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[2014] WADC 124
District Court of WA
2014-09-11
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : THE STATE OF WESTERN AUSTRALIA -v- A F [2014] WADC 124
Trial of issues - Sexual penetration of a child of or over the age of 13 years and under the age of 16 years - Whether for purposes of sentencing an aggravating factor established that sexual penetration was without consent
Aggravating factor that sexual penetration occurred without consent proved
State of Western Australia : Director of Public Prosecutions
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Marris v The Queen [2003] WASCA 171
Simon v The State of Western Australia [2009] WASCA 10
1 HERRON DCJ: The offender Mr F is charged on indictment dated 9 October 2013 with on 15 April 2013 at Beckenham sexually penetrating RBC, a child of or over the age of 13 and under the age of 16 years by penetrating her vagina with his penis pursuant to s 321(2) of the Criminal Code.
2 On 8 November 2013 before his Honour Judge Birmingham Mr F pleaded guilty to the count on the indictment.
3 Although consent is not an element of the count to which Mr F has pleaded guilty, for sentencing purposes it is an aggravating factor: Marris v The Queen [2003] WASCA 171 [12], [13]; Simon v The State of Western Australia [2009] WASCA 10 [23]. A trial of issues was conducted before me on 16 April and 8 August 2014 to determine the issue of consent.
4 On 16 April the State prosecutor Ms Colborne read out the material facts as follows:
The facts of the count on the indictment are that the complainant in this matter is a 14-year-old female. The offender in this matter was an 18-year-old male. The offender and the complainant met three weeks previously through the complainant's cousin, ES, who is the early complaint witness who is also the neighbour of the offender.
On Monday, 15 April 2013 the complainant attended the home of the offender in company with the offender's housemate. The offender was drinking alcohol and intoxicated. The complainant followed the offender into the lounge room and later into his bedroom, where he has locked the door from the inside. The offender and the complainant spoke for a short time, then began to kiss and cuddle. The offender removed the complainant's shorts and underpants before removing his own pants and underpants.
The offender inserted his erect penis into the complainant's vagina and thrust with his hips, causing his erect penis to move in and out of the complainant's vagina for several minutes until he ejaculated inside the complainant's vagina. The offender did not wear a condom.
The offender and the complainant got dressed. The complainant let the room after hearing the early complainant ES banging on the door and calling out to her. The complainant and early complainant left the offender's home and went next door. The complainant advised ES, the early complaint witness, that the offender had forced her to have sexual intercourse and the matter was reported to the police.
The police attended and spoke with the complainant and the early complainant, ES, and as a result the offender was arrested under suspicion of the offence and later conveyed to the Sex Assault Squad. The offender participated in an electronic record of interview where he admitted to having intercourse with the complainant and that he knew that she was 14 years of age, but claimed that the sex was consensual. The explanation was:
5 Mr F denies he had sexual intercourse with RBC without her consent but otherwise admits the material facts read by the prosecutor. Mr F's position is set out in written sentencing submissions filed on his behalf on 6 November 2013 as follows:
6 The onus is on the State to prove beyond reasonable doubt that the complainant RBC did not consent to being sexually penetrated by, or having sexual intercourse with, Mr F as this would be an aggravating feature of the offending for the purposes of sentencing.
7 The State called the complainant RBC and ES aged 16 years who was a cousin of the complainant. Mr F gave evidence on his own behalf at the resumed hearing on 8 August 2014.
8 RBC was born on 7 February 1999. She was aged 14 years when the offence was committed on 15 April 2013. She was aged 15 years when she gave evidence.
9 RBC was interviewed by the Child Assessment and Interview Team officers on 16 April 2013 and the recording of her interview (MFI 1) was played as her evidence-in-chief. RBC was asked further questions in examination-in-chief directed to an exchange of text messages between her and Mr F on their mobile phones for the period 10 April to 15 April 2013 and schedules of the exchange of text messages were tendered into evidence and marked exhibits 3 and 4.
10 RBC was taken to a number of text messages. Initially she was taken to a text message from the accused to her on 10 April 2013 at 22.52.53 reading 'Sex?'. Thereafter there was an exchange of text messages within a short period of time. RBC explained that she thought Mr F was joking when he sent the initial text message to her which is why she responded with 'Yeah Babe xx',
11 RBC was next taken to a text message she received from Mr F at 23.22.36 reading 'Sex???'. She responded 'In your dreams' which she explained she was saying she did not want to have sex with him.
12 On 12 April 2013 at 21.06.07 RBC received a text message from Mr F reading 'Wanna have sex?' Her response was 'HAHA OMG' which she explained as meaning ha ha oh my god because it was a random comment by Mr F in the context of what they had been texting each other which she did not take seriously.
13 She was then taken to a series of text messages from her reading 'I want sex' on 13 April 2013. The first text message was sent to Mr F at 14.02.39. The next two text messages were sent to a friend JD. RBC explained that the text messages were meant to be sent to JD and the first text message was sent to the Mr F by mistake.
14 She was then taken to an exchange of text messages on 13 April 2013 starting at 17.24.59. RBC explained that what she was conveying to Mr F is that she did not want to have sex with him.
15 Finally, RBC was taken to a series of text messages on 15 April 2013 commencing at 20.55.13 after the offence occurred and when RBC had left Mr F's house and had been taken next door by her cousin ES. In particular RBC was asked to explain the following exchange:
Messages regarding alleged incident on 15/4/2013
Emma thinks u raped me :'( and im trying to tell her u didnt but shes not lissting to me
:'( shes not lissting to me thats wat im trying to tell her :/
You have problems, raping little girls. Dirty cunt you are!!!
Andrew im so scared :'( i dont want anything to happen to u coz if something does i will kill myself :'( :'(
I just fucked up ur life u dont deserve this im so so sorry :'( i just wanna die
I dont no wat to do im sorry i just im so sorry :'(
With u ur gettin into trouble im so sorry :'( i just wann kill myself :'(
I'm done I see now nothing will ever get better it just gets worse :'(
No it doesnt dont do anything dum coz if u hurt urself i will kill myself :'(
16 RBC said she did not want to get Mr F into trouble because he had been drunk and because he was a good friend. She felt as though she had wrecked his life because of making a complaint to ES that Mr F had raped her. She said that although Mr F did rape her she later told ES when they had gone to the house in which ES was staying that he did not rape her so he wouldn't get into trouble, but ES was not listening to her.
17 In cross-examination RBC was taken to a series of text messages on 15 April 2013 commencing at 12:52:16 sent by RBC to Mr F. Those text messages were sent earlier in the day before the offence was committed later in the evening. At 12:52:16 RBC sent a text message to Mr F saying ':) u r such a sweetheart <3'. Mr F responded 'You'll get one'. RBC then responded 'Yay'. Mr F in turn responded 'Maybe more'.
18 RBC said she interpreted that to mean a kiss or something like that.
19 At 16:55:53 on 15 April 2013 about an hour before RBC arrived at Mr F's house she sent him a text message 'i love u andrew'.
20 RBC said she had been in a relationship with Mr F for a day some time before 15 April. By 15 April she liked Mr F but she was not dating him.
21 RBC was also taken to the following exchange of text messages on 13 April 2013:
22 She explained that her apparent encouragement to Mr F that she wanted to have sex with him was just a joke.
23 RBC said she drank one tiny shot of alcohol that night but was not affected by alcohol whereas everyone else was. She denied she encouraged Mr F to keep drinking alcohol.
24 She said she went into Mr F's bedroom to get her phone, which was on charge, and her handbag. Mr F followed her into the bedroom shortly afterwards, about a minute or 30 seconds afterwards.
25 When Mr F came into the bedroom he locked the door behind him.
26 She said she was in the bedroom with Mr F for about 15 minutes. During that time her cousin ES was banging on the door. She agreed that at some point her and Mr F were hugging each other but denied they were kissing. They were laying together on the mattress in the bedroom. She denied she removed her shorts and said Mr F did and he then removed her underwear. She agreed she kept her top and bra on because she was self-conscious of her stomach and refused to let him take her shirt off. Mr F removed his clothes and lay on top of her, opened her legs and had intercourse with her. She denied she willingly opened her legs and allowed him to have sex with her. She said she was very unhappy to have sex with him. She repeated what she said in the recorded interview that when Mr F came into the bedroom and asked to have sex with her, she said no, she was not going to have sex with him. She said she told him to stop several times.
27 In her recorded interview with the child assessment officers RBC said Mr F stood in front of her in his bedroom, put his hands on her shoulders and asked 'Do you want to have sex with me?' She told him that she did not but Mr F kept asking her and she kept saying no and then said 'No, you're drunk, no it's not going to happen.' Mr F then stuck his hand down her pants and had one hand on her shoulder and as she was trying to move away from him he pushed her down onto the bed. He then took off her shorts and underwear and she was kicking him trying to get him off her. She was not screaming because ES was outside the door and she did not want to get her upset because she becomes really mad. She was kicking Mr F and telling him to get off her. She could not get Mr F off her because he was really strong but after about 15 minutes he got off her, she then put her clothes back on and straight away walked out the door where ES was standing. ES asked her 'He didn't?' and then said 'He did'. RBC then went to the bathroom. ES then took her to her house next door and RBC told her what had happened and then spoke to ES's carer who in turn telephoned RBC's mother and then the police were called.
28 Later in the recorded interview RBC said she was kicking Mr F trying to get him off her but she did not want to scream because she did not want ES to freak out. She was not yelling but she had kind of raised her voice a bit. She was 'like yelling but not yelling loud enough so anyone can hear'. She was telling Mr F to get off her but he just ignored her and held her down by pinning her arms down. She was raising her voice and getting louder
29 In relation to the text messages after the incident, RBC said that she told ES what had actually happened but that she did not want anything to happen to Mr F and did not want to get him into trouble because they were friends. She said after initially telling ES that Mr F had raped her, she later told her she had not been raped, even though that was not true, because she did not want to get Mr F into trouble.
30 She said when she walked out of the bedroom and spoke to ES, she was confused and overwhelmed.
31 In her evidence-in-chief ES said Mr F was very drunk that night. She saw him grab RBC's arm and pull her into his bedroom. She heard RBC screaming 'stop, stop'. When she came out of the bedroom, she was crying and said to her that 'he just raped me'. ES then took RBC to her house, told her carer and the carer called the police.
32 RBC had shown her the text messages between RBC and Mr F in which Mr F had asked her whether RBC wanted to have sex and from having seen those text messages, she felt disgusted with Mr F. She said Mr F also told her a couple of days before 15 April that he wanted to have sex with RBC.
33 She said when RBC came out of the bedroom she was very distraught and upset.
34 She confirmed she sent the text message to Mr F on 15 April 2013 at 13:03:56 which reads 'You have problems, raping little girls. Dirty cunt you are!!!'
35 In cross-examination ES became increasingly agitated, angry and hostile towards Mr F's counsel, Mr Lemmon. She became extremely emotional and expressed extreme frustration at the questioning of her. She resorted to abusive language, frequently swearing, directed to both Mr Lemmon and Mr F. It was necessary on two or three occasions to call a halt to the cross-examination in an attempt to allow ES to compose herself.
36 ES said she had been in DCP care for the last three years and has been regularly seeing a psychologist and taking Seroqel which she described as antipsychotic medication to help her sleep and Citalopram which is an antidepressant.
37 She demonstrated by both her demeanour and the way in which she responded to the questioning in cross-examination intense anger and strong antipathy towards Mr F. She was defensive, aggressive, argumentative and hostile. She was clearly reluctant to give evidence.
38 She admitted she did not like Mr F and made serious allegations against him.
39 She admitted she had had a physical confrontation with Mr F and had been charged with assaulting him.
40 I formed the view that ES was not an impartial or objective witness and much of her evidence was influenced by her strong feelings against and antipathy towards Mr F. I am therefore of the view that I must very carefully consider her evidence before accepting it. Although I do not believe she was an untruthful witness, I am of the view that much of her evidence lacks credibility because of her strong feelings about Mr F and I cannot accept much of what she says with any confidence. However, I do accept that there are aspects of her evidence which are reliable and truthful.
41 I do not accept her evidence that she saw Mr F grab RBC's arm and pull her into the bedroom nor do I accept she heard RBC within the bedroom screaming 'stop stop' or that when RBC came out of the bedroom she was crying. I accept RBC's evidence that she was not screaming or yelling but was telling Mr F, loudly enough to be heard by ES, to get off her. However, I do accept her evidence that when RBC and ES returned to ES's house next door, RBC said Mr F had just raped her which supports RBC's evidence that is what she said to ES.
42 I also accept ES's evidence that she was banging on the locked bedroom door yelling at Mr F which is supported by the evidence of both RBC and Mr F.
43 Mr F gave evidence on 8 August 2014. He is 20 years of age, his date of birth being 3 May 1994. He was aged 18 years, nearly 19 years on 15 April 2013.
44 He knew ES because she was living next door to the house in which he was living. He met RBC through ES. They were cousins. He had seen RBC seven or eight times because 15 April 2013. As at 15 April he regarded he and RBC as being friends but after 15 April the relationship deteriorated and they are no longer friends.
45 About 3 to 4 weeks before 15 April after he made a joke about RBC, to which ES took offence, ES attacked him and there was a physical altercation between the two of them outside Mr F's bedroom door. The police were called, but neither ES or Mr F were charged.
47 Mr F said that he started drinking alcohol about 5.00 pm on 15 April 2013. He drank four to five glasses of vodka and lemonade over about an hour. He was feeling drunk and tired. RBC had one glass of vodka and lemonade and ES about three or four. RBC was not affected by the alcohol but the others were. They were sitting out the back of the house and listening to music.
48 He then came into the kitchen for some lasagne and sat in the lounge room while it was being heated. RBC then came into the house and brought the lasagne from the kitchen to Mr F and sat with him while he ate the lasagne. He was feeling fairly drunk at that time. He could not remember what RBC was talking to him about but recalled her saying to him that he should go to bed. She then helped him to his bedroom because he could not stand very well. She opened the door of Mr F's bedroom and they entered together at the same time. She turned on the light and closed and locked the bedroom door behind her.
49 RBC put some music on in the bedroom using her phone which she took from her pocket.
50 Mr F went to bed fully dressed and RBC turned the music off and lay on the bed with him and they started cuddling. RBC kissed him and he kissed her back. He removed all of his clothing. RBC removed her shorts and he removed her underpants. She kept her shirt on. They then had sex together. After they finished having sex RBC left the room and spoke to ES who had banged on the door while he and RBC were having sex. They stopped having sex because RBC had to respond to ES who was banging the door. He said RBC was unhappy about the interruption and she said she would just be a minute as she left the room to speak to ES.
51 He said he told the truth to the police in his record of interview on 16 February 2013. He denied he forced RBC to have sex with him.
52 In cross-examination he said that in the record of interview with police he said he could not remember much about the incident. He told police he was drinking Jack Daniels and not vodka. In cross-examination he said he was drinking both Jack Daniels and vodka. He accepted he was drunk and stumbling around. He accepted RBC was the most sober of everyone. He agreed he and RBC flirted with each other during the approximate three weeks they had known each other and they went out with each other for a day.
53 He agreed that from 10 to 15 April, the five days leading up to the incident, there was a large volume of text messages exchanged between he and RBC in which sex featured. When taken to the text messages in which he said he loved RBC and asked her for sex, he only loved her as a friend and was joking.
54 He was taken to the following exchange of text messages on 13 April 2013.
You're welcome and one of the reasons I have sex early in a relationship is like a test to see if I'm going to be good enough for someone not to cheat
I get that but I like to wait to see if the relationship goes any were if u get wat I mean? And theres no way u could be worse then my ex and yet I dated him for 6 months and never once cheated B321
Yeah with jess she seamed like she wasn't going to and then I fell inlove with her and I felt my heart sink so I don't like to wait til I fall inlove because it's a harsh pain and one of the harshest instincts
I no its harsh trust me I do but I like to wait and if the guy im dating doesn't want to wait then im not gonna put out u have to wait till the chick is ready
Yeah and also if a girl is gonna try with me she's gotta prove herself prove her feelings
I understand that I do but Im the type of person whho like to wait and see if its u no ment to be if u get wat in trying to say ?
55 He was also taken to the following exchange of text messages on 10 and 11 April.
Ayden said u broke up wid me coz I didnt give u sex
He doesn't know what he's talking about that's not the reason he's just trying to make himself look good
56 He said the references to sex and asking RBC whether she wanted to have sex was a joke.
57 He denied he wanted to have sex with RBC. He denied he persisted in having sex with her in his bedroom despite her rejecting him. He denied he forced himself on RBC and denied he ignored her rebuffs.
58 He agreed he told police that he felt depressed afterwards and cut himself but denied he did that because he had forced himself on RBC. He said he had been cutting himself for two or three weeks prior to 15 April.
Police record of interview - 16 April 2013 at 4.13 am
59 When interviewed by police on 16 April 2013 Mr F said he did not drink alcohol very often and said that when he got drunk he sometimes lost control and got depressed. He said that on the night of 15 April he ended up having sex with RBC after he lost control. He explained that what he meant by losing control was not thinking straight and not working through or thinking through things. He denied he was aggressive or violent.
60 He told police that RBC said to him 'How about we go into your bedroom' and that she helped him to his bedroom from the lounge room. He said RBC closed and locked the bedroom door and they then lay on the bed together and started kissing. They were kissing and hugging for about a minute and then they had sex. He said RBC asked him for sex. They had sex in a missionary position for about five minutes until ES knocked on the door. RBC then got dressed and went out and spoke to ES.
61 He agreed ES was banging on the door and yelling at them. He denied RBC said anything to him to stop. He just got off her when ES started banging on the door and RBC got up, got dressed and opened the door.
62 Later that night there was an exchange of text messages between Mr F and RBC which Mr F described as RBC apologising for having taking advantage of him because he was drunk.
63 He admitted to police it was the wrong thing to do to have sex with RBC because she was under age. He said he made a mistake in having sex with a young girl but denied he forced RBC to have sex.
64 RBC was the youngest person in the house that evening and was the least affected by alcohol. She agreed that in the subsequent exchange of text messages with Mr F she did not want to get him into trouble. However, in her evidence, while she agreed she did not want to get Mr F into trouble, she maintained she did not consent to having sex with Mr F. In my view the fact that RBC felt sorry for Mr F and did not want him to get into trouble, but still maintained she did not consent to having sex with him, supports her credibility. Even though Mr F had, on her evidence, forcibly had sex with her without her consent, she still held some affection for him. However, she consistently maintained she did not consent to having sex with him. In the earlier various exchanges of text messages between them, which are of a flirtatious nature, and which she regarded as joking, she made it quite clear she did not wish to have sex with him.
65 Of all of the people in the house that night I am satisfied her recall of what happened is the most reliable because she was the least affected by alcohol.
66 Mr F on his own admission was very drunk that night. He said he did not often drink alcohol. When interviewed by police later that night or in the early hours of the next day 16 April he said that he ended up having sex with RBC when he lost control, by which he said he meant he was not thinking straight or thinking things through. He admitted he knew RBC was aged only 14 years and that he should not have had sex with her. However, he maintained that she had consented to having sex and indeed it is implicit in what he says that she initiated having sex by lying on the bed with him when he was drunk, kissing him and removing her shorts. He explained the later exchange of text messages as RBC apologising having taken advantage of him because he was drunk.
67 I find Mr F an unreliable witness as to what occurred on the night of 15 April 2013, in particular what occurred in his bedroom. I find that Mr F, who did not often drink alcohol, was significantly affected by alcohol. In my view his recall of the events that night, even though his evidence is consistent with what he told police in his record of interview later that night, while the events would still have been fresh in his mind, was affected by his level of intoxication and is unreliable. His account is also, in my opinion, influenced by the realisation of the seriousness of his situation of having had sex with a 14-year-old girl, who he knew to be aged 14. In my view the various text messages exchanged between Mr F and RBC before 15 April 2013 show Mr F had a sexual interest in RBC and that he wanted to have sex with her despite her rebuffing his approaches. I am satisfied that while heavily intoxicated with his judgment impaired and from a loss of self-control he has forced himself onto RBC and sexually penetrated her without her consent.
68 I find RBC's evidence to be credible and reliable. I am satisfied her account of what occurred that night is reliable and accurate. She was not affected by alcohol. Her credibility is bolstered by maintaining in her evidence she did not consent to having sex with Mr F even though she did not want to get him into trouble. I am satisfied beyond reasonable doubt that Mr F followed her into his bedroom when she went to retrieve her phone and handbag. I reject Mr F's evidence that RBC closed and locked the bedroom door behind them. I accept RBC's evidence that it was Mr F who closed and locked the door behind them. He did so with the intention of having sex with RBC.
69 Further, I am satisfied beyond reasonable doubt that given Mr F's intoxicated state, RBC would not have wanted to have consensual sexual intercourse with him while he was in such a state. I reject Mr F's explanation to the police that she took advantage of him.
70 I do not accept Mr F's evidence that he and RBC had consensual intercourse. Although I disbelieve and do not accept Mr F's evidence, I am still required to put his evidence to one side and consider whether, on all of the evidence, the State has satisfied me beyond reasonable doubt that Mr F sexually penetrated RBC without her consent: Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J) (with whom Deane J agreed).
71 I accept RBC's evidence that she initially went into Mr F's bedroom to get her handbag and phone which was being charged. Mr F followed her into the bedroom shortly afterwards and closed and locked the door behind him. I accept her evidence that Mr F and her hugged each other but they did not kiss. Mr F forced her onto his bed, removed her shorts and underwear, lay on top of her and forced open her legs and had intercourse with her against her will. I accept that when Mr F came into the bedroom he asked her to have sex and she told him she was not going to have sex with him. Once he started having intercourse with her she told him to stop on several occasions in an increasingly loud manner. During this occurring ES was banging on the bedroom door and yelling at them. I am satisfied she heard RBC telling Mr F to stop.
72 I am satisfied the exchange of text messages between RBC and Mr F from 10 April to 15 April 2013 evidence a desire on Mr F's part to have sex with RBC knowing she was only aged 14 years. Although I accept there is an element of flirting in those emails, I reject Mr F's explanation that they were only joking with each other and that they do not show that Mr F wanted to have sex with RBC. I accept RBC treated the text messages in a joking and flirtatious way, but in my view Mr F's exchanges, knowing RBC was only 14 years of age, shows a sexual interest in RBC and a desire to have sex with her.
73 I am satisfied he wanted to have sex with RBC and while he was heavily intoxicated and by his own admission lost control and was not thinking properly or clearly he had sex with RBC without her consent. I reject his explanation that he lost control by having sex with RBC knowing she was only aged 14 but that she consented to having sex. I accept RBC's explanation that she did not want to have sex with Mr F because he was drunk.
74 I am satisfied that immediately after RBC left Mr F's bedroom after her and ES returned to the house in which ES was living next door, she complained to ES that Mr F raped her after questioning by ES which in my view supports RBC's credibility in the truthfulness of her evidence. That she complained to ES is supported by the evidence of ES who in turn reported the matter to her carer who called the police.
75 I do not accept the evidence of ES that she heard RBC when her and Mr F were in the locked bedroom screaming 'stop stop' or that when she came out of the bedroom she was crying and said that Mr F had just raped her. RBC did not say she screamed 'stop stop'. She said she told him to stop several times in an increasingly loud manner but not that she screamed. However, I accept ES heard RBC telling Mr F to stop. Neither did RBC say that when she left the bedroom she was crying and said to ES Mr F had just raped her.
76 I am satisfied beyond reasonable doubt that when on his own admission, Mr F had sexual intercourse with RBC on 15 April 2013 he did so without the consent of RBC.
Liberato
The Queen
(1985) 159 CLR 507