Shona Rae Davis v Tara-Lee Feeney
[2018] ACTMC 10
•15 May 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Shona Rae Davis v Tara-Lee FEENEY |
Citation: | [2018] ACTMC 10 |
Hearing Dates: | 10 May 2018 |
DecisionDate: | 15 May 2018 |
Before: | Magistrate Fryar |
Decision: | See [29] |
Catchwords: | CRIMINAL LAW – act of indecency upon a person under 16 years – purposes of sentencing – non-conviction order – inappropriate to include offender on child sex offenders register |
Legislation Cited: | Crimes Act 1900 (ACT) s 61 (2) Crimes (Child Sex Offenders) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 17 |
Cases Cited: | Balthazaar v R [2012] ACTCA 26 Mearns v Neill [2016] ACTSC 36 Proud v Sladic [2014] ACTCA 26 R v Ang [2014] ACTCA R v CV [2013] ACTCA 22 |
Parties: | Shona Rae DAVIS (Informant) Tara-Lee FEENEY (Defendant) |
Representation: | Ms M Smith (Informant) Ms B Dunne (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid (Defendant) | |
File Numbers: | CC 18/2366 |
MAGISTRATE FRYAR
The defendant comes before me for sentencing after pleading guilty to one count pursuant to the Crimes Act 1900 (ACT) s 61 (2), of committing an act of indecency upon a person under the age of 16 years namely 15 years of age. I have been asked by the defendant to consider exercising my discretion pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) to not record a conviction in the matter.
The Offence
The facts of the matter are that at about 4.00am on Sunday 24 December 2017, the complainant, who was 15 ½ years old at the time of the incident, and her friend, Mr Faulkner, went to civic to collect Mr Faulkner’s friend, Mr Burns, to drive him home. The complainant was seated in the front passenger seat of Mr Faulkner’s car. The defendant, a friend of Mr Burns, got into the passenger side rear seat. The defendant and the complainant did not know each other.
As Mr Faulkner drove along Parkes Way there were comments made about the complainant’s age. The defendant made a derogatory comment, which upset Mr Faulkner. He continued to drive his car in the direction of Holt and put on some music.
A short time later the defendant reached her arms forward towards the complainant and placed her hand on the breast of the complainant. As she was doing so she said words to the effect of, “Do you approve of this?” This action occurred over the clothing that the complainant was wearing at the time.
Mr Faulkner indicated his displeasure with what the defendant had done, also commenting that he should kick both the defendant and Mr Burns out of the car right there. The defendant immediately became very upset and began to cry and apologised to the complainant and to Mr Faulkner. There was no further incident and Mr Faulkner dropped both Mr Burns and the defendant at the address in Holt.
About 7.00pm that day the complainant and her mother attended the Belconnen police station and made a complaint. In her complaint the complainant said that the defendant placed pressure on her breasts but she did not make further movements such as fondling or caressing.
The defendant took part in a record of interview with the police expressing her extreme remorse for her actions. She told police that she is normally medicated for depression and anxiety however she had not taken her medication for some time. She is a single mother of 2 children and does not have a current custody arrangement with the children’s father so he takes care of them on an ad hoc basis. The children were with their father on the night of this incident and the defendant had consumed a lot of alcohol. She admits that her alcohol consumption and not taking her medication may have led to a reduced capacity to make sound decisions. She stated she would not commit the act again and has learnt her lesson.
Unusually included on the statement of facts was the following paragraph, “Police have considered issuing a police caution to the defendant for the commission of this offence. The complainant and her mother are not in agreement with this course of action and the complainant stated she wished to proceed to a prosecution.”
Evidence
I was, of course, provided with the Statement of Facts in the matter, and I was advised that the defendant had no criminal history. The prosecution also provided me with a Victim Impact Statement prepared by the young complainant. In it she said that when the incident happened, “I was really uncomfortable, nervous, upset and a little bit angry. I was stressing about it all and completely shocked that it happened.” She stated it was really intense and confronting to speak to the police about it. She says that she is now extremely wary in cars with people that she does not know and that she is more cautious and anxious around strangers.
10. The defence tended a report from the defendant’s general practitioner who stated, “She had significant depression/anxiety and from what I have gathered during a few consults she has been under a lot of stress and has, from her own account, been non-compliant with medication and overdoing alcohol.”
11. I was also provided with several character references from people who know the defendant well. The first was from her uncle who advised inter-alia, the defendant was reliable, trustworthy and brutally honest and well loved by all. In his opinion she was a beautiful young woman and a fantastic mother to her 2 children. He said that the defendant is extremely remorseful for what happened and is highly embarrassed, so much so that she has only told a selected few members of her family.
12. The other reference was from a friend and fellow student at the Canberra Institute of Technology. He described her as a diligent student, a dedicated parent to her two young children, and an active participant in the local school community. He said that she has always displayed a high degree of integrity, responsibility and respect in all interactions he has observed. He advised that to his knowledge the defendant has, since January 2018, actively reengaged with her doctor, has recommenced her correct dosage of prescription medication and has limited her alcohol consumption. He has found her to be a person of good character and despite turmoil in her personal life, she strives to maintain a positive outlook and to participate wholeheartedly in her community.
Submissions
13. Ms Dunne, on behalf of the defendant, stated that the defendant was seeking that no conviction be recorded against her name. She was instructed that the defendant had no explanation for her offending behaviour but said that she was highly intoxicated at the time and it seemed to be a drunken lark. It was submitted that there was no intention to obtain sexual gratification and on the scale of objective seriousness this offending fell at the lower end. Ms Dunne pointed to the defendant’s mental health problems, the fact that she is a single mother of two young children, and that people speak highly of her character. She has no criminal history and was completely mortified by her actions. She was also instructed that the defendant understood the impact her actions had on the complainant.
14. The defence relied on the ACT Supreme Court case of Mearns v Neill [2016] ACTSC 36, a decision of Penfold J. This was a decision where Her Honour, in a situation not dissimilar to this one, for the same kind of offence, held that a non-conviction order was entirely appropriate. The defence submitted that having regard to the defendant’s personal circumstances combined with the nature of the charge, a non-conviction order would be appropriate. Finally, it was submitted that the recording of a conviction would have an impact on the defendant’s future employment, in particular if she decided to re-join the public service.
15. The prosecution opposed the making of a non-conviction order in this case. Ms Smith submitted that the maximum penalty for the offence was a term of imprisonment of 10 years. It was confronting behaviour against a 15 year old child and I should take into account the harm to the victim. Of course, it is a balancing exercise but there were no extenuating circumstances in the context of the offending behaviour. No doubt the defendant has a problem with alcohol but that is no excuse or reasonable explanation for the conduct in question. As for the submission concerning the impact on the defendant’s employment Ms Smith said that I had been given no evidence in that respect, and submitted that general deterrence must be a significant consideration in sentencing in this matter.
The Law
16. The recording of a conviction is the usual outcome of a finding of guilt (Balthazaar v R [2012] ACTCA 26; Proud v Sladic [2014] ACTCA 26). It is, however, the case that there is no restriction on the types of offences in respect of which non-conviction orders can be made.
17. Of course Penfold J pointed out in Mearns that the sentencing court must consider properly the provisions of s 17. This section does not set out criteria for a non-conviction order but, rather, points to matters that must be considered. It is not that there are certain conditions or criteria that must be satisfied before there is power to make a non-conviction order.
18. The provision is relevantly as follows:
17Non-conviction orders – general
(1) This section applies if an offender is found guilty of an offence.
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b) the seriousness of the offence;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
19. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005, and besides recognising the harm to the victim and the community, it includes: to ensure adequate punishment in a way that is just and appropriate; deterrence both general and personal; protection of the community; the rehabilitation of the offender; accountability and denunciation.
20. In Mearns Penfold J, before making a non-conviction order, had regard to matters such as the inexplicable nature of the offence, coupled with the emotional distress the defendant was undergoing at the time; the dramatic impact of a conviction on the defendant’s future employment prospects; and further took into account the fact that the offending conduct fell at the low range of objective seriousness, the circumstances of the defendant including the recent death of his son, that he was taking medication for sleeplessness and anxiety, that he had a prior a good relationship with the victim, he was of previous exemplary character, and he had lost his previous employment as a result of the offending behaviour. Her Honour also referred in passing to other decisions such as the decision of the Court of Appeal in R v Ang [2014] ACTCA 17 where the court held, inter-alia, that the consequences or possible consequences for the defendant of the recording of a conviction was not an irrelevant consideration.
21. A further matter that is, in my view, an entirely appropriate and important consideration in this matter, although it has not been raised by either the defence or the prosecution, is the fact that if the defendant is convicted of the offence she will become a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT). If a s 17 non-conviction order is made the defendant would not be subject to the consequences of being a registrable offender.
