DPP v KQE

Elkaim J:

1. On 20 June 2022, KQE pleaded guilty to two offences: (a) One count of engaging in sexual intercourse with a child under 10 years of age (SL) (CH2020/857), contrary to s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 17 years’ imprisonment. (b) One count of engaging in sexual intercourse with a child under 16 years of age (LT) (CC2021/3263), contrary to s 55(2) of the Crimes Act. The maximum penalty for this offence is 14 years’ imprisonment.

2. There is a detailed Statement of Facts in Exhibit A. The following is a summary.

3. SL was born in 2013. She was seven years of age in March 2020. She lived at home with her mother and brother. KQE was a friend of the brother and was sleeping over at SL’s home. He was then 17 years of age.

4. During the night SL was woken up by KQE and taken to a computer room. He placed his penis in her mouth and ejaculated. He did the same on the next night. The single count ‘rolls up’ the two assaults.

5. LT was born in 2008. In March 2021 she was 12 years of age. By this time KQE had turned 18. He was on bail in respect of the charges concerning SL. This is an obvious aggravating factor.

6. On a Saturday night LT and her half-brother went to a residence in Charnwood. KQE lived in this residence. She remained overnight and into the following night. On the Sunday evening, after all other persons had retired, after some initial kissing and touching KQE took LT to a bedroom. He inserted his penis into her vagina. He used a condom. LT was menstruating at the time. She suffered pain in her vagina area.

7. There is a victim impact statement prepared by SL’s aunt. She correctly observes that: the true impact of the assault to [SL’s] mental health and future relationships is difficult to see at the moment. She has experienced things that no child should ever have to. She has had to rebuild trust with people in order to begin to feel safe again. She needs to learn about the difference between good and bad secrets, and that she can be honest about what happened. She needs to understand that it is not her fault and she has nothing to feel embarrassed about.

8. There is also a victim impact statement from SL’s mother. She says her daughter regressed in a number of ways, including toileting, anger control and trust. She talks about the effect on the entire family, including the guilt felt by SL’s brother.

9. There is a victim impact statement from LT’s mother. She says that her daughter has been affected: emotionally, mentally, and physically. After this was exposed, she showered a lot more than usual, as it made her feel dirty and shameful. She has had nightmares and will not sleep well if at all through the night and then struggles to get out of bed in the morning. She has become so skinny. It has kicked her off sexually.

10. LT’s mother also describes the effects on her including Post Traumatic Stress Disorder (PTSD) and bouts of depression. She has lost weight and she is going grey. She has had to postpone her studies. She talks about the estrangement of her daughter from her siblings. She says the family has been torn apart.

11. It is most troubling that LT has not returned to school for almost two years.

12. There is also a statement from LT’s older sister. She describes her distress when she found out what had happened. She correctly describes the events as “disgusting predatory and selfish behaviour”. She says this about her sister: It has affected [LT] in so many ways. She has tried to self-harm a few times. She would stay up all night and sleep all day. It also affected her appetite for food. She didn’t want to go to school anymore. And since the incident, [LT’s] sexual behaviour has really kicked off, seeking more sexual attention.

13. The facts and the victim impact statements describe the harm and tragedy that has been inflicted upon the two children and their families.

14. The psychological report of Ms Vanessa Edwidge and the pre-sentence report describe the tragedy that has surrounded KQE’s life. As already stated, he was born in 2002.

15. The two offences are obviously different, in particular in respect of the age of the victims. There are aggravating factors individually applicable to each victim. For example, the age of SL and the offence against LT being committed while on conditional liberty. The charge against SL must take into account both sexual assaults. LT was part of KQE’s extended family.

16. Notwithstanding the assorted differences I think from an objective seriousness point of view the offences should be regarded, as submitted by the prosecution, at around the mid-range of objective seriousness.

17. The pleas were made late in the process, but nevertheless attract a discount. In particular the two victims have been spared the necessity to give evidence. I think 10 per cent is appropriate with some rounding off.

18. KQE did not have a criminal record prior to these offences being committed. Notwithstanding his young age his personal history could well have directed him into criminal conduct. Obviously to a lesser degree than for an older person, the absence of a criminal record can still be taken into account.

19. KQE was raised in Canberra, neglected by his mother and frequently abandoned by his father. Alcohol and drugs were used in the home and he sometimes stayed with his grandfather or aunt. He was sexually abused when he was six years old. He told his mother but she did nothing about it. The perpetrator was her partner.

20. His father seems to have come back into his life and wishes to help him in the future.

21. KQE is of Aboriginal heritage. He is now interested in his heritage but that was not part of his upbringing. He told the authors of the pre-sentence report that he had difficulty forming relationships because he was “consumed by negative thoughts”.

22. Because of the manner in which he was brought up he hardly attended school. Nevertheless he did make his way to Year 12 but did not receive a school completion certificate. He has never been employed. He says that he was “too anxious and unqualified to pursue employment in the community”. He has been doing some work while in custody.

23. Not surprisingly, bearing in mind his upbringing, KQE started drinking alcohol when he was 11. Sometimes he would pass out after drinking. He also used drugs which were provided by family members. He says he does not have a problem with drugs.

24. KQE was diagnosed with Asperger’s syndrome when he was six or seven years old. He has felt “confused, misunderstood, and forgetful at times”. He has been depressed since he was a child and his depression has continued and worsened. There have been episodes of self-harm and suicidal ideation. He has become “overwhelmed by anxiety and nervousness, and reported experiencing panic attacks”. He is currently taking antidepressant medication.

25. KQE told the authors of the pre-sentence report that he did not entirely agree with the statement of facts. I was informed today that the dispute was with the police facts and that KQE accepts the agreed statement of facts.

26. In the pre-sentence report, KQE seems to suggest that LT was a consenting partner. He claims that he “had a misunderstanding of the victim’s age”. This is consistent with some of his statements in the agreed statement of facts and, more importantly, consistent with the opinion of Ms Edwidge that: [KQE’s] concept of [LT’s] age was affected by his diagnosis of autism spectrum disorder and the associated features that prevented him from reading social cues and making appropriate social judgements.

27. The pre-sentence report says that KQE has an above average risk of sexual recidivism. The report concludes that he is suitable for an Intensive Corrections Order. Such an order is simply not applicable here due to the severity of the offences.

28. Ms Edwidge examined KQE’s education records. She notes concerns about developmental delay. Psychological testing in July 2007 identified an “extremely low range of functioning intelligence”. Testing in 2013 again identified a “low average range of intelligence”. His reading ability in 2018 was assessed as equivalent to a person aged eight years and one month (thus seven years behind).

29. KQE does not seem to have told Ms Edwidge about being sexually assaulted, but he did describe the significant abuse in the home. Quoting from a relevant text she said: Prolonged exposure to violence may cause children to experience trauma symptoms, including PTSD, resulting in psychosocial and sometimes physical responses that can have lasting effects on children’s development, behaviour and well-being.

30. In her diagnosis, Ms Edwidge says KQE: …is a 19-year-old young man who presents with developmental disadvantage and complex developmental trauma. He has been a victim of long-term exposure to domestic violence and childhood neglect. … [KQE] has a significant trauma history which has impacted on his ability to self-regulate. [KQE] has lacked the supports and interventions required to address his disability. This in my opinion has increased the risk of dysfunction in the areas of language development and functioning in the social, emotional and behavioural domains.

31. Ms Edwidge says that KQE is suffering from PTSD. She also says that he qualifies for a diagnosis of Autism Spectrum Disorder.

32. In respect of the offending, she says: research suggests that people on the Autism Spectrum may engage in sexual behaviours without understanding the implications of their actions or the law. People on the spectrum often have problems with social communication, awareness and experience. That, coupled with other hallmark traits associated with autism, including intense interests and repetitive behaviours, as well as sensory differences can unwittingly cause problems when they start dating or exploring their sexuality.

33. She says that: [KQE] has sequestered himself from others due to significant social impairments and awkwardness. His fascination with games has led to poor social skills and development. It has also left him largely isolated from others. Such a lack of attunement with an insight into others could easily render a lack of knowledge about another person, such as their age, last name, address, etc. People on the autism spectrum present with conceptual incompetence. This impairs their ability to form conceptually complex and elaborated representations of their own personal attributes, let alone accurate ones.

34. Ms Edwidge concludes: it is my opinion that [KQE] is a young man that meets the criteria in the DSM 5 for post traumatic stress disorder and autism spectrum disorder. It is my opinion that [KQE] has been bereft of support throughout childhood and adolescent years. He has not been afforded the opportunity to have regular therapy to build his capacity in the areas of social communication and interaction, receptive language development, social-emotional reciprocity and stereotyped repetitive behaviours.

35. The sentencing process is complicated by KQE having been a young person when he committed the offences against SL, but an adult (at least theoretically) when he assaulted LT. The sentencing in respect of SL cannot include a non-parole period (s 64(2)(g) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)).

36. If the sentence for the offence against LT exceeds 12 months, it must contain a non-parole period (s 65(1)). The prosecution has proposed two solutions. I prefer the first: structure the sentences such that the sentence for count 1 will have been fully served before a non-parole period in relation to count 2 commences.

37. I note that this structure was used by Penfold J in R v NX [2017] ACTSC 72.

38. Each victim is entitled to know, as is the community, that the assaults upon them have attracted specific punishment. On the other hand, principles of totality suggest there should be a degree of concurrency. However the structure of the sentences, as just discussed, effectively does not allow for any concurrency. Accordingly, I think totality can only be achieved through the length of the sentences and the non-parole period.

39. In addition, because the sentence for the second count will only commence after the completion of the sentence for the first count, the non-parole period will necessarily be much shorter than usual because it must take account the whole of the period of imprisonment. The prosecution agreed with this approach.

40. The prosecution accepts “that the offender has been exposed to considerable deprivation and neglect as a child such as to enliven the principles discussed by the High Court in Bugmy v The Queen (2013) 249 CLR 571”. The prosecution also accepts that KQE’s cognitive and intellectual deficits “will mitigate the court’s assessment of the offender’s moral culpability to an appreciable degree and will engage the Verdins principles”.

41. The Verdins principles are derived from R v Verdins [2007] VSCA 102; 16 VR 269, at [32]: Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[40] 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

42. The first, third and fourth considerations are most relevant here. The reduction in KQE’s moral culpability will be a factor in the sentences I impose.

43. The prosecution has also highlighted the importance of rehabilitation, in particular as emphasised by s 133C of the Sentencing Act about young persons. In respect of rehabilitation KQE has made some progress through courses in the construction industry. He has completed some certificates and has a supportive letter from Ms Barbara Sheffield who has been involved in his training.

44. Looking at the mandatory considerations in s 133D of the Sentencing Act, they are dominated, in this case, by KQE’s mental health and cognitive disabilities. His appalling family circumstances also play a part, all of these factors suggesting leniency in sentencing.

45. The prosecution has provided me with “comparable” sentences but has noted that the cases from New South Wales and Victoria rest on different sentencing regimes. In addition none of the cases are factually similar. It was suggested that some assistance might be taken from R v Gray [2019] NSWDC 550 (Gray) because in Gray the offender had also been diagnosed with autism and PTSD. The offender had no criminal record and was related to the victim. He was imprisoned for three years with a non-parole period of one year and six months.

46. The difference in maximum penalties makes Gray readily distinguishable from the present case. However some of the comments made by the judge are relevant here.

47. Haesler DCJ observed in Gray: 17. Generally lesser sentences are imposed on youthful offenders than those imposed on adults who commit similar crimes. Considerations of general deterrence and principles of retribution can be of less significance than they would be when sentencing a mature adult for the same offence. Allowance can be made for an offender’s youth; not just his or her biological age: KT v R (2008) 182 A Crim R 571 at [22]; DM v R [2005] NSW CCA 181: Hearne v R (2001) 124 A Crim R 451 and s 6 Children (Criminal Proceedings) Act 1987. 18. As with many sentencing principles they do not all point the same way. Two themes have emerged: one recognises the strong community interest in the rehabilitation of an immature young person whose criminal behaviour is not well formed; the other stresses the protective function of the court, particularly where sexual offences are committed against a child: JM v R [2012] NSWCCA 83.

48. When dealing with the offender’s mental illness his Honour said, at [23]: General deterrence, the impact of a sentence on others who might be tempted to offend as he did, is always of considerable importance in child sex matters but here also the offender can be regarded as being less of a vehicle for the application of this principle than others not so afflicted. Specific deterrence remains important; there must be a constant reminder of the need for Gray to engage in treatment as with that treatment and continuing support it is doubtful he will reoffend: DPP v De La Rosa [2010] NSWCCA 194.

49. Mr Higgins, on behalf of KQE, has urged me to structure a sentence, either through a non-parole period or a suspension, which will result in the immediate release of KQE. Notwithstanding my taking into account, to a very significant degree, the lesser moral culpability of KQE and the need for rehabilitation, the severity of the offending simply does not allow for such a result. He must spend more time in custody. This time will also allow for further work to be done to ameliorate the likelihood of re-offending.

50. KQE was granted bail after being charged with Count 1. Bail was refused when he was arrested for the second charge. He has spent 603 days in custody which should be attributed to both counts. Accordingly, sentencing should begin on 25 March 2021.

51. The two offences have different maximum penalties so that, theoretically, with a similar finding of objective seriousness, Count 1 should attract a longer sentence than Count 2. However the different emphasis placed on rehabilitation when sentencing young persons I think enables me to equate the sentences balancing the various countervailing factors.

52. The total period of imprisonment will be three years, six months and 27 days. I intend to set a non-parole period applicable to only the ‘adult’ offence but calculated as if it applied to the whole term of imprisonment. As I have said above, this will create an impression of an unusually short non-parole period in respect of the second count.

53. I make the following orders: (a) For the offence of engaging in sexual intercourse with a person under the age of 10 years, KQE is sentenced to imprisonment for 21 months and 14 days (reduced from 24 months) to commence on 25 March 2021 and end on 7 January 2023. (b) For the offence of engaging in sexual intercourse with a person under the age of 16 years, KQE is sentenced to imprisonment for 21 months and 14 days (reduced from 24 months) to commence on 8 January 2023 and end on 21 October 2024. (c) The total period of imprisonment is three years, six months and 27 days. (d) I set a non-parole period in respect of Count 2, of one month and 26 days, to commence on 8 January 2023 and end on 5 March 2023.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: