DPP v Loughton

1. On 4 December 2024, a jury returned verdicts of guilty on the following counts on an indictment against the offender: (a) Count 2: Act of indecency on a person under the age of 16 years (CAN 2969/2023). (b) Count 3: Act of indecency on a person under the age of 16 years (CAN 2970/2023). (c) Count 5: Incest with a person under the age of 16 years (SC CAN 448/2023). (d) Count 6: Incest with a person under the age of 16 years (SC CAN 449/2023).

2. The offender is also charged with a transfer charge of common assault (CAN 3387/2023).

3. The maximum penalties are: (a) Counts 2 and 3: Imprisonment for 10 years (Crimes Act 1900 (ACT), s 61(3)). (b) Counts 5 and 6: Imprisonment for 15 years (Crimes Act, s 62(2)). (c) Common assault: Imprisonment for 2 years (Crimes Act, s 26).

4. At the time of sentence, the name of the offender had been anonymised to protect the identity of the victim. Since that time, the victim has consented to the publication of the offender’s name. Following confirmation of that consent, on 19 May 2025 I discharged a non-publication order which had been in force in relation to the offender’s name. The victim’s consent also operates to permit publication of the offender’s name under s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Facts

5. I was not the trial judge. The parties agreed that the evidence before the jury would warrant the findings of fact which were set out in the prosecutor’s submissions. I find the facts consistent with the facts there set out. Certain aspects of the facts were clarified during oral submissions.

6. My findings of fact indicate that I am satisfied beyond reasonable doubt of the guilt of the offender on the transfer charge of common assault.

7. The victim and the offender are sisters. The victim was born in 2006 and was under the age of 16 when the offending occurred. The offender was born in 2002 and was either 18 or 19 years old at the time of the offending. The parents of the victim and the offender were divorced. The victim and the offender lived in the same house with their mother and stepfather.

8. Prior to these offences, the victim and the offender were close and had a very good relationship.

Events relating to count 2 and count 3 (acts of indecency)

9. These counts occurred on 1 April 2021 at the family home. The offender was 18 years and five months old. The victim was 14 and a half years old.

10. The victim was on the offender’s bed spending time with the offender. At this time, the victim was lying down with her knees up and the offender was either kneeling or sitting.

11. The victim noticed the offender was in a childish or babyish mood. The offender put her hands on the victim’s knees and spread the victim’s legs apart. The offender cupped the victim’s breasts and tried to pull the victim’s top up. This conduct is the act of indecency (count 2). The victim pulled her top back down to prevent the offender engaging in this behaviour. The victim left the offender’s bedroom and returned to her own bedroom.

12. Approximately 13 minutes after the act of indecency on this day, the offender entered the victim’s bedroom on her way to the shower. The offender was naked and sat on the victim. The victim told the offender to stop and started to record the conversation.

13. During the audio recording, two female voices can be heard. In the recording, the female identified as the offender can be heard speaking in a high-pitched, childish way and making baby noises while giggling. In the following, where the names of the victim or offender are said, I have substituted “victim” or “offender”. OFFENDER: It's a (indistinct) VICTIM: [Offender], get your naked body off of me please. OFFENDER: It's not on you. Oh, yeah- - VICTIM: Yes it is. OFFENDER: Can I put my finger on you? VICTIM: No. Stop. OFFENDER: (laughs) VICTIM: I love you. OFFENDER: No, no you don't. VICTIM: [Offender]- - OFFENDER: You don't love me (indistinct) VICTIM: [Offender]. (background noise) VICTIM: Fucking hell. OFFENDER: Okay I'm back because I know you love me. VICTIM: Hi I love you but can you please go sh- - ow my gosh - - please stop - - ew [Offender]. [Offender] please don't come into my room when you're naked. OFFENDER: Why? VICTIM: Because it's weird. OFFENDER: (laughs) I know. That's why I do it. VICTIM: It's weird go shower. The- - OFFENDER: (laughs) Bye. VICTIM: Goodbye.

14. When sitting on the victim, the offender touched the victim’s buttocks and tried to touch her breasts. The sitting naked upon the victim, the touching of her buttocks, the attempt to touch her breasts and the offender saying “Can I put my finger on you” are the matters that amounted, collectively, to an act of indecency (count 3).

Count 5 (incest) and transfer charge (common assault)

15. These offences occurred in the period when the offender was between 18 years and nine months old and 19 years old. The victim was between 14 years and 10 months old and 15 years old. The victim was a regular member of the Girl Guides, who usually met every Wednesday for approximately two hours. Between 12 August 2021 and 15 October 2021, Canberra was under the Covid 19 lockdown protocols. During the Covid 19 lockdowns, the group would meet virtually. At the time of the offences, the victim was in her bedroom participating in a Zoom call with her Girl Guides group on her laptop.

16. On this occasion, the offender entered the victim’s bedroom while the Zoom call was in progress. The victim was sitting on her bed with her laptop. The victim noticed the offender was in a childish mood, and it is when the offender was in these types of moods that the offences occurred.

17. As a result of her observations, the victim turned off the microphone and camera on her laptop.

18. The offender shut the victim’s bedroom door and approached the victim. The offender pushed the victim down by the shoulders and proceeded to put her hands around the victim’s neck, pinning her down (transfer charge). The offender then pulled the victim’s pants down.

19. The offender inserted her fingers inside the victim’s vagina, which caused physical pain to the victim (count 5). The evidence did not establish that the penetration was more than momentary. The victim could see the other participants on the Girl Guides’ Zoom conference and considered turning the camera on so she could gain some assistance. The victim did not do this as the Girl Guides’ meeting consisted of a variety of ages, including much younger girls. The victim did not want to expose the other girls to the incident. The victim felt alone and vulnerable, and tried to tell the offender to stop.

20. When the offender finished, she got up and left the room, acting as if nothing had happened. After the offender left the room, the victim exited the Girl Guides’ Zoom call. The victim then received a message from a friend who was also part of the Zoom call, enquiring why the victim had left the call.

Count 6 (incest)

21. On 10 May 2022, between 9:00am and 10:00am, the victim and the offender were at home. The offender was 19 and a half years old and the victim was just over 15 and a half years old.

22. The victim was in her room getting changed and doing her makeup. The victim was standing in front of her mirror when the offender opened the victim’s bedroom door, came in and stood behind the victim.

23. The offender, while standing behind the victim, placed her hands so they were cupping the victim’s breasts without saying anything.

24. The offender then moved her hands down until she was touching the victim’s inner thighs. The next moment the victim remembers is being on her bed on top of the covers with her pants and undies around her ankles.

25. The victim was on top of the covers and the offender was on top of the victim, with the offender’s legs on the victim’s stomach. The offender then put her fingers inside the victim’s vagina (count 6).

26. The offender had one hand inside the victim’s vagina and the other hand beside the victim on the bed. The offender had two fingers inside the victim and was moving her fingers in and out, causing pain to the victim and causing the victim to feel sore in her inner thighs and vagina. The victim stated that her vagina and thighs were sore. The evidence did not establish that the penetration was of any particular duration, although it was long enough for the offender to move her fingers inside the victim in the manner indicated. The overall incident lasted for approximately 10-15 minutes, after which the offender finished, got up and left the victim’s bedroom.

27. The victim went to the bathroom to clean herself up and used toilet paper to wipe her vagina. The victim wiped blood away from her vagina and the surrounding area. There was also a small amount of blood on the victim’s underwear.

28. The victim proceeded to scrub the blood from her underwear and placed the underwear in with the rest of the clothes to be washed.

29. At the time of this assault, the offender did not appear to the victim to be acting differently from her usual demeanour. Usually, when these incidents occur, the offender acted in a babyish mood, laughing and giggling with a high-pitched voice, which alerted the victim to possible danger.

30. On this occasion, the victim was shocked at the assault as she did not have a chance to mentally prepare herself like she usually did.

31. Later that day, the victim attended her usual shift at McDonald’s restaurant at Gungahlin. During her lunch break, the victim confided in her manager about what had happened.

32. Her manager contacted police, and two officers attended the McDonald’s at Gungahlin. One of them was wearing his body-worn camera which captured the initial disclosure by the victim.

33. The victim had started disclosing information around 2021 while her sister lived in the same house. After the police investigation started, the offender moved out of the family home. The victim made disclosures to her school friends. The victim also made complaints to her mother, who does not accept her allegations as truthful, as well as her Year 9 science teacher. Following the disclosures to one of her school friends, she recorded events in a document which was put into evidence at the trial.

Victim impact

34. The victim provided a victim impact statement which she read in court.

35. The victim impact statement refers to a course of conduct over two years, some of which was relied upon as tendency evidence in the case. The victim speaks of pleading with the offender to stop and not being believed by her mother or the offender. She records the consequences for herself of having made the complaints, and having to move out of home and live in a youth refuge. She refers to being isolated from her mother and other family members after she had reported what had occurred. She also refers to the psychological consequences that have arisen from the offending, including a lack of trust in people.

Objective seriousness

36. The age difference between offender and victim was approximately four years. There was therefore a degree of power imbalance. The offending involved an abuse of that differential. Incest inevitably involves an abuse of the family relationship and a breach of trust. So far as the acts of indecency are concerned, the breach of trust arising from the family relationship is an aggravating factor.

37. Count 2 is at the low end of objective seriousness.

38. Count 3 is more serious as it involved a variety of acts, and those acts are more serious. The degree of physical intimacy that is likely to exist between sisters who are close makes the physical contact less serious than if occurring between persons without that relationship. I would place it at the low end of the mid-range of objective seriousness for this offence.

39. The transfer charge of common assault involved the offender putting a hand round the victim’s neck, pinning her down. Obviously, the neck is a sensitive area of the body. I characterise this offence as being at the low end of the mid-range of objective seriousness.

40. Count 5, the first count of incest, involved what appears to have been a brief digital penetration of the victim’s vagina. Notwithstanding that a charge of incest is inevitably serious, I would put this at the low end of the range for this offence.

41. Count 6, the second count of incest, also involved digital penetration. Based upon the description of the incident, it was longer than the acts involved in count 5, but still brief. It is still only in the low range of objective seriousness for this offence.

Subjective circumstances

42. The offender is 22 years old. At the time of the offending, she was between 18 and 19 years old. She was born in Canberra. Her parents divorced when she was eight years old. Following her parents’ separation, she remained primarily in her mother’s care. She ceased contact with her father two years ago. Following the offending, the offender’s sister (the victim) moved out of her mother’s house and lived with her father. Her mother has remarried, and the offender’s mother and her new husband remain supportive of the offender.

43. The offender has completed secondary education, and has completed an advanced diploma of interior design at the Canberra Institute of Technology. In the period since she completed her diploma in 2022, she has been in employment at Coles supermarkets, working an average of four days per week over the last 12 months.

44. She has pro-social companions. She denied any problematic use of alcohol or any use of illicit drugs.

45. She (along with the victim) had been the victim of sexual assault herself, although she described it as relatively minor and not causing any ongoing psychological distress for her.

46. She was retrospectively diagnosed by psychologist Matt Visser as having suffered, during 2023 and up to December 2024, a period of adjustment disorder with mixed anxiety and depressed mood. He identified that incarceration may result in increased anxiety and low mood. Mr Visser also recorded that her personality style, which he described as passive and submissive, may lead her to be at a higher risk of manipulation and coercion than the average person if she was incarcerated.

47. Her relationship history, and other evidence from character witnesses, does not indicate any sexual interest in females generally.

48. She maintains innocence in relation to the offending and has demonstrated little victim empathy.

49. She is assessed as being at a low risk of reoffending, suitable for community service work and suitable for an intensive correction order.

50. Several character references, including from her mother, stepfather and aunt, all attest to her good character and her quiet and responsible nature.

Criminal history

51. The offender has no criminal history.

Time in custody

52. The offender has spent no time in custody in relation to the offending.

Consideration

53. The gravity of the offences is indicated by the maximum penalties specified by the legislature. Incest is obviously a very serious offence.

54. The offender was a young adult at the time she committed the offences. She is still a young adult now.

55. The motivation for the offending remains obscure. The evidence indicates the offender does not have a sexual interest in females generally. Counsel for the offender suggested that the conduct could be characterised as “tomfoolery”. I decline to characterise it in that way because that would tend to downplay the gravity of the offending. However, I do accept that, in light of the absence of any clear motivation, it was conduct engaged in without appreciation of its gravity. It certainly involved a degree of exploitation of the power differential that existed, by reason of their respective ages, between two sisters.

56. Each of the purposes of sentencing is relevant. Plainly, in the present case, the court has to work out the appropriate balance between the goal of rehabilitation on the one hand and — on the other hand — the goals of holding the offender accountable for her actions, specific and general deterrence, and recognising the harm done to the victim.

57. Counsel for the prosecution provided a summary table of sentences imposed by the Supreme Court in relation to charges of incest. Most of those were not relevantly comparable because they involved offending by adult men, in circumstances where there was a significant age difference between those men and their victims: R v SH [2015] ACTSC 25; R v BNS (No 2) [2016] ACTSC 145; DPP v van de Zandt (No 3) [2023] ACTSC 359; DPP v Alexander Waters (a pseudonym) [2025] ACTSC 84. The final case, R v AQ [2021] ACTSC 74, involved a boy aged between 12 and 15 offending against his sister who was aged between 8 and 11. This charged course of conduct over a two-year period included oral sex. He pleaded guilty and received a 25 percent discount on his sentence. On the incest charge, he was given a suspended sentence of imprisonment of six months.

58. The offender’s risk of reoffending was assessed by the author of the intensive correction assessment report to be low, and I agree, having regard to the evidence, that such an assessment is accurate.

59. The offender has demonstrated no remorse as she continues to deny the offending.

60. There is no doubt that a custodial sentence is warranted in relation to the incest offending. The substantive issue is whether or not a period of full-time detention is required to be served as part of that sentence. It is significant that there is no acceptance of responsibility and no remorse. Similarly, as pointed out by counsel for the prosecution, the offender continues to have the support of those who accept her continuing denials, emphasising the need for a sentence to give effect to the purposes of sentencing of specific deterrence and accountability.

61. Addressing the offending in chronological order, the appropriate sentence on count 2 is a good behaviour order. The same as the case with count 3. On count 5, a sentence of six months’ imprisonment is appropriate. On the transfer charge, having regard to the context in which the acts occurred, a sentence of one month’s imprisonment is appropriate, but that should be concurrent with the sentence on count 5. On count 6, a sentence of eight months’ imprisonment is appropriate. The aggregate sentence is 14 months. Having regard to the separate occasions on which the offending occurred, the sentences of imprisonment relating to the two incidents should be cumulative. Totality does not require the introduction of concurrency between the incidents.

62. The next issue is how those sentences should be served. This was the substantive point of difference between the submissions made by the parties. Counsel for the prosecution submitted that no sentence other than a sentence involving a period of full-time detention would be appropriate. Counsel for the offender submitted that an intensive correction order with a period of community service would be appropriate.

63. In my view, the purposes of sentencing — and, in particular, the requirements of deterrence, accountability, denunciation and recognition of harm done to the victim — will be adequately addressed if each of the custodial sentences is served by way of an intensive correction order, with a substantial component of community service.

Orders

64. The orders of the Court are: (1) On count 2, act of indecency with a person under 16 years (CAN 2966/2023), the offender is convicted and required to enter into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months. (2) On count 3, act of indecency with a person under 16 years (CAN 2970/2023), the offender is convicted and required to enter into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months. (3) On count 5, incest (SC CAN 448/2023), the offender is convicted and sentenced to imprisonment for six months from 2 May 2025 to 1 November 2025 which sentence is to be served by intensive correction in the community with the additional condition that the offender perform 120 hours of community service work. (4) On the transfer charge of common assault (CAN 3387/2023), the offender is convicted and sentenced to imprisonment for one month from 2 May 2025 to 1 June 2025 which sentence is to be served by intensive correction in the community. (5) On count 6, incest (SC CAN 449/2023), the offender is convicted and sentenced to imprisonment for eight months from 2 November 2025 to 1 July 2026 which sentence is to be served by intensive correction in the community with the additional condition that the offender perform 120 hours of community service work. Note: Two separate sentences require 120 hours of community service, and therefore a total of 240 hours is required to be performed.

************** Publication Note At the time these reasons were delivered, [4] above had read: “The name of the offender has been anonymised to protect the identity of the victim.” Following the victim consenting to the publication of the offender’s name, that paragraph was amended on 19 May 2025 to explain why the offender’s name may now be published.

I certify that the preceding sixty-four [64] numbered paragraphs and Publication Note are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: