DPP v Best

1. The young person, Michael Best (a pseudonym), is to be sentenced for the following offence to which he entered a plea of guilty on 14 February 2024: (i) SCCAN2024/7: sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT).

2. The offence carries a maximum penalty of 12 years of imprisonment.

3. The matter was first listed for sentence on 1 May 2024. On two occasions sentencing proceedings have been adjourned, primarily as a direct consequence of the young person’s failure to engage with youth justice services. While this has resulted in the finalisation of the matter being delayed by six months, it can largely be attributed to consistent instability in the young person’s personal circumstances and his lack of parental guidance, to which I will come below.

Facts

4. The offending occurred on 7 March 2023 when the young person was 15 years old. The victim was 14 years old.

5. In February and March 2023, the young person and the victim attended the same high school. As of March 2023, the young person was in a relationship with a former friend of the victim, Miss H, who also attended the same high school as the victim and young person. The victim and the young person were part of the same broader group of friends.

6. The young person and the victim became friends in or around February 2023. They began to communicate through the application ‘Snapchat’ and video call one another using ‘Facetime’. The victim and the young person both set their Snapchat messages to delete instantly upon the message being read by the recipient. The victim and the young person also communicated with their broader friendship group on Snapchat, with their messages deleting upon receipt.

7. By 4 March 2023, the calls and messages between the young person and the victim had become flirtatious and sexual in nature. Some of the video calls involved the young person touching himself in the shower while the victim showed the young person her breasts.

8. On 4 March 2023, the victim and her friend, Miss S, met with the young person in Gungahlin at around 11am. The young person and the victim discussed meeting again that evening. The young person told Miss S that he though the victim was “hot”.

9. That night, the victim’s friend, Miss A, stayed over at the victim’s house. During the evening, the victim used her mobile phone to converse with the young person. The young person and his friend, Master M, arranged to meet the victim and Miss A at a park near the victim’s house. They spent time together at the park until the victim’s sister picked up the victim and Miss A at around 11:20pm.

10. Between 4 and 7 March 2023, the young person and the victim continued to converse using Snapchat and Facetime. The young person told the victim that he wanted to “do stuff with her”.

11. During another conversation the young person asked the victim whether she was on the pill. When the victim replied she was not, the young person responded by saying “that is unfortunate as I really don’t want to use a condom”.

12. During this time, the young person and the victim had a phone call where they discussed meeting in a disabled public bathroom in Gungahlin to have sex. The victim thought she was ready to have sex with the young person so she “said yes to it”.

13. On the morning of 7 March 2023, while on her way to school, the victim told her friend Miss C about her discussions with the young person and their arrangement to have sex. Miss C told the victim, “I don’t think you should do it as he has a girlfriend”.

14. The victim arrived at school and attended her first class. She received a message from the young person asking her to meet him at the stairs in the school premises. The young person told the victim to ‘wag’ class and meet up with him and his friend, Master M.

15. The victim met with the young person and Master M, where she was convinced by them to leave school and go to Master M’s house. At this time the young person was residing at Master M’s house, with Master M’s father.

16. The three of them left school at around 11:30am and walked to the [redacted] shopping precinct where they caught a bus to Master M’s house in Watson.

17. Master M’s house is a two-storey townhouse, with two bedrooms and a study. The kitchen and living area are situated on the ground level and the upstairs area contains the bedrooms, study and a bathroom.

18. The young person was staying in the study in a double person camping swag.

19. The victim was wearing black shorts and her school top, underneath her clothing she was wearing a cream-coloured bra and pink underwear. The young person was wearing a red ‘Champion’ branded shirt, light grey shorts and a ‘Nike’ branded zip-up jumper.

20. Upon arriving at Master M’s house, the three of them went upstairs to the study. The young person then left the room and returned without his shirt on. The young person told Master M to leave the room.

21. The victim was first to get in the swag and the young person followed her in.

22. The young person started to kiss the victim and touch her body. The young person then removed his clothing and the victim’s clothing until they were both completely naked.

23. The young person penetrated the victim’s vagina with his penis, however, only part of his penis entered her vagina and it then fell out. The young person continued to try to penetrate the victim’s vagina with his penis, approximately five times, however was unable to penetrate her vagina completely. The young person was not wearing a condom at the time.

24. At one stage the victim told the young person that the penetration was hurting her vagina and causing a stinging pain, and that she was not sure whether she could “do it”. The young person then penetrated the victim’s vagina with his fingers.

25. The victim said to the young person that “they couldn’t do it while he was still dating [Miss H]”. The young person promised the victim that he was going to break up with Miss H, the victim responded by saying, “okay but I won’t do it without protection”.

26. The young person retrieved a condom in black packaging. The condom was black in colour while also being transparent. The young person put the condom on, then lay on top of the victim and proceeded to try to have sex with her however, was unable to penetrate her vagina.

27. The young person then shifted the victim so she was on top of him and began to touch her up and down her body while holding her close. From this position, the young person penetrated the victim’s vagina with his penis and continued to do so until he ejaculated. After the intercourse, the victim lay next to the young person before he got up to dispose of the condom.

28. The young person returned to the room and asked the victim if she wanted to have a shower. At first she declined and the young person said, “nothing is going to happen in there”, so the victim agreed. While in the shower, the young person and the victim kissed. They then dressed in towels and walked back to the study.

