DPP v Jones

1. The young person, Braxton Jones (a pseudonym), is to be sentenced in respect of six sexual offences and a family violence offence. All sexual offences are serious, but the conduct that occurred here has particular features of aggravation that elevate the seriousness.

2. Given the seriousness of the offending conduct, it is particularly concerning that it was offending committed by a person who was then 17 years of age. The sentencing exercise raises a challenge in balancing sentencing purposes that give effect to the gravity of the offending, the harm caused to the victim, the promotion of rehabilitation of the young person, and with achieving orders that promote community protection.

The offending

3. The offending occurred in five distinct incidents over a period between 4 and 9 June 2023. At the time of the offending, the victim, who was aged 14 years, had known the young person for around three months. The victim had told the young person her age when they first met. They had been talking and getting closer in the month preceding the offending. They were in an intimate relationship for the purposes of the Family Violence Act 2016 (ACT). The offences committed involve: (a) Five offences of aggravated sexual intercourse with a person under 16 years, contrary to s 55(3) of the Crimes Act 1900 (ACT) (Crimes Act) and carrying a maximum penalty of 18 years imprisonment; (b) One offence of aggravated act of indecency on a person under 16 years, contrary to s 61(3) of the Crimes Act and carrying a maximum penalty of 13 years imprisonment; (c) One offence of aggravated threat to kill, contrary to s 30 of the Crimes Act and carrying a maximum penalty of 13 years imprisonment; and (d) One offence of possess offensive weapon with intent, contrary to s 381 of the Crimes Act and carrying a maximum penalty of one year imprisonment, a fine of $2000, or both, which is to be taken into account pursuant to pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

4. On Monday 5 June 2023 at around 1:30pm, the victim woke up at her home in a suburb of Canberra. She had a shower, and then left her residence. This was the last time that her mother saw or heard from her daughter until the evening of Thursday 8 June 2023.

5. The victim went to the young person’s home in another suburb of Canberra. The young person lived there with his mother and his sister.

First incident Count 1 (CC CAN 2023/978) – Aggravated sexual intercourse with person under 16 years

6. On the night of 5 June 2023, the young person and the victim did an ‘all-nighter’ as they wanted to go out early the next day. They hung out in the young person’s lounge room, which he was using as his bedroom. He had a broken bedroom door positioned to block the area from the living room and kitchen.

7. During this night, a video-call was made over Snapchat to two friends, one being a female and one a male. They were initially called at around 9pm, and stayed on the phone until 7am the next morning when they met them at a nearby McDonalds.

8. At one point, the young person took the victim’s clothes off and they began to have consensual sexual intercourse. The young person put his hand on the victim’s vagina and then inserted his fingers into her vagina. He then got on top of the victim and began to have penile-vaginal intercourse with her. She was lying on her back.

9. After around two minutes, the victim realised that the young person was still on the call to the two friends. When she realised, she started saying “stop”, and “I don’t want to do this anymore”. She said this around four times. The young person refused to stop and kept going for another five minutes until he ejaculated into the victim’s vagina.

10. Whilst he was having sexual intercourse with her, the young person also choked and slapped the victim.

11. The female friend recalls that she received a phone call from the young person at around 2am and she could hear the victim in the background crying and saying “no, stop”. This friend also told the young person to stop, and he hung up the phone.

12. Whilst they were on the video call with the friends, the young person also showed the friends the victim’s vagina without her consent.

Second incident Count 2 (CC CAN 2023/ 979) – Aggravated sexual intercourse with person under 16 years

13. On another occasion during the ‘all-nighter’, the young person engaged in penile-vaginal intercourse with the victim and used two hands to choke her until she could not breathe.

14. He then forced her to put her hands up and applied pink fuzzy handcuffs to her wrists. He continued to have sex with her aggressively, while she was begging him to stop. He refused to stop and continued to slap and choke her. Whilst she was handcuffed, the young person may have also performed cunnilingus on the victim.

Events following the ‘all-nighter’

15. The next morning, the young person and the victim rode their bikes to the McDonalds to meet with their friends. They then went to a shopping centre in Civic, before the victim and the female friend got a bus to Belconnen and the male friend and the young person rode the bikes.

16. Whilst in Belconnen, the young person got into an argument with a security guard, and they were kicked out of the mall. They returned to the city, before the friends went home, and the young person and the victim rode the bikes home. The young person and the victim then caught a tram to another suburban locality.

17. They went to the residence of an associate of the young person to purchase marijuana. The victim had never been to this house before. The victim messaged a friend at around 5:12pm and told her she was “walking around some suburb to meet [the young person’s] friends”.

18. When they arrived at this residence, there were two other people at the house. They smoked some marijuana at the house, as well as bought $100.00 worth of it. They returned to the young person’s house, before then having dinner at a nearby restaurant.

19. Whilst they were having dinner, the victim called the friend she had earlier messaged, and asked her to tell her mother that she was staying with her that night. During that conversation, the victim said she couldn’t talk, or “they would hear her”. At around 9:42pm, this friend received some incoherent messages from the victim. This was their last contact, with subsequent messages sent by the friend all showing “green”, indicating the victim’s phone was off. The last live location for the victim as shown on Snapchat was the young person’s house.

20. After dinner and once back at the house, the young person and the victim smoked some cannabis. The victim thought that it was laced as it felt different to usual, and she then fell asleep. When she woke up, she saw the young person sitting near her holding a machete. It was really long and had a black handle. She asked him what was wrong, but he did not reply. Around five minutes later, he told the victim to give him her phone. She complied, and he turned the phone off and hid it.

21. The victim fell back asleep. When she woke up, she smoked some more cannabis. The young person then asked her if he could kill her. He appeared serious. The victim told him no, and that she didn’t want to die.

22. During this period, the young person’s friend had become concerned about the victim’s whereabouts and her safety, and she contacted the victim’s mother. The victim’s mother contacted police.

Police enquiries

23. At around 2:30am on Wednesday 7 June 2023, police attended at the young person’s address to conduct a welfare check on the victim. Upon arrival, they spoke to the young person’s mother who said she didn’t know where the young person was, and she did not know who the victim was. She refused to let police inside.

24. The young person and the victim were inside the house at the time. When the young person realised the police were at the house, he told the victim to be quiet.

25. At 7:30am, police again attended the residence to conduct a welfare check and again spoke to the young person’s mother. She again told them that the young person and the victim were not at the residence. She stated they had not been there for a few days. She again refused police entry to the house, stating that she had given police consent to enter a few hours ago. She said it was likely the victim had just left her phone inside the residence.

26. At 3pm that day, police again attended the residence for a welfare check. Upon arrival, they heard the music that was playing immediately cease. The young person answered the door and was immediately hostile. He told police that the victim was not at the residence, and that the last time he had seen her was the day before.

27. On Thursday 8 June 2023 at 1:19am, police attended the residence for the fourth time. The young person answered the door and stated that he had not seen the victim since the day before. He refused to provide any further information.

28. The victim recalls that police attended the residence a number of times, but on each occasion either the young person or his mother answered the door and would not let them come inside. The victim told the young person that she wanted to go with the police, but the young person said “no, you have to stay here”. The victim never tried to leave due to the threats that the young person had previously made to kill her. She was scared that if she left, the young person would kill her. Third incident Count 3 (CC CAN 2023/ 980) – Aggravated sexual intercourse with person under 16 years

29. At some time on the Wednesday or Thursday, after police had attended, the young person’s mother left the house. Shortly after she left, the young person became angry as he believed the victim was sleeping with other people and he punched her.

30. The young person then told the victim to take off her clothes and to lay on the bed. The victim felt like she had to comply as she knew the young person had a machete and he was angry. She took of her tracksuit pants, shirt, and underwear. She smoked some more marijuana while she was naked, and eventually became so intoxicated that she was unaware of what was going on.

31. Around this time, the victim noticed that the young person had taken off his shirt and his pants. She asked him why and he told her he was going to “fuck her”. She said, “I don’t want to right now” but he said something along the lines of “yes you do”. The young person put his hands on the victim’s vagina and inserted his fingers into her vagina.

32. He then got on top of her and inserted his penis into her vagina. At this point, the victim froze. Whilst the young person was having intercourse with her, he choked her and slapped her. He placed one hand around her neck and held it really tight, so that she was only just able to breathe. He did this on around three occasions. The young person would then use either his other hand to slap her on her cheek, or he would remove his hand from her neck and use that same hand to slap her. The victim is unable to recall how many times the young person slapped her.

33. The young person eventually ejaculated inside the victim’s vagina.

Friend enquiries

34. On Thursday 8 June 2023 at around 4pm, friends of the victim, including those who had been on the video call and the friend that the victim had messaged, attended at the young person’s house in search of the victim. One of them recorded their attendance.

35. When they arrived, they knocked on the door and the young person’s mother came to the door and immediately started abusing them. They said they were looking for their friend as she was a missing person. The young person’s mother replied, “well she’s not here”. She went on to state “as I told the coppers, if she wants to contact her family she can, if she’s not here there’s nothing I can do”.

36. One of the friends said she was just there to get the victim because she was only 14 years old. The young person’s mother began to yell, and stated, “she can go home” and “you’re lucky you’re a minor or I would knock you out”.

37. The victim was still in the young person’s room but was too scared to say anything. The young person stated to the victim “don’t you say a word, don’t you tell them that you were here”. The victim later told her friend that she could hear the argument.

38. After this, the victim’s friend contacted another person and asked them to contact the young person and get him out of the house in an attempt to get the victim away from him.

Fourth incident Count 5 (CC CAN 2023/ 985) – Aggravated sexual intercourse with person under 16 years Count 6 (CC CAN 2023/ 971) – Aggravated act of indecency on person under 16 years

39. The last occasion where the young person engaged in sexual intercourse with the victim was just before they left the house. The victim was heavily intoxicated from the cannabis and was unable to talk at all, and every time she tried her words were slurring.

40. The young person put his hand over her mouth and said “gonna have sex now” or “do you want to fuck”. The victim did not want to, but she was unable to speak as his hand was covering her mouth. The young person took off the victim’s pants and said “okay, we’re fucking now” and inserted his penis into her vagina.

41. This continued for around three minutes, until the person who was to contact the young person called him. This caused the young person to stop having sex with the victim and he spoke to this person briefly on the phone. After the phone call, he began to masturbate and ejaculated on the victim’s face. The victim was physically unable to move. The young person used an old t-shirt to wipe the ejaculate off of the victim’s face.

42. After the final occasion of sexual intercourse, the victim remained at the young person’s house for around another hour, then the young person told her she could leave. They both walked to a nearby tram stop. At this point, the young person said to the victim “don’t tell anyone what happened, or I will kill you”.

Fifth incident Count 4 (SC CAN 2023/400) – Aggravated threat to kill Additional offence (CC CAN 2023/ 806) – Possess offensive weapon

43. During the time that they were at the house, the young person became fixated with the idea of killing the victim and continued to talk about it. During an argument, the young person held a machete to the victim’s throat and said, “I will do it”.

44. At some point, the young person said “do you want me to kill you? I’ll kill you. I’ll cut your hands, I’ll cut your feet off. I’ll cut your head off”. He told the victim he had a whole plan to go out to a nice dinner with her and then stab her, and then stab himself. He also threatened to shoot her. The victim believed he was being serious.

45. On some occasions, the young person would swing the machete around and say things like “I’ll kill you”, or “if you don’t shut up I’ll cut your fingers off” (CC CAN 2023/806).

Context of the offending

46. The agreed facts provide that during the four days at the young person’s house, the victim recalls that there were other instances of sexual conduct that she cannot properly particularise including penile/vagina penetration, digital/vaginal penetration, and cunnilingus.

Complaint

47. On the evening of Thursday 8 June 2023, the victim arrived home and said to her mother “let me in” and “I’ve pissed myself”. The victim’s mother looked at her and immediately knew something bad had happened. The victim went and had a shower as she had urinated in her pants.

48. The victim’s mother ordered some food for her and then told the victim that everyone had been looking for her. The victim stated that she didn’t really know what had happened, and that she had been raped. The victim then phoned her friend.

49. At around 10pm, the victim’s mother contacted police to confirm that the victim had been located. Police attended at the residence, along with members of the ACT Ambulance service. The victim was unwilling to provide any information and appeared withdrawn. She came to agree to attend at the hospital. At the hospital, the victim spoke with her friend about what had happened, and then to the police. The victim also underwent a forensic medical examination.

Investigation

50. On Friday 9 June 2023, police executed a search warrant at the young person’s residence. During the search, police located a machete, a silver chain, pink fluffy handcuffs, and matter suspected to be cannabis.

51. During the execution of the warrant, the young person made admissions to possessing the machete. Further, police observed red coloured hair strands inside of the young person’s wallet, which the facts provide is consistent with the victim’s assertion that the young person pulled out her hair and would keep it inside of his wallet. Fifth incident Count 7 (CC CAN 2023/ 983) – Aggravated sexual intercourse

52. During the police investigation, police undertook an analysis of the victim’s phone. A video was identified on the phone that showed the victim performing fellatio on the young person whilst in the lounge room of his residence. Nature and circumstances of the offending

53. The sexual offending involved violence and aggression beyond the inherent nature of this form of offence. It involved an escalation to physically violent conduct, verbal aggression, and a complete disregard of the victim’s resistance and protests to the conduct. As observed in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at [59], “it is a serious aggravation of an already very serious offence if the child also, in fact, objected to, or otherwise resisted, the sexual activity taking place.”

54. There was a concerning degree of controlling behaviour involved, including preventing the victim from having access to her phone, and preventing the victim from seeking assistance from police. The young person well knew the victim’s young age, and that she was under the influence of cannabis, and his conduct exacerbated, and exploited, her vulnerability. One of the acts involved the use of restraints, although there were not otherwise weapons directly involved in the sexual offending.

55. The threat to kill though did include a weapon being proximate to when multiple highly explicit threats were made, and on one occasion the machete being held to the victim’s throat. This threat in particular was capable of immediate realisation, but the subjective fear engendered was significant from all of the threats made. This charge is a ‘rolled up’ charge, and one that is a serious example of this form of offence. The possession of the weapon is to be taken into account in respect to this offending, elevating in particular specific deterrence and community protection in the sentencing exercise.

56. The sexual intercourse involved conduct of a highly disrespectful, humiliating, and degrading nature, in particular counts one to three. This included both physical acts such as choking and slapping the victim during the sexual activity, through to committing the acts while the victim was exposed to others through the video call. The young person afforded the victim no dignity while he sexually abused her.

57. There is little to distinguish each of the sexual incidents, with each involving their own forms of serious conduct. However, the act involving fellatio does not include any additional acts beyond the inherent violence of such an offence. It was still though an act that occurred within the context of an ongoing period of aggression and control. Not every act appears to have involved ejaculation, but each act of penile/ vaginal intercourse risked exposure to pregnancy, and all of the sexual acts risked disease transmission with no condom used.

58. This includes in respect to the act involving ejaculating on the victim’s face, with this conduct involving a particularly abhorrent form of debasement of the victim.

59. Counts one and three involve a form of ‘rolled up’ sexual activity. All of the counts involve sexual activity committed in a context of other concerning behaviour, albeit there needs to be caution to the extent this is considered so as to not offend the principle from R v De Simoni (1981) 147 CLR 383.

60. The totality principle requires careful application to reflect the extent to which the charges form a course of conduct that resulted in this being a protracted incident with multiple distinct sexual acts. However, “prolongation and repetition” increases the culpability for later sexual assaults: DPP (Vic) v Mokhatri [2020] VSCA 161 at [43]; DPP v Matas [2024] ACTSC 234 at [65], [66]. It remains nonetheless that the overall sentence is to hold out a proper measure of hope for, and encouragement to, rehabilitation and reform: Postiglione v The Queen (1997) 189 CLR 295 at 341.

61. The offending does though lack an aggravating feature of a significant age and maturity disparity between the young person and the victim. They were both adolescents and had an established relationship. Nonetheless, the offending occurred in a circumstance of breach of trust with respect to the intimate relationship. This aspect of family violence is reflected in the increased maximum penalty. The family violence context also raises application of s 34B of the Sentencing Act and the Preamble to the Family Violence Act 2016 (ACT), noting in particular here that the offending involved a child, that the offending occurred at the home of her intimate partner, and that the young person has not been previously convicted for serious family violence offences. Family violence is unacceptable in any form, with the form of it here involving both sexual and physically threatening behaviour.

Effect on the victim

62. The significant and pervasive impact that family violence and sexual violence cause is readily apparent here. In addition to what can be inferred from the facts themselves, which leave an impression of this being a terrifying ordeal for the victim, that plainly left her too frightened to initially disclose what had occurred, the effect on the victim has been explained in victim impact statements from the victim and from her mother.

63. The victim’s mother describes the challenge to put into words the agony that the young person caused during the offending and afterwards. Her daughter was made to feel dirty, unclean, and unlovable. She cannot escape what was done to her, even reliving it in her sleep. She turned to substances to numb the pain, and it tainted every part of her life. The victim’s mother speaks though of her daughter’s strength. She has not been broken, and she fights everyday to be more than what happened to her. She is someone, her mother describes, deserving of “so much more than the pain and suffering [the young person] caused”.

64. The victim’s mother also speaks of the impact on the entire family, with their relationships marred and damaged almost irreparably by the violence the young person inflicted. Again though, they will not allow their family to be destroyed and, the victim’s mother describes, that they will “continue to fight the impact of [the young person’s] evil”.

65. The victim herself, in what is a remarkable example of forgiveness, expresses her initial torment because she still felt love for the young person. She turned to substances to push everything way, but what happened would still come into her head. She described how she came to ruin her own life because of what the young person did to her, including being arrested and losing her friends, and then staying in her room in the depths of substance dependency and mental health challenges. The victim has since worked on her own recovery, and describes that she now simply wants peace, to heal, and to move on.

66. It is plain the victim embodies a strength and resilience that will enable her to, it can be hoped, one day move beyond the horrendous ordeal that she experienced.

Subjective circumstances

67. The young person was 17 years of age at the time of the offending, having committed the offences in the weeks prior to turning 18 years of age. He is now 19 years and 8 months of age.

68. His subjective circumstances are considered in detail in a Child and Youth Protection Services (CYPS) pre-sentence report dated 5 August 2024, a forensic psychological assessment by Dr Russell Pratt dated 26 July 2024, a psychological report by Ms Vanessa Edwige dated 18 July 2024, an intermediary report dated 3 May 2024, and a report by clinical psychologist Dr Eryn Davies dated 8 August 2023. School reports from 2023 and 2024 were also tendered. In addition, support letters from an advocate with the ACT Disability Advocacy Services dated 1 August 2024 and 18 February 2025, an undated character reference from a team leader at Police Citizens Youth Club (PCYC), and a letter dated 8 August 2024 from the Office for ACT Aboriginal and Torres Strait Islander Children and Young People (Office for ACT ATSICYP) were tendered on sentence.

69. The young person is a Yuwibara man through the ancestral birthrights of his father. He has a close relationship with his mother, but not with his father, who resides interstate. He has older siblings, with whom he has good relationships. He has intentions to reside with an older prosocial sister upon his eventual release from custody, and intentions to engage in employment. He engaged previously in employment as a removalist. He has an infant son from a relationship separate to the victim of his offending, and with whom he would like to a develop a relationship with. The young person has intentions to be a “good role model and support him”.

70. The young person was born in Canberra. His childhood was one marred by exposure to substance use, domestic violence, mental health challenges, and neglect. The young person describes that “violence was everywhere” and that “it was normal for us, just another day”. Ms Edwige opines that the young person’s adverse childhood experiences have significantly impacted his social and emotional wellbeing, and that he had an experience of adversity and disadvantage that establishes the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). The prosecution accepted that such principles were clearly engaged, and that the young person’s culpability is substantially less than older offenders whose youth has not been disadvantaged. I agree.

71. The young person began drinking alcohol when he was 10 years of age, and using cannabis from when he was 12 years. He went on to using other substances, but primarily has engaged in cannabis use, this being on a daily basis. Ms Edwige opines that the young person presents with substance use disorders. The material before the Court establishes that he was affected by substances at the time of the offending. On behalf of the young person, it was submitted that the principles from R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) are enlivened. I agree. The prosecution did not submit against such a finding, but raised the challenge of the role of this principle where the Bugmy principle is plainly of such significant application. I agree that this matter raises an exercise in a constellation of the principles from Bugmy, Henry, and R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) (see below at [80]), and additionally the compelling subjective circumstance of him being a young person. It all, as the prosecution submitted, has the combination effect of substantially reducing the young person’s moral culpability.

72. CYPS were involved with the young person’s family, with it being observed since 2014 that there were concerns as to the escalating anti-social behaviours being exhibited by the young person. His schooling has been disrupted, with suspensions, and challenges arising from attention deficit hyperactivity disorder (ADHD). The young person has struggled to maintain peer relationships, with it reported by a psychologist that he ”seemingly has poor social, romantic and general interpersonal-engagement skills”.

73. Dr Pratt describes that “what we see now is the product of [the young person’s] childhood and adolescent experiences”. Despite these family, environmental, and behavioural challenges, the young person has a limited criminal history. It is a history that involves an offence of unlicensed driving in August 2019, destroying/damaging property in September 2021, and minor theft in December 2022. The criminal history records that the destroy/damage property offence is an “FV” (family violence) offence, with the sentence imposed being one of a good behaviour order for six months with a requirement to attend programs or counselling particularly in relation to anger management, family violence and drugs. The pre-sentence report provides that the young person was compliant with the good behaviour order and that he engaged in supervision on a regular basis.

74. The facts and details of this apparent previous family violence offence were not tendered on sentence and so little can be drawn from this. It is though sufficient to limit the leniency that might be afforded in respect to the family violence aspect to the offending, and in particular, emphasises the role of community protection in the sentences to be imposed.

75. His period in youth detention is described as involving challenges with the other young detainees, who have targeted him with verbal and physical assaults as a result of the charges he faces. I do not accept that this amounts to extra curial punishment, as there is a lack of information to be satisfied on the balance of probabilities that this was a form of “retributive assault” that would amount to the “paradigm example of extra-curial punishment” (R v Payne-Moore [2021] ACTSC 125 at [55]). Nonetheless, I take the extent of information available into account in considering more broadly the challenges the young person has experienced, and may continue to, in the custodial environment.

76. The young person’s behaviour and progress in the custodial environment is described as involving: [M]any challenges and stresses that have at times resulted in the presentation of behaviours requiring a more targeted response from staff. He has however demonstrated significant growth, particularly in areas of engagement in supports services and programs as well as building respectful relationships with staff.

77. His growth while in custody is demonstrated by a number of positive areas of growth that he exhibits. He has become a leader in cultural art programs, with the young person described as a talented artist, and this evident from photographs of his artwork that were tendered on sentence. He has been in receipt of the horticulture award, obtained trade and driving qualifications, and engaged in drug and alcohol counselling. He has set goals that he has achieved, and maintained stability. He is described as having engaged well in his education in the custodial environment, and he is working towards completion of his year 10 certificate. He has engaged well with a support worker to develop his social skills, and he has intentions to make new, prosocial, friends through football and work once in the community. He has a strong interest in cars.

78. While the pre-sentence report describes that the “stability and predictability of a custodial environment may have provided some benefit to [the young person]”, the period while in custody is also described as having had a detrimental impact on the young person’s mental health. He is described as having expressed in the past that he is “really scared, he isn’t eating or sleeping and doesn’t want to go to the AMC”.

Mental health

79. Assessment on the full scale IQ finds the young person to be in the very low range, with him having challenges with verbal comprehension, working memory, and processing speed. He has been diagnosed with dyslexia. Nonetheless, he is found to have an appropriate level of cognitive and emotional intellect to engage in suitable therapy and treatment.

80. Ms Edwige finds that the young person was suffering from a mental health impairment at the time of the offending. She opines that his diagnoses of ADHD, substance use disorder, and learning disorders, along with his complex developmental trauma significantly impacted on his decision-making, judgment, behaviour, and emotional regulation.

81. It was submitted on the young person’s behalf that limbs three and five from Verdins are enlivened. I am not readily persuaded that limb three is enlivened pursuant to Verdins, in particular with reference to the effect of his conditions at the time of the offending. There are aspects of his conditions that are apparent in the conduct, but it was a protracted incident with numerous opportunities for reflection and to desist from the behaviour. Nonetheless, the role of general deterrence remains significantly moderated with reference to the young person’s other subjective features.

82. I do accept that his conditions have a bearing on the suitability of imprisonment, including any period of imprisonment in an adult correctional facility. The young person has vulnerabilities that create challenges for him in the custodial environment, which would only be exacerbated were he transferred to an adult facility. Remorse and insight

83. Despite there now being a number of positive factors in the young person’s subjective circumstances that bode well for his prospects of rehabilitation, his remorse and insight is not one of them.

84. As of July 2024, the young person is described as saying that he did not agree with there having been non-consensual intercourse, but that he maintains his pleas of guilty. He expressed that that doesn’t understand why the victim “is saying I threatened to kill her, if I was going to kill her, I’d just kill her and I’d tell the judge that too”. The young person agreed that he thought the offences were serious, but as to the impact he thought this might have had on the victim, he stated “probably nothing”.

85. However, in a letter from his mental health and disability advocate, Rory O’Brien, dated 1 August 2024, the young person is described as demonstrating “emerging maturity, indicating a reckoning with his actions and the seriousness of his situation”. The young person is described as a “warm and friendly young man”, with the offending behaviour in stark contrast to his general character. The advocate expresses that the Court “not think in black-and-white, and to not view the young man before them as a criminal … we have a young person, unguided, vulnerable and interacting with someone they understood to be socially equivalent to them”. The advocate further expresses that the young person’s experience “has been shaped by exclusion; exclusion which has contributed to the behaviour contained within these charges. I worry that the continuation of exclusion through extended imprisonment can only worsen things for [the young person]”. It is not clear whether the advocate is aware of the nature of the offending beyond the charges. Most recently, the advocate expresses that there are indications of a “maturing sense of self” and connection to cultural heritage in the young person.

Consideration as to subjective circumstances

86. Overall, it is clear that the young person still needs to develop understanding and insight into the seriousness of his conduct, and that he has quite some way to go before he will exhibit remorse. Given that he was a young person at the time of the offending, and still remains a person not at full grown emotional maturity, I do not place significant weight on his current presentation in this regard. It does though still have a place in informing the role of community protection in the sentencing exercise, at least in the immediate future. The forensic psychologist believes that the young person is “capable of developing insight into the harm he has caused others through his behaviour” and recommends that this should be a focus of ongoing psychological therapy. He finds that the young person is aware that he has significant problems, and that the young person wants to do something about it.

87. The young person is assessed as having, overall, a low level of protective factors and a moderate-high level of risk factors. He is therefore assessed as having a moderate-high risk of engaging in further sexual offence behaviours. The young person expressed to Dr Pratt that pornography had somewhat shaped his sexual world. Dr Pratt opines that the young person does still need to develop awareness and understanding of the dynamic which supported the offending behaviours and that engagement in a mandated course of treatment focused on the basis of his behaviours leading to the charges would be of benefit to him.

88. Nonetheless, the forensic psychologist finds that the young person’s greatest offending risk is non-sexual in nature, with social isolation and frustration potentially leading to engagement in anti-social ways. Dr Pratt believes that the risk of reoffending could be adequately managed through supervision and treatment conditions in the community, with no indications nor concerns as to the young person being non-compliant with imposed conditions. He finds that the young person would benefit from medium-to-long-term engagement and support within a supervision arrangement when in the community.

89. Similarly, Ms Edwige finds that the young person has positive prospects of rehabilitation if he is provided and able to access therapeutic work that focuses on skill development in the areas of self-regulation, coping skills, resilience building, and self-esteem. With the “appropriate supports and treatments, [the young person] has the ability to make positive gains”. Ms Edwige recommends that the young person have opportunities to reconnect to his culture and to engage in healing practices to enhance his wellbeing.

90. The support letter from PCYC speaks of the young person as being a “bright and capable young man”, who has been failed by the education and child protection system. The young person is described as, despite his challenges, having shown a determination to better himself and improve his life. He has engaged well with PCYC since 2016. The PCYC team leader expresses that if “given the right support and opportunities, I have no doubt that [the young person] can achieve great things” and that the young person “has the potential to make a positive contribution to society with the right guidance and supportive environment”.

91. The Office for ACT ATSICYP encourage that the young person be provided with the opportunity to rehabilitate properly.

Pleas of guilty

92. The young person pleaded guilty in the Supreme Court. This was after negotiations took place at a criminal case conference. The prosecution accepted that there was obvious utilitarian value in the pleas of guilty given the nature of the offending. I accept that there was, with the victim and several child witnesses not required to give evidence, albeit resources were expended for the purposes of intermediary reports. In accordance with Blundell v The Queen [2019] ACTCA 34 at [12], I consider a reduction in the range of 15 to 20 per cent is appropriate. Noting the significance of a plea of guilty to the type of charges here, a reduction towards the upper end of the range, accounting for rounding, will be afforded.

Sentencing principles

93. The sentencing exercise involves engagement with ch 8A of the Sentencing Act, with ss 133C and 133D of particular relevance. That is, the Court must consider the sentencing purpose of promoting rehabilitation and may give more weight to this purpose than it gives any of the other purposes stated in s 7(1) of the Sentencing Act. The Court must also have particular regard to the common law principle of individualised justice. Further, the Court is to consider the young person’s culpability for the offence having regard to his maturity, must consider his state of development, and must consider the past and present family circumstances of the young person.

94. In addition, s 133G of the Sentencing Act, relating to a sentence of imprisonment on a young person, is of relevance. In this matter, it is plain that, having considered possible alternatives, no penalty other than imprisonment is appropriate: s 10 Sentencing Act. This is so even in circumstances where the Sentencing Act provides in relation to young offenders that a sentence of imprisonment must be a last resort: s 133G(2) Sentencing Act. In so ordering, the terms of imprisonment are to be for the shortest appropriate term (s 133G(2)). The Court must also consider making a combination sentence (s 133G(3)), which, in this matter, is the appropriate sentence outcome for reasons that I will come to.

95. The observation of Mossop J in DPP v Rowntree (a pseudonym) [2024] ACTSC 155 as to the ch 8A provisions that “it must be recognised that these provisions have the effect of reducing what would otherwise have been the appropriate starting point for any sentence” (at [61]) was drawn to my attention on behalf of the young person. I accept this, but nonetheless, it remains that stern sentences are warranted to reflect the seriousness of the offending.

96. The sentencing exercise in this matter also raises for consideration s 133H of the Sentencing Act, which provides, in effect, that when the young offender is under 21 years of age when the sentence is imposed, the sentence is to be served at a youth detention centre unless the young person is transferred to an adult correctional facility. The Children and Young People Act 2008 (ACT) (Children and Young People Act) provides, in s 111, a discretion for the director-general to transfer such a young person to an adult facility. To do so, the director-general must be satisfied that the transfer is in the “best interests of the young detainee or other young detainees” (s 111(2) Children and Young People Act) , and certain matters including whether the young person is likely to be vulnerable at an adult facility and the availability of rehabilitation services are to be considered. The material before the Court in this matter suggests that the young person is well supported and is best placed to remain in a youth detention facility. To the extent such matters can be predicted, it seems most likely that, for any period he continues in custody until he is 21 years of age, he will remain in a youth facility. Such an outcome, on the information known to this Court, would seemingly be in his best interests and best support his rehabilitation.

Current sentencing practice

97. While acknowledging the limitations that comparable cases provide, the prosecution assisted with the following authorities: (a) R v PM [2009] ACTSC 24 (R v PM), which involved a 17 year old offender who sexually assaulted a stranger of an unknown age. There was digital and penile/vaginal penetration, amongst other sexual acts, committed while the victim screamed and struggled. In relation to the acts of sexual intercourse without consent, a maximum penalty of 12 years imprisonment applied. An act of sexual assault committed with physical violence attracted a maximum penalty of 17 years imprisonment. Physical injuries were caused. Property was also stolen from the victim. The offender had a significantly disadvantaged background, with no criminal history. He was remorseful. The offending occurred in one isolated occasion. For the assault and sexual offending, a total effective sentence in the range of 8 to 9 years was indicated prior to the reduction for the plea of guilty. The young person was released on a combination sentence after a period of three years in custody. (b) R v Haven (a pseudonym) [2022] ACTCA 61 (R v Haven) involved a 17 and two month old offender engaging in an act of sexual intercourse without consent with a person who had previously been in an intimate relationship with him and who was a year younger than him. The offending occurred in an isolated incident and involved the young person grabbing the victim by the throat and removing her clothing. An act of penile/vaginal penetration occurred amongst other attempted sexual activity. The young person had a limited criminal history, the Bugmy principles were enlivened, and there were not good prospects of rehabilitation. A maximum penalty of 12 years imprisonment applied. A sentence of three years imprisonment, prior to the reduction for the plea of guilty, was indicated. The sentence was wholly suspended. The Court of Appeal dismissed a Crown appeal against sentence, although observed that the sentence imposed “was undoubtedly lenient” (at [72]).

98. While both authorities have aspects of similarity and dissimilarity to the offending that occurred here, it is apparent that R v PM has aspects of more aggravating features, and R v Haven has aspects of less aggravating features. Both have the significantly distinguishing feature of involving an isolated incident and different applicable maximum penalties.

Time in custody

99. The young person was arrested on the day that the warrant was executed, on 9 June 2023. He has remained in custody solely in respect to these offences since that time, a total period of 671 days. The sentences to be imposed will be backdated to reflect this.

Consideration

100. The sentencing of this young person necessitates the imposition of stern sentences that reflect sentencing purposes of denunciation, accountability, and recognition of the harm done to the victim and the community. The Court must also ensure that the young person is adequately punished for the offences in a way that is just and appropriate. The only appropriate penalties are plainly ones of imprisonment.

101. There is a discretion available to the Court to give more weight to the sentencing purpose of promotion of the rehabilitation of the young person. I consider that the gravity of the offending here limits the extent to which rehabilitation can be promoted. While the young person’s moral culpability is reduced, as is general deterrence, protection of the community and specific deterrence remain important sentencing purposes.

102. I have also borne in mind what was said by the Court of Appeal in MT v The Queen [2021] ACTCA 26 at [64] (MT v The Queen) that “if a young offender has good prospects of rehabilitation, those prospects will weigh heavily in the sentencing exercise”. I have a hesitation with characterising this young person’s prospects of rehabilitation as “good” at this time. There are certainly prospects of rehabilitation, but the assessed risks of reoffending, and the limits to his remorse and insight, even accounting for his maturity, limit optimism as to his prospects of rehabilitation. This is not to say that I have disregarded the positive growth he does demonstrate in this regard, nor that a number of psychologists expect he has prospects of rehabilitation with continuing support. But this is a sentencing matter involving a young person where I do not consider it appropriate to give more weight to the sentencing purpose of promotion of the rehabilitation of the young person. This sentence purpose will still be given significant weight, it remains “infused into all aspects of the sentencing exercise” (MT v The Queen at [84]), but I do not find it appropriate in this matter to give it more weight than other sentencing purposes.

103. I consider it appropriate to balance the competing sentencing purposes through the imposition of appropriate head sentences, with a suspension after a period of imprisonment that will see the young person released before any mandatory transfer to an adult correctional facility could occur. This will best support his rehabilitation, while also facilitating community protection through a lengthy period of supervision in the community.

104. I am not satisfied that a release much earlier than when he is in the range of 21 years is appropriate, this being the sentence outcome sought on the young person’s behalf. The seriousness of the offending cannot be reflected by any lesser period in fulltime detention than what is to be imposed. The prosecution cautioned against the crafting of a sentence that avoids the effect of the legislation in terms of the custodial environment, which I accept. However, there are two factors of prominence that have informed the appropriate time at which to suspend the term of imprisonment, with this being a time shortly before he turns 21 years of age: (a) The young person presents as having plenty of potential, although this potential in the community remains untested due to the period he has now spent, and will spend, in custody. Nonetheless, there is a solid basis upon which to be satisfied that he has genuine prospects of rehabilitation provided appropriate ongoing support and supervision occurs; and (b) Community protection is best promoted by having the young person subject to a lengthy period of supervision once in the community, which will support his return to the community and his stated intentions to engage in prosocial activities and employment, and to avoid substance misuse.

105. I otherwise observe what was said by the Court of Appeal in MT v The Queen at [85] as to the principles that apply when fixing the unsuspended period of a partly suspended sentence, namely: There is no established practice regarding the relative lengths of the unsuspended and suspended parts of suspended sentence orders, and it is very often the case that the unsuspended part occupies considerably less than 50 per cent of the total term. st

106. The date for the suspension will be at a time close to the young person’s 21 birthday, with a slight adjustment for rounding purposes.

107. I reiterate the observation made earlier that the young person’s rehabilitation and best interests are most likely served by his remaining in a youth detention facility during this period. The young person, despite having reached adulthood, still presents with vulnerabilities that are likely exacerbated by the custodial environment. It would be detrimental to his rehabilitation, and ultimately to the community, if he is not assisted in his rehabilitation in the environment most conducive to this, being the youth detention centre.

Child sex offender registry

108. On behalf of the young person, application was made seeking that the Court find that including the young person on the register is inappropriate in the circumstances of the case: s 9(3) Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act). The prosecution opposed this application, submitting that the primary object of the Act is protective rather than punitive.

109. Section 9(4) of the Sex Offenders Act provides mandatory considerations for the court in an application of this type: (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.

110. The offences here were certainly serious, with a form of severity in the offending, and seriousness as to the surrounding circumstances. The young person was at the upper end of the age range of a young person offender. There was significant harm caused to both the victim and the community, and the attempts at rehabilitation, at least in respect to sexual offending, are at this stage limited.

111. Nonetheless, other circumstances, being the subjective circumstances of the young person, provides a level of explanation for the offending outside of it being a reflection of him being a person with an inherent predilection to sexual offending. The extent to which the young person poses a risk to the lives or sexual safety of other persons is not of significant concern.

112. This view is drawn primarily from the information provided by the forensic psychologist. Dr Pratt finds that the young person does not show any signs of paedophilia or interest in young teenage girls. The young person does not “appear to present with the traits of a ‘committed’ adult sex offender”. It is opined by Dr Pratt that the offences “do not obviously nor logically relate to a serious specific future threat to children in the community that will in any way be mitigated or reduced by [the young person] being placed on a Child Sex Offender Registry”.

113. Further, Dr Pratt opines that inclusion of the young person on the registry would “rather than provide a protective factor for the community … could potentially raise [the young person’s] risk due to significant negative impacts upon him in terms of accessing meaningful employment, potential housing options and the mis-match of what being placed upon the Child Sex Offender Register is meant to achieve in regard to protecting the community and what it will actually result in achieving in this case”. Dr Pratt explains that there is “a body of research over the past 20-plus years indicating that in cases such as [the young person’s], recidivism risk may increase through inclusion” on Registers.

114. I otherwise consider it appropriate to bear in mind that the orders to be imposed will continue protection of the community by way of detention for a further not insignificant period. The young person will continue to grow in his maturity in this period, as well as continue his rehabilitation. His rehabilitation will then continue to be supervised for a significant period upon release. I am satisfied that it is inappropriate in the circumstances of the case to include the young person on the register.

Orders

115. For those reasons, the following orders are made: (1) On the charge of aggravated sexual intercourse with young person (CC CAN 2023/978), the offender is convicted and sentenced to 38 months imprisonment, reduced from 48 months on account of the plea of guilty, to commence on 9 June 2023 and end on 8 August 2026. (2) On the charge of aggravated sexual intercourse with young person (CC CAN 2023/979), the offender is convicted and sentenced to 38 months imprisonment, reduced from 48 months on account of the plea of guilty, to commence on 9 February 2024 and end on 8 April 2027. (3) On the charge of aggravated sexual intercourse with young person (CC CAN 2023/980), the offender is convicted and sentenced to 38 months imprisonment, reduced from 48 months on account of the plea of guilty, to commence on 9 October 2024 and end on 8 December 2027. (4) On the charge of aggravated sexual intercourse with young person (CC CAN 2023/985), the offender is convicted and sentenced to 28 months imprisonment, reduced from 36 months on account of the plea of guilty, to commence on 9 April 2026 and end on 8 August 2028. (5) On the charge of aggravated act of indecency on a person under 16 years (CC CAN 2023/971), the offender is convicted and sentenced to 24 months imprisonment, reduced from 30 months on account of the plea of guilty, to commence on 9 November 2026 and end on 8 November 2028. (6) On the charge of aggravated sexual intercourse with young person (CC CAN 2023/983), the offender is convicted and sentenced to 28 months imprisonment, reduced from 36 months on account of the plea of guilty, to commence on 9 March 2027 and end on 8 July 2029. (7) On the charge of aggravated threat to kill (SCCAN 2023/400), the offender is convicted and sentenced to 28 months imprisonment, reduced from 36 months on account of the plea of guilty, to commence on 9 November 2027 and end on 8 March 2030. (8) The total period of imprisonment of 6 years and 9 months, to commence on 9 June 2023 and end on 8 March 2030, is to be suspended after 3 years, from 8 June 2026. (9) The offender is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 years, 9 months, and 1 day, from 8 June 2026 to 8 March 2030, with the following additional conditions imposed: (a) That the offender accept the supervision of the Director-General of ACT Corrective Services and comply with all reasonable directions of the Director-General of ACT Corrective Services for the period of the good behaviour order or such lesser period as deemed appropriate by the person supervising him. (b) That the offender attend educational, vocational, psychological, psychiatric or other programs or counselling as directed by the person supervising him. (10) Pursuant to s 9(3) of the Crimes (Child Sex Offenders) Act 2005 (ACT) the young person is not a registrable offender.

116. In making the sentence order in respect of the offence of aggravated threat to kill (SCCAN 2023/400), the additional offence of possess offensive weapon with intent (CC CAN 2023/806) was taken into account.

I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 21 May 2025