AB 99-100.

[3]    Agreed Crown Facts: Appeal Book ("AB") 101-104.

[4]    AB 108-124.

[5]    AB 118.

[6]    AB 121.

[7]    AB 124.

[8]    AB 166.

[9]    AB 124.

[10]     AB 126-135.

[11]     AB 136-138.

[12]     AB 193-198.

[13]     AB 202-204.

[14]     AB 89.

[15]     AB 89.

[16]     AB 90-93.

[17]     AB 92-93.

[18]     AB 93-95.

[19]     AB 95.

[20]     AB 97-98.

[21]     Forrest v The Queen [2017] NTCCA 5 at [63]-[64]; Edmond & Moreen v The Queen [2017] NTCCA 9 at [4].

[22]     Hili v The Queen (2010) 242 CLR 520 at [60].

[23]     Markarian v The Queen (2005) 228 CLR 357 at 371.

[24]     Outline of submissions for the appellant, 18 March 2023.

[25]     Sentencing Act s 5(2)(b).

[26]     See table: ‘AR v The King – s 127 Sentences. Comparatives relied upon below’.

[27]     Table 1 ‘Comparative Sentencing Chart, 127 – Sexual Intercourse with a child under 16 y/o’ (Adult offender: age 18 y/o inclusive) (Victim: age 10 y/o – 15 y/o inclusive). Table 2 ‘Comparative Sentencing Chart, 127 – Sexual Intercourse with a child under 16 y/o’. Offender: (25 y/o and over) Victim: (10 y/o – 15 y/o).

[28] (2013) 249 CLR 571.

[29] (2007) 16 VR 269.

[30] [1998] 4 VR 235.

[31] (2007) 16 VR 269 at [8].

[32]     Bugmy v The Queen (2013) 249 CLR 571 at [37].

[33]     AB 99.

[34]     R v Olbrich (1999) 199 CLR 270; Strbak v The Queen (2020) 267 CLR 494.

[35]     AB 108-125.

[36]     AB 163-167.

[37]     AB 95.

[38]     AB at 166.

[39]     AB 122.

[40]     Xiao v R [2018] NSWCCA 4 at [280].

[41]     Kelly v R (2000) 10 NTLR 39 at [26] to [27]; JKL v R [2011] NTCCA 7 at [23]; Xiao v R [2018] NSWCCA 4 at [280].

[42]     AB 89.

[43]     AB 98.