29. Upon return to the study the victim went into the swag to retrieve her clothes. The victim put her underwear on however the young person removed them. Commencement of offending

30. The young person then laid on top of the victim and tried to again engage in intercourse involving penile vaginal penetration. The victim told the young person “no” and tried to push him away. The young person did not listen to the victim.

31. The young person used his fingers to penetrate the victim’s vagina for approximately two minutes. During the penetration, the victim told the young person to “stop” and she moved his hand away, but he did not listen to her and continued to return his hand to her vulva area and penetrate her vagina with his fingers. While engaging in these actions, the young person kissed the victim on her shoulder. The victim told police that the digital penetration of her vagina “really hurt”.

32. The young person then penetrated the victim’s vagina with his penis. At points when the young person’s penis was not in the victim’s vagina, the young person engaged in digital penetration of her vagina with his fingers. This continued for approximately ten minutes.

33. Throughout the intercourse, the young person continued to tell the victim that ‘he wanted to do it and that he knew the victim also ‘wanted it’’. The victim responded to him by saying, “I don’t”.

Intervening act

34. Master M entered the room and the young person stopped penetrating the victim. Master M stood at the entrance to the room; he was not able to see into the swag. The victim picked up her mobile phone and began looking at ‘TikTok’ videos.

35. Master M conversed with the young person. While conversing, the young person continued to cuddle the victim and kiss her neck. The young person then told Master M to get out of the room.

36. After Master M left the room, the victim was able to put her underwear back on. She then laid on her stomach. The young person tried to remove the victim’s underwear, but the victim would not let him. The young person continued to try to penetrate the victim’s vagina with his penis and fingers while she was on her stomach, but the victim moved the young person’s hand away and told him to stop. The young person did not penetrate the victim at this time.

37. The victim turned to lay on her back and the young person laid on top of the victim. The young person then removed the victim’s underwear. The young person said to the victim that he wanted to have sex with her again, the victim told the young person that she did not want to.

38. The young person attempted to engage in penile vaginal penetration with her from behind. The victim told the young person “no”.

Resumption of offending

39. The young person attempted to penetrate the victim’s vagina with his penis but was unable to. The young person used his fingers to penetrate the victim’s vagina to try and find where he could put his penis. Following the digital penetration, the young person penetrated the victim’s vagina with his penis.

40. The victim continued to try to push the young person off her. After a while the young person stopped penetrating the victim, and just laid next to her and looked at his phone.

Other sexual conduct

41. At some point after the young person and the victim had showered, they engaged in other sexual activities not involving penile vaginal penetration.

Aftermath

42. The victim laid next to the young person for around 20 minutes before they got dressed, went downstairs and spoke with Master M. After around 20 minutes of conversation, Master M walked the victim to the bus stop at about 3:10pm.

43. While at the bus stop, the victim’s father phoned her and asked if she wanted to meet up with him after school and go to McDonald’s. The victim told her father that she had taken the bus to the suburb of Watson and asked if he could pick her up from there, which he agreed to do.

44. The victim’s father picked her up at the bus stop. He described her demeanour as normal and that she was dressed in her school shirt and black shorts. He told police there was no indication from their interaction that anything untoward had occurred. The victim’s father later dropped the victim to her mother’s house.

45. On 8 March 2023, the victim found out that after she had been with the young person, he had gone to the home of his girlfriend and “did stuff with her”. This made the victim feel used.

46. The victim made a report to police on 10 March 2023. As part of the police investigation the clothes worn by the victim on 7 March 2023 were seized. Young person record of interview

47. On 20 March 2023, the young person participated in a record of interview with police. His father was present at the time. During the interview, the young person told police that the sexual intercourse had been consensual.

Victim impact statements

48. Victim impact statements were provided to the Court from both the victim of the offending and her mother, each dated 19 April 2024. I am required to take into account the effect of the offending on the victim and the victim’s family: s 33(1)(f) and s 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).

Victim

49. The victim of the offending detailed the significant and varied impacts of the offending on her life. She remains fearful of seeing not only the young person in public, but also their once-mutual friends, from whom she fears she will suffer physical abuse. The victim has received threats to her safety from other students who are aware of the incident and has received dirty looks and verbal abuse when out in public, including from people she does not know. Even when in her home the victim does not feel safe as her house was ‘egged’ following her address being publicly shared.

50. The victim expressed that her self-confidence has suffered, and she now struggles with male interactions and relations, finding it hard to place trust in boys. She detailed having regular nightmares of the offending, and of the young person finding her and repeating his conduct.

51. Following the offending, the victim said she did not attend school for four weeks as her family feared for her safety. She decided to move to a new school so that she would “not feel terrified anymore”, however the rumours she faced at her old school followed her and students continued to call her derogatory names. The victim described having felt “fearful”, “alone” and that she continued to struggle with “self-hatred”.

52. The victim also described how the offending has impacted her family, placing significant strain on her relationship with her mother, resulting in her living full-time with her father for two months.

53. The victim detailed how she is currently seeing a social worker to help her process the offending and to increase her “self-worth, self-confidence and trust levels”. Victim’s mother

54. The victim’s mother detailed the lasting impact the offending has had on her daughter and their family. She said that her daughter is “terrified to leave [the] house unaccompanied”. She described the victim’s “lasting self-esteem and confidence issues”, and that her daughter has self-harmed since the offending.

55. The victim’s mother explained that, since the offending, the victim has had challenges with containing her temper which has resulted in arguments. This has greatly damaged her relationship with the victim. The victim’s choice to live with her father for two months left the victim’s mother “with feelings of deep sadness, anxiety and … that I had failed as a mother”. The “bullying and disgusting behaviour” the victim has suffered has had significant impacts on the victim’s family, resulting in their home being vandalised.

56. The victim’s mother expressed that her own depression and anxiety has been exacerbated by the offending. She has taken significant periods of leave from work to care for both the victim and for herself, including instances of leave without pay, resulting in a loss of income. Her leave balance is now so low that she must work even when she is unwell, as she cannot afford to not attend work. She has also missed out on opportunities for promotions and subsequent opportunities to better her family’s financial position.

Sentencing considerations

Nature and circumstances of the offending

57. I am required to assess the objective seriousness of the offending as part of considering the nature and circumstances of the offending. While an objectively serious offence by reference to the maximum penalty, there is a wide spectrum of conduct that can establish the offence.

58. Justice Mossop, in R v Palmer [2017] ACTSC 357 at [22] (applying Jurj v The Queen [2016] VSCA 57 at [80]) set out the following factors as relevant to assessing the objective seriousness of sexual offences: (a) whether the offence was premeditated; (b) whether the offender acted alone or in company; (c) how long the attack lasted and whether the victim was raped more than once; (d) whether the offending involved violence or threats of violence; (e) whether a weapon was used; (f) whether the victim was injured in the course of the rape; (g) whether the victim was humiliated or degraded; (h) whether the offender used a condom; (i) whether the victim was particularly vulnerable; and (j) whether the offender ignored warnings or protests by the victim.

59. The young person acted alone and there was no evidence of premeditation. The young person took advantage of the circumstance presented to him by virtue of the victim consensually engaging with him for his own sexual gratification, with little regard for the victim’s wishes or welfare. Offending of this type is inherently violent, the offending in this instance did not include any additional acts of overt violence, nor threats of violence and there were no additional acts of humiliation or degradation. The victim was only 14 years of age. That said, the young person was approximately 10 months older than her and the relationship itself was age appropriate.

60. The young person is charged with a single rolled-up count of sexual intercourse without consent which encapsulates multiple non-consensual acts of penetration which occurred on 7 March 2023. The criminality involved in the count will necessarily be more serious by virtue of its status as a rolled-up count: R v Jones [2004] VSCA 68 at [13] and Johnson v R [2017] NSWCCA 53 at [68]-[70]. The offending involved multiple instances of penile and digital penetration over an unspecified period. The first non-consensual act involved digital penetration for approximately two minutes. The second involved both penile and digital penetration over the course of 10 minutes. There was then an intervening act when the young person’s friend entered the room. The young person resumed the offending conduct after asking his friend to leave. This subsequent conduct involved intermittent penile and digital penetration for an unspecified length of time. The victim was penetrated without her consent more than once and while the exact duration is unknown, the offending was somewhat protracted given the course of conduct captured by the rolled-up charge.

61. The offending is aggravated by the young person not wearing a condom after the consensual intercourse ended, potentially exposing the victim to sexually transmitted infections or pregnancy. The victim had explicitly stated she was unwilling to have sex without a condom prior to the offending conduct.

62. A further aggravating feature of the offence is that the victim physically and verbally protested on multiple occasions. She told the young person “no” and “stop” and attempted to physically intervene in his actions without success, including rolling onto her stomach. The young person persisted despite her telling him that she did not want to have sex again. I am satisfied the young person committed the offence in circumstances where he was aware that the victim was not consenting.

Subjective circumstances

63. The material before the Court included three Child and Youth Protective Services (CYPS) pre-sentence reports and an independent psychological report prepared by clinical psychologist, Tabitha Frew, dated 7 October 2024.

CYPS pre-sentence reports

64. An initial pre-sentence report was provided by CYPS on 26 April 2024. Following a further telephone conversation with the young person, an updated report was provided to the Court on 27 June 2024. Following two further in-person interviews, a final updated report was produced on 15 July 2024.

65. The young person is now 16 years old. He is the eldest child of his parents, with one brother and one maternal half-sibling. He reported not having had any contact with his mother for seven years. He stated that he and his brother were removed from her care due to her drug addiction. The status of his relationship with his father has fluctuated, however at the time of the production of the most recent report they were having minimal contact, partly due to the strained relationship he shares with his father’s girlfriend.

66. The young person’s living arrangements have been riddled with instability from a young age. He was born in Canberra. In 2017, he moved to Ballina to reside with his paternal grandmother after his parents, in his father’s words, “went off the rails”. He returned to live with his father in November 2022 following a “falling out” with his grandmother. At the time of the offence, he was residing at a friend’s house. After being charged, he was initially bailed to reside at his paternal grandfather’s residence as his father was living out of his vehicle at the time. At the time of the reports being prepared, the young person was residing in a share house with four others, including Ms B and Mr C. He rented a room in the house and described a positive and supportive relationship with Ms B and Mr C.

67. The pre-sentence reports included an extensive history of engagement with CYPS, primarily in the period prior to the young person’s relocation to Ballina. CYPS had received 31 Child Concern Reports concerning the young person. These reports detailed concerns regarding his father being incarcerated, family violence, parental substance abuse, his mother’s mental health, neglect and criminal connections.

68. The young person attended school until year 10 although described his attendance as “shocking”. A letter sent to the young person’s father in September 2023 explained that the young person was unable to receive a year 10 certificate due to unsatisfactory grades and his 13 per cent attendance rate. The young person told the author that he was suspended “heaps of times” during years 7 and 8 for various reasons, but stated he is “not like that anymore”.

69. The young person explained that he chose to leave school so that he could pursue full-time work. In February 2024, he commenced a gyprock and plastering apprenticeship however lost his job partway through the year. He re-commenced employment in July 2024 as a labourer and reported enjoying his work. He advised being financially independent and managing his own bills such as rent and internet.

70. CYPS records suggested the young person has “several intellectual disabilities and mental health challenges”, including generalised anxiety disorder, reactive attachment disorder, persistent and specific learning disorders and attention deficit hyperactivity disorder (ADHD). The author noted that the young person has National Disability Insurance Scheme (NDIS) funding for these conditions. When the author asked the young person if his NDIS plan is current, the young person said his grandmother “was making it out worse [than] what we were… would label us as autistic, she was getting heaps of money from NDIS”. The young person said that as he was no longer in his grandmother’s care, the NDIS plan would have been cancelled.

71. The young person reported that his employment has assisted in improving his mental health. He expressed having experienced thoughts of suicide and self-harm when he was charged with the offence, but told the author that he did not have any current suicidal ideation. The young person shared that he had previously taken Ritalin for his ADHD, however ceased taking it in 2021.

72. The young person reported that he commenced consuming alcohol when he was approximately 13 years old, but stated he does not drink alcohol regularly, only when at social gatherings. He described himself as a “big marijuana user” and relies on marijuana for eating and sleeping. However, he noted that his daily usage has decreased since gaining employment and that he is continuing to try to cut down.

73. The young person told the author that his best friend was present at the time of the offence and a condition of his bail is that he does not have contact with this person, although plans to resume the friendship once the condition is removed. He described two colleagues as positive influences. The young person expressed to the report author that he gets disappointed in himself when he makes mistakes at works, saying he “has got a bit of a low temper with ADHD, fire up quickly… people talking shit is one of the main things… I go have a bong or punch holes in walls a couple of times”.

74. After having the facts of the offence read to him, the young person stated that “some of it happened, not all of it” and that the victim never said “no”. He provided an alternative version of events whereby after the victim told him she was in pain, he stopped and waited until she was ready to recommence having sex. He stated that he entered a plea of guilty as he did not consider himself capable of going through the trial process. He demonstrated a verbal understanding of consent, stating that “you always need to get consent” and “if they say no, it is no”.

75. The young person reported that being charged with the offence had a “massive impact” on his life. He is no longer friends with any of the young people identified in the statement of facts and he has experienced periods of depression. He was able to identify how this type of offending would affect a victim, stating that it would be “very mentally traumatising”.

76. The report concluded that the young person is at low risk of sexual recidivism, although he would benefit from psychoeducational interventions focused on social skills and appropriate sexual behaviour. He was found suitable for a good behaviour order and supervision.

77. Since the reports were finalised, the young person’s living arrangements have changed. He is now residing with Mr P and Ms W after being employed by Mr P. The arrangement is working out very positively and has potential to provide not only stability for the young person, but the emotional care and support he has required for some time.

Independent psychological report

78. The young person participated in a 3-hour interview with Ms Frew for the purpose of preparing the report. Ms Frew observed the young person to present with a healthy appearance and to be open and cooperative during the interview. He fidgeted and appeared anxious however there was no evidence of formal thought disorder or psychotic phenomena.

79. The young person explained to Ms Frew that he intended to become a kinship carer for his little brother due to concerns he holds regarding his father’s reliability. He stated that his father “still uses ice and his girlfriend is an alcoholic who gets really angry when she drinks”. He described his father as self-centred and reported that he has “called him for help a few times but he just tells me to sort it out myself”. The young person reported that his relationship with his father has improved since they stopped residing together and he attends his father’s residence weekly to visit his younger brother. In relation to his mother, he reported not seeing her since he was 10 years old and that she resided in Queensland. His mother sometimes sent him messages but he does not reply as he does not trust her. CYPS documentation revealed that concerns were previously raised regarding the young person’s exposure to his mother’s outlaw motorcycle gang associates, the young person residing in a motel in the same room his mother used for sex work, physical abuse perpetrated by his mother and hearing her tell police she did not want her children.

80. The young person reported not recalling much of his childhood but could remember a lot of drinking, fighting and yelling, as well as feeling fear of his mother’s boyfriends. He recalled crying a lot and moving to Ballina when his parents could not look after him anymore. His relationship with his grandmother broke down when she would not let him in the house after he smoked a vape and he found out she was using his NDIS payments for her personal expenses.

81. Upon returning to Canberra he reported living with his father, then with an aunt in NSW, before moving into a share house with his father. His father eventually left the share house however he remained living there independently. He reported enjoying residing there, stating “they are great… they are quiet and everyone goes to bed early, there is no arguing… they teach me stuff about life.” He felt that residing at the share house was the most stable and consistent period of life he has ever experienced.

82. The young person reflected on the difficulties he encountered with school due to the level of instability on his life. He stated that Ms B and Mr C have now taught him how to “get a good routine and be reliable” which has assisted him in maintaining employment. He reported going to bed by 10pm every night and waking up at 5:30am. He reported enjoying his current job as a bricklayer’s labourer and that he works with two other older men who are both supportive and positive influences. In relation to his colleagues, Ms B and Mr C, he stated: They are the nicest adults I have ever known. I am safe with them and they are respectful and teach me stuff about life. I know I was a little shit when I was young but now I know how to behave better.

83. The young person informed Ms Frew that he is currently single but reported recently ending a 12-month relationship. When asked about sexual activity in that relationship, he stated he was always respectful and made sure she never felt forced into anything. He said he was content remaining single as he wanted to focus on work and his court matter, reporting that he has ended contact with his “criminal mates” and now just socialised with his colleagues and housemates.

84. The young person did not report any further physical or mental health issues beyond what was discussed with the pre-sentence report author. He reported smoking marijuana every night before bed as it blocked out nightmares relating to his history of exposure to traumatic events. Ms Frew stated that the young person’s cannabis use disorder will likely improve after treatment of his post-traumatic stress disorder (PTSD).

85. Ms Frew concluded, unsurprisingly given the history, that the young person’s childhood has had a significant impact on his mental state and psychosocial functioning. The young person has previously been diagnosed with reactive attachment disorder which is a “condition where children do not form an emotional bond with their caregivers because of chronic and severe neglect and abuse at an early age”. Ms Frew stated that “children with this condition have significant difficulties managing their emotions, struggle to form meaningful connections with other people, and they rarely seek comfort or support from others due to a (learned) pervasive fear of connection”. Ms Frew identified that the young person shows signs of untreated reactive attachment disorder in the following ways: (a) documentary evidence of developmental delays and failure to reach milestones; (b) correlated mental health conditions including PTSD, substance use disorder, and challenges with anger, aggression and disassociation; (c) chronic difficulties in school including learning and behavioural problems; (d) attachment problems in relationships with peers, adults and partners; and (e) risk-taking behaviours such as early and problematic sexual activity.

86. Ms Frew stated that his diagnoses of generalised anxiety disorder, PTSD, ADHD, intellectual disability and learning disorders are generally found in specific populations of highly traumatised children. She further stated that interview and test results indicated that the young person continued to suffer from emotional and psychological dysfunction as it relates to the effect of exposure to prolonged trauma in childhood. During the clinical interview, the young person impressed as having a mild impairment in social functioning, as he struggled to navigate feeling angry about the offence. Ms Frew observed that the commission of the offence was not related to the young person’s beliefs of entitlement to the victim’s body, or a pre-existing plan to disregard her consent, rather, it was caused by developmental trauma and a reactivation of the associated altered states of consciousness experienced in childhood.

87. Ms Frew recommended a combination of Schema Therapy and Cognitive Processing Therapy to treat his psychological conditions. She concluded that if a trauma-informed, developmental approach was taken to treatment while he is an adolescent, the young person would likely desist from sexually harmful behaviour. She did not believe that sexual offending treatment or substance use treatment would be beneficial in this instance as his precipitators for offending are developmental in nature. Letter from Ms W

88. The letter from Ms W served as a character reference, as well as providing an update as to the young person’s living situation. The letter confirmed that the young person is now residing with Ms W, Mr P and their four young daughters in rural NSW.

89. Ms W detailed that after Mr P employed the young person in June 2024, he quickly realised how hard working the young person was and the two developed a strong relationship as both his boss and a mentor. She stated that the young person has now taken on a ‘big brother role’ to their children “who adore him”. They spend much of their time together engaging in family activities such as swimming and motorbike riding. She speaks of initially being daunted by the prospect of caring for a fifth child however the young person has proven to be an asset to their family unit and assists with household duties. Ms W expressed that her partner has taken on the role of a father figure to the young person and the two openly talk about his mental health challenges and hopes for the future. Ms W expressed that she and her partner love the young person “as if he was one of [their] own children and hope that [they] can continue to guide him in the right direction to give him a great future and become a valuable member [of] society”.

Remorse, rehabilitation and degree of responsibility for the offending

Section 133D of the Crimes (Sentencing) Act

90. The young person was 15 years of age at the time of the offence. By virtue of his young age, chapter 8A of the Crimes (Sentencing) Act is enlivened. Section 133D of the Crimes (Sentencing) Act provides the following: (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).

91. These additional considerations require an analysis of tightly intertwined factors that operate to influence the young person’s prospects of rehabilitation, the degree of responsibility he bears for the offending and the level of remorse he has demonstrated.

Remorse

92. Remorse is an important consideration in assessing an offender’s prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. As outlined above, during his interview with the pre-sentence report author the young person disagreed with the statement of facts. He disputed that his conduct was as described, contending that only some portions were accurate and that the victim never told him “no”. Somewhat contradictory to these statements, he also informed the report author that he was already in the process of writing an apology letter to the victim.

93. Ms Frew noted that the young person impressed as having a mild impairment in social functioning which impacted his ability to discuss the offence. Accordingly, it may have contributed to his inability to meaningfully express remorse to the pre-sentence report author. The young person stated to Ms Frew that “I know I fucked up… I can only imagine what it has done to her [mentally], it has also made the lives of lots of people really difficult”. He did express some insight into the severity of sexual offending generally, stating that “it is disgusting, there would be no enjoyment in that” to Ms Frew.

94. I am satisfied that the young person does feel a degree of remorse for his conduct. His capacity to articulate as much and to have extensive insight into his offending conduct is inhibited by his complex psychological and cognitive state.

Degree of responsibility Bugmy considerations

95. The material makes clear that the young person has had a childhood and adolescence marked by profound disadvantage. This factor must be given “full weight”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy).

96. Ms Frew stated that a “combination of neglect, abuse and abandonment from his mother, and the lack of reliability, protection and a sense of ambivalence from his father, had the most significant impact on his emotional responses and behaviour”. Ms Frew referenced CYPS material which demonstrated the young person’s awareness of being abandoned and rejected by his parents from the age of four. Documents indicated he was “found crying and continued to ask case workers why he was left alone so often, stating he did not want this to occur, and at other times, it was documented that unknown adults left him alone when his parents became violent toward each other, despite him clinging to them with repeated cries for them to stay and protect him". Unsurprisingly, Ms Frew concluded that these past traumas have had an ongoing impact on the young person’s development. Further, she stated that his “emotional responses and behaviour remain ‘stuck’ in a pattern of expecting others to thwart him, which is driven by a deep-seated fear of being harmed by everyone”. Ms Frew ultimately found that the interaction between the young person’s conduct disorder and untreated PTSD, impaired his ability to exercise appropriate judgment at the time of the offence. Specifically, the triggering contextual factor being the perceived or actual “rejection and abandonment from the victim, which had a domino effect in his psychological processes and emotions”.

97. This abandonment of the young person by his parents, as documented by CYPS during his early childhood, has been made plain by their continued failure to support the young person throughout his current engagement with the youth justice system. On the first occasion this matter came before me for sentence on 2 July 2024, the young person attended Court on his own, without a parent. I articulated the unsatisfactory nature of this, not only pursuant to s 71 of the Court Procedures Act 2004 (ACT) which requires parents to attend court proceedings in relation to a young person, but also because a 16-year-old should not be required to navigate his own way through life, especially in the midst of a serious and complex legal matter. While the young person’s father did attend on the next occasion the matter was before me, he has failed to attend on any subsequent occasion.

98. The young person’s childhood has been marred by substantial neglect and abandonment. Accordingly, he has not received the kind of care or guidance that should attend to the lives of all children. He has not had consistent moral guidance necessary to properly navigate the challenges of adolescence including the challenges that can attend to adolescent relationships. Arising from the absence of parental responsibility from his life from a very young age, the young person will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]).

99. This is a young person who has been largely left to make his own decisions about fundamental aspects of day-to-day life, including accommodation and education from an age when those concerns should be far from his existence. He has had little to no assistance with the psychological burdens he bears because of his childhood and little to no assistance with managing his own development. The level of responsibility he bears for the offending must be assessed with those considerations in mind. That is not to say that the young person bears no responsibility for his offending conduct. Rather, it is to acknowledge the genuine affect of those charged with his care and development entirely abandoning their responsibilities. The circumstances that the young person presents to the Court with, in many respects, make it remarkable that he has no history of prior engagement with youth justice services. Verdins considerations;

100. Counsel for the young person submitted that the collective impact of his multiple diagnoses should reduce his moral culpability for the offending and reduce the significance of specific and general deterrence, relying on R v Verdins [2007] VSCA 102; 16 VR 240. The prosecution conceded that the young person’s moral culpability was reduced.

101. The psychological report concluded that the young person’s mental health conditions, particularly his conduct disorder and PTSD, contributed to the offending. Ms Frew stated that the assessment she administered indicated that the young person is “vulnerable to acting in an aggressive or sexual nature, impulsively and beneath full conscious awareness, when he is impacted by a psychological state of dread”. Further, “during this type of altered state, [the young person] would not be able to fully appreciate the wrongfulness or seriousness of the conduct toward the victim”.

Maturity

102. Section 133D(1)(a) of the Crimes (Sentencing) Act necessitates consideration of a young person’s maturity in assessing their culpability for an offence.

103. In some ways, the subjective material depicts an individual who is more mature than might be typically expected for a 16-year-old. He is employed full-time and has been essentially living independently for several years. This does not undermine the effect of his negative childhood experience. He has been left entirely without the supports and care typically provided by parents which has undoubtedly forced him to develop life skills much earlier than most, for his own survival. While he may have attained a high degree of independence because of his circumstances, this is distinct from an assessment of his emotional maturity.

104. In R v ME [2017] ACTSC 402 at [11], Burns J considered the following when sentencing a 15-year-old offender: At 15 years of age one cannot say that ME was so old or of such maturity that his state of development was such that he should not be the subject of some leniency with respect to determining the state of his culpability, with respect to these offences. There is nothing to suggest that ME’s state of development was anything other than a normal 15 year old. But a normal 15 year old male is often very immature.

105. Justice Burns made these observations in relation to a young person with “a very loving and close family” from which he received “significant continuing ongoing family support”. This can be readily distinguished from the background of the young person who has been without such supports to guide his emotional and cognitive development.

106. The young person’s state of development, including his emotional maturity, has been inhibited by his neglect and the absence from his life of positive parental role models. While the young person has demonstrated an understanding himself of the seriousness of the charge before the Court, his offending conduct occurred in the context where he was making decisions absent the kind of parental guidance that should attend to those decisions, in circumstances where his emotional maturity has been comprised by that lack of guidance.

Conclusion

107. I am of the view that the combination of the young person’s emotional immaturity, as well as the application of the Bugmy and Verdins principles as outlined above, operate to reduce the young person’s degree of responsibility for the offending and moderates the weight to be afforded to general deterrence, denunciation and punishment.

Rehabilitation

108. I bear in mind that rehabilitation of the young person is a matter of particular importance and it may be given more weight than other purposes of sentencing pursuant to s 133C(1) of the Crimes (Sentencing) Act. Further, pursuant to s 133C(2), the Court must have particular regard to the common law principle of individualised justice. In MT v The Queen [2021] ACTCA 26; 17 ACTLR 26, the Court noted at [64] that: We infer that, when the 133C requirement to pay “particular regard” to “individualised justice” is read together with the discretion to give more weight to the sentencing purpose of rehabilitation, the result is that, if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise.

109. Since the commission of the offence, the young person has demonstrated a commitment to living a pro-social life, made notable by the ongoing absence of adult role models in his life until very recently. While he left school shortly after the commission of the offence, in this instance it is not necessarily indicative of a step backwards. He achieved a full-time apprenticeship in February 2024, a position he then lost in June 2024, before commencing his current role as a labourer in July 2024. The letter from Ms W referred to his “great work ethic”.

110. The young person appears to have developed an entrenched dependency on cannabis, citing it as essential to eating and sleeping. This is a concerning feature as he appears to have limited insight into the benefit to him of significantly reducing his use. Nonetheless, his use of cannabis appears unrelated to his offending and so does not reduce his rehabilitative prospects to any substantial degree.

111. In terms of sexual offending, the pre-sentence report author concluded that the young person had a low risk of recidivism. The primary areas of concern identified were his stability and behaviour. The young person’s history of disruptive behaviours occurred in the context of his schooling. He has a preference for physical, hands-on activities and keeping busy, something which his employment now offers.

112. The young person’s living arrangements have yet again changed in the last few months. He appears to now be very well supported in his current arrangement which has potential to afford him ongoing stability. The letter from Ms W depicted a nurturing and stable home environment. The young person is actively planning for his future, working towards an apprenticeship, his license and making considerable progress in saving up the funds to purchase his own car. Ms W referenced her particular fondness for her regular discussions with the young person about his goals for the future.

113. The young person has willingly taken steps to address the mental health challenges he has acquired as a result of his childhood experiences. On his behalf, Ms W had made contact with a general practitioner and is working toward organising the treatments recommended by Ms Frew. He also has an upcoming appointment with Menslink. Perhaps for the first time in his life, the young person is part of a nurturing and supportive home environment with adults capable of encouraging aspiration. It must be said that this environment has come about by luck and not by design; if the community has an interest in the young person’s welfare, then the community is fortunate indeed that Ms W and Mr P are willing for this arrangement to continue.

114. The young person has good prospects of rehabilitation – undoubtedly made stronger by the involvement of Mr P and Ms W. The young person has demonstrated strength and resilience to navigate the challenges he has faced over the course of his young life. The young person has demonstrated genuine motivation to build the necessary skills to live a pro-social life. He has a real desire to positively influence his younger brother’s life. He appears to want more for himself than perhaps his childhood experience set him on a pathway toward and he is prepared to work hard to get to that position. While not receiving any supports from his parents, he has found, in other pro-social adults, the care and guidance that should have been assisting him all along.

Criminal history

115. The young person has no criminal history.

Time in custody

116. The young person has spent three days in custody in relation to the offence before the Court. I will take this into account in the sentence I impose. Plea of guilty

117. The young person indicated a plea of guilty at the criminal case conference, with a formal plea being entered on 14 February 2024. Consistent with the approach identified in Blundell v The Queen [2019] ACTCA 34 at [12] and R v Nicholas; R v Palmer [2019] ACTCA 36 at [52], the plea had significant utilitarian value such that a reduction of 20 per cent is appropriate.

Sentencing practice

118. No sentence is a precedent nor do sentencing outcomes fix an upper or lower cap for an offence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. A sentencing court is concerned with consistent application of principal not mathematical equivalence. A sentence that is “just and appropriate” (Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8]) must give effect to individualised justice.

119. The parties referred me to several outcomes from this Court: R v CN [2020] ACTSC 282, R v Smith (a pseudonym) (No 2) [2020] ACTSC 260 (Smith), R v EO [2017] ACTSC 138, R v CC [2016] ACTSC 324, OH v Driessen (No 2) [2015] ACTSC 354, R v Haven (a pseudonym) [2022] ACTSC 25, R v Horton-Hegarty [2017] ACTSC 268, R v MT [2014] ACTSC 162, R v CV [2013] ACTCA 22; 233 A Crim R 67 and R v PM [2009] ACTSC 24. I have had regard to the facts, circumstances and outcomes in each of those matters.