22. In the case of R v CV [2013] ACTCA 22 the Court of Appeal held that such a legal consequence of the recording of a conviction was a relevant consideration in the exercise of the statutory discretion provided by s 17. The Court also held the fact that the Crimes (Child Sex Offenders) Act has a protective, rather than punitive, purpose does not mean that it does not also have a punitive effect on the offender. In this regard the purpose of the Crimes (Child Sex Offenders) Act (as set out in section 6 (1)) is stated as, inter-alia, to:
(b) require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time –
(i) to reduce the likelihood that they will reoffend; and
(ii) to facilitate the investigation and prosecution of future offences that they may commit; and
(c) prevent registrable offenders working in child related employment; and
(d) prohibit registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children.”
23. In paragraphs 31 and 32 of R v CV the Court of Appeal set out some of the consequences of being a registrable offender under the Act. That included that the offender would commit an offence (punishable by 2 years imprisonment) if she applied for ‘child related employment’ or was reckless as to whether the employment was child related (section 126). The definition of employment includes undertaking practical training as part of an educational or vocational course. Child related employment includes educational institutions for children and work-related training contracts under the Training and Tertiary Education Act 2003. There would also be reporting requirements such as being required to report her personal details within seven days after being sentenced and annually thereafter for seven and half years in person to the chief police officer at an approved reporting place. Further, if within that seven and half year period, the offender left the ACT and intended to travel, not just overseas, but outside the Territory – even a short distance, such as to Queanbeyan – for seven or more consecutive days, a registrable offender is required to take all reasonable steps to report his or her travel details at least seven days before leaving. Failure to adhere to any of these reporting requirements amounts to an offence punishable by a fine of up to 500 penalty units or imprisonment for five years or both.
Consideration
24. Although an offence which has a maximum penalty of 10 years imprisonment is undoubtedly to be considered as a serious offence, and offending of this nature against a child must in my view always be considered cautiously, the offending conduct in this case in my opinion falls at the low end of the scale of objective seriousness for offences of this kind. There was no element of premeditation, it was simply impulsive and although any motive for engaging in such conduct is obscure, at least I can be satisfied that it was not for the defendant’s sexual gratification. The defendant herself is at a loss to explain her actions but the contact the defendant made with the breast of the complainant was momentary. An aggravating factor must be that the defendant was 32 years old and the victim was only a child of 15 years.
25. The defendant was immediately contrite and remorseful for her actions. Her remorse has been expressed on a number of occasions and I am satisfied that it is genuine. She pleaded guilty at a very early stage of the proceedings and for that she is entitled to a significant discount on any penalty to be imposed. I do not consider that specific deterrence is a necessary purpose of this sentence.
26. The evidence is that the defendant is otherwise a fine woman of good character and a good mother to her children. She is well regarded by those who know her. Her lack of prior criminal history certainly entitles her to be dealt with some leniency.
27. I accept that the actions of the defendant were out of character and apparently contributed to by the defendant’s high level of intoxication. No doubt the defendant suffers from depression and anxiety, and the evidence is that at the time of the offence she was not taking her prescribed medication for such conditions. The defendant agrees that she was at the time consuming excess amounts of alcohol. Of course, such a situation is no excuse for criminal behaviour nor a mitigatory factor, and it seems to be the case that the defendant could be assisted by some interventions in relation to alcohol consumption.
28. Although the impact of a conviction on potential future employment prospects for the defendant was not supported by definite evidence, it is not difficult to infer that a conviction for sexual offending may have negative influence on the defendant’s ability to obtain many different types of employment. In particular if she were to be a registrable offender by virtue of the recording of a conviction that consequence may have not only a burdensome effect on the defendant but also have added consequences for her children in relation to the defendant’s ability to continue to participate in functions at their school or in relation to their schooling. In my view such a consequence is not one that would be intended under the purposes of the Crimes (Child Sex Offenders) Act in a case such as this. I am satisfied that the consequences of becoming a registrable offender are out of all proportion with the criminality of the offending behaviour. Certainly the impact of a conviction being recorded on the children is a matter I must take into account under s 33 of the Crimes (Sentencing) Act.
29. Undoubtedly what the defendant did has had a detrimental impact on the victim and I take that into account. I am of the view, however, that balancing all the considerations I am required to, the appropriate outcome is a finding of guilt but without conviction, and the making of a good behaviour order for a considerable period of time with a short period of supervision by Corrective Services to ensure the defendant is appropriately supported and motivated to deal with any residual alcohol or other issues.
| I certify that the preceding twenty nine [29] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Fryar. Associate: Erin Priestly Date: 25 May 2018 |
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