120. Most analogous to the facts in this matter, Smith involved a 17-year-old offender and a victim of similar age. The offending similarly occurred in the context of otherwise consensual sexual activity. The offender was found guilty at trial for an act of indecency without consent and two counts of sexual intercourse without consent. The young offender in Smith had a typical upbringing in a supportive family environment and was sentenced to 8 months of imprisonment, immediately suspended upon entering a Good Behaviour Order for a period of 18 months.

Determination

121. In sentencing the young person, I must have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of his moral culpability moderates the weight to be attached to punishment, denunciation and general deterrence. The sentence imposed must also recognise the harm occasioned to the victim by the young person’s conduct.

122. This is a matter where I consider the young person’s strong prospects for rehabilitation should be afforded substantial weight. Those prospects are best served by an outcome that allows the young person to remain in the community and continue the efforts he has already made with attaining employment, seeking out psychological supports and building relationships with positive role models. To interrupt the progress the young person has made in that regard would risk it entirely in my view. An outcome that removed the young person from his current environment in the community would not be in either his or the community’s interest.

123. It was conceded on the young person’s behalf that the s 10 (of the Crimes (Sentencing) Act) threshold was crossed, such that a term of imprisonment was warranted. It was submitted that in the circumstances, the period of imprisonment should be entirely served in the community. The prosecution submitted that the gravity of the offending warranted a sentence of imprisonment though supported the entire period being served in the community.

124. Bearing in mind that a period of imprisonment is a sentence of last resort for a young person, I consider it to be the only appropriate outcome in view of the seriousness of the offending. A sentence other than one of imprisonment would fail to accurately address the serious nature of the young person’s conduct and the harm occasioned to the victim.

125. By virtue of his psychological diagnoses, Ms Frew found that a custodial environment would be particularly onerous on the young person and would be comprehensively detrimental to his rehabilitative prospects. To interrupt the progress he has already made by requiring him to serve a period of full-time detention would similarly be detrimental to his prospects of reform. In light of the young person’s compelling subjective circumstances and the pathway to rehabilitation that he is firmly on, I am satisfied that he should be given the opportunity to serve the period of imprisonment I will impose in the community. The period I impose should be for the shortest appropriate term.

126. I will require the young person to enter a Good Behaviour Order that requires him to engage in supervision. As was supported by the prosecution, given the significant supports now in place for the young person, I will frame the supervision condition generally, to enable the supervision component to be implemented and terminated at the discretion of the Director-General.

127. On the charge of sexual intercourse without consent the starting point is 18 months of imprisonment, reduced to 1 year, 2 months and 12 days for the plea of guilty.

Registration as a sex offender

128. Pursuant to ss 8 and 10 of the Crimes (Child Sex Offenders) Act 2005 (ACT) (the Child Sex Offenders Act), a conviction for this offence, being a registerable class 1 offence, results in an offender being registered as a child sex offender, giving rise to various obligations and restrictions.

129. Pursuant to s 9(3) of the Child Sex Offenders Act, the young person made an application that the Court exempt him from being registered. Sub-sections (3) and (4) provide: (3) A person is not a registrable offender if— (a) the person was a young person at the time the registrable offence was committed; and (b) a court considers, on application by the defence, that including the person on the register is inappropriate in the circumstances of the case. (4) In making a decision for subsection (3) (b), the court must consider— (a) the severity of the offence and the seriousness of the circumstances surrounding the commission of the offence; and (b) the age of the person at the time of the offence; and (c) the level of harm to the victim and the community caused by the offence; and (d) any attempts at rehabilitation by the person; and (e) whether the person poses a risk to the lives or sexual safety of 1 or more people or of the community; and (f) any other circumstances that the court considers relevant.

130. The offence before the Court is clearly one that is objectively serious and caused harm to the victim. However, given the young person’s age, the circumstances of the offending, his strong prospects of rehabilitation and his background of severe childhood deprivation, I am of the view that including the young person on the child sex offenders register is inappropriate in the circumstances.

131. I do not consider the young person to pose the type of risk to the community or to individuals that registration in this scheme would guard against. Subjecting the young person to the obligations under the Act would serve no useful purpose for him or for the community. While the victim in this instance was a child, the young person was also a child at the time he committed the offence. As I have already observed, generally speaking the young person’s interest in the victim was entirely age appropriate.

132. This young person has demonstrated real capacity to live a pro-social life despite his traumatic upbringing. His registration as a sex offender would be burdensome and would have capacity I think, to hinder his rehabilitation. His registration is neither necessary nor appropriate given the circumstances of the offending. The prosecution supported the application.

Orders

133. For those reasons the following orders are made: (1) On the charge of sexual intercourse without consent the young person is convicted and sentenced to 1 year, 2 months and 12 days of imprisonment commencing on 26 October 2024 and expiring on 6 January 2026. (2) This sentence is to be suspended immediately upon the young person entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 6 January 2026. (3) In addition to the core conditions, the young person is to accept the supervision of the Director-General and comply with all reasonable directions until 6 January 2026 or such lesser period deemed appropriate by the Director-General. (4) Pursuant to s 9(3) of the Crimes (Child Sex Offenders) Act 2005 (ACT), the young person is not a registrable offender.

I certify that the preceding one-hundred and thirty-three [133] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 29 October 2024