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[2014] ACTSC 222
Supreme Court of the ACT
2014-08-14
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender to be sentenced for incest with person under 16 but over 10 years, using a carriage service to groom person under 16, and three offences of using a carriage service to transmit an indecent communication to a person under 16 - offender 20 years old - victim was offender's 12-year-old half-sister - offender and victim had met for first time shortly before offences - offender's difficult childhood and adolescence - offender's mother left offender's father to escape domestic violence - offender met half-sister when he re-established relationship with father more than 15 years later - offender immature and socially isolated - victim willing participant in offences as indicated diary entries - offender demonstrated remorse and insight into effect of offences on victim - sentence of imprisonment required - no need for sentence to be served in full-time custody - total sentence of imprisonment for three years and six months - ACT sentence fully suspended subject to good behaviour order with community service order - Commonwealth sentence subject to recognizance release order.
Crimes Act 1900 (ACT), s 62(2)
The Queen v CV [2013] ACTCA 22
Legal Aid ACT (Offender)
Name of victim and any identifying details, including name of offender
1. AD has pleaded guilty to five offences, being one of incest with a person aged under 16 but at least 10 years of age, one of using a carriage service to groom a person under 16 and three of using a carriage service to transmit an indecent communication to a person under 16. Those offences arise respectively under s 62(2) of the Crimes Act 1900 (ACT) and ss 474.27 and 474.27A of the Criminal Code 1995 of the Commonwealth, and carry penalties respectively of 15 years, 12 years and seven years.
2. AD is the complainant's half brother. They have the same father, who was living in Canberra and who also has other children to other different partners. AD and the complainant, who did not live with her father, met when AD came to Canberra to visit his father whom he had not seen for 15 years. Several weeks later, in June 2013, AD returned to Canberra to live with his father, and re-established contact with the complainant. He stayed one night at the complainant's home. Several nights later, the complainant stayed at her father's house, where AD was staying. They were to stay in the same bed, and during the evening, in the course of a so-called "lesson" offered by AD, he put his fingers into the complainant's vagina, rubbed her clitoris and brought her to orgasm. This is the incest charge.
3. The grooming charge arises out of a series of telephone, text message and Facebook communications in July and August 2013 during which AD talked about teaching the complainant "dirty stuff", providing many details, and she became sexually aroused. During this period AD also reminded the complainant repeatedly to be discreet about their relationship. The complainant's diary entries reveal the extent to which AD had managed to inspire the complainant to sexual enthusiasm.
4. The three indecent communication charges relate to three incidents of "phone-sex" between AD and the complainant in the course of a week in early August. The encounters involved some text messages, which were subsequently recovered, and other details were recorded in the complainant's diary.
5. After the last charged incident of phone sex, the complainant confided in a school friend about her relationship with AD and these confidences came to the attention of the school friend's mother. On 9 August 2013, Care and Protection officers were informed; they contacted the complainant and notified the police. AD was interviewed by police the same day and admitted some aspects of their relationship, although at that stage he denied the allegation of digital penetration.
6. However, AD pleaded guilty to the charges at the earliest opportunity, before a brief of evidence had been prepared, and he was committed to this court for sentence. He has spent no time in custody in connection with these offences.
7. Although it is not the orthodox approach, I propose in this case to deal first with AD's subjective circumstances before moving on to assess the offences. This is a case in which I do not consider the offences can be properly understood without an understanding of the offender.
9. The Pre-Sentence Report provided a detailed description of his background and personal circumstances as follows:
[AD] reported a transient lifestyle during his formative years. He stated that his father was violent and made threats against his life and that of his mother. Before [AD]'s fourth birthday his mother was offered government assistance to move to accommodation in North Queensland, in order to escape the domestic violence situation. His mother confirmed at that time she assumed a new identity in order to keep both herself and [AD] safe, however contact was still facilitated between [AD] and his father until he was approximately five years of age.
[AD] stated that his mother was involved in several further relationships, which resulted in a total of five younger half siblings. [AD] reported that at the age of seven years his mother remarried. He described his relationship with his stepfather as abusive and violent in nature and noted the relationship did not meet his physical or emotional needs. This was confirmed by [AD]'s maternal grandmother.
[AD] stated that he was asked to leave the family home at the age of 17 years due to constant bickering and physical fighting with his siblings. At this time he moved regularly, staying with friends and extended family for brief periods, occasionally returning to the family home for accommodation. His mother confirmed at the time when [AD] resided in the family home there was a lot of conflict; she added that he was always welcome there. [AD] described his relationship with his mother as loving and supportive. His mother confirmed the positive and protective nature of their bond.
At the age of 19 [AD] moved to Tasmania, where he lived with his maternal aunt and her family. It was at this time that [AD] was encouraged by his aunt to made contact with his father, for whom she provided the contact details. [AD] stated he had not had any contact with his father since he was five years of age. He expressed that he wanted to explore a relationship with his father as an adult despite the concerns from his mother; however it was some months before he made any contact.
It was after the initial contact with his father that [AD] visited his paternal family in the ACT [in May 2013 and] became aware of further half siblings from his father's relationships. Following this [AD] moved to the ACT where he resided with his father and a younger half sister (not the victim) for a period of two months from June 2013. He reported that his relationship with his father was violent and emotionally abusive during this time. [AD] reported no contact with his father or his extended paternal family since the time of his arrest on the current offences.
10. Since about May this year, AD has been living in Wyuna Community Housing, and a letter was provided indicating that he had been a responsible and contributing member of the co-operative household and would be welcome to continue to live there.
11. Dr Allnutt noted that there had been some substance abuse by AD in the past, but there is no suggestion that either alcohol or illicit drugs played any part in the current offences.
12. The Pre-Sentence Report author assessed AD as follows:
AD presented as lacking the level of maturity you would expect from a young man of his age. He claimed to lack self-esteem and confidence.
AD appeared to lack sound decision making abilities and to be easily influenced by people who show him a sense of belonging or affection. This is evidenced by his addiction to online gaming and the value he placed upon the relationships he reported he had developed during these interactions.
... AD would benefit from engagement in 1:1 counselling that addresses both his addictive behaviour as well as addressing his self-esteem and self confidence. He could further reduce his risk of reoffending by securing stable employment, engaging with service[s] to address his addictive behaviour, taking steps to manage his financial limitations and achieving stable mental health.
... He would benefit from engagement in an offence specific program to gain insight and understanding into the impact of his offences and victim empathy. It is noted that referral to the Adult Sex Offender Program (ASOP) would be appropriate and this program is available in both custody and the community.
13. In oral evidence, the PreSentence Report author expanded on her description of AD as immature, and noted that because of his immaturity he would need significant case management to ensure that he would follow through with his mental health treatment plan.
14. In assessing the objective seriousness of these offences, I take account of the relative youth of the complainant (this is not a case of a sexually mature 15yearold girl getting a bit ahead of her legal capacities), the fact is that AD knew that the complainant was only 12, and the abuse of the trust that was placed in him by the complainant's parents because he was the complainant's half brother. Although it is clear from the statement of facts that the complainant was for much of the time an enthusiastic participant in the activities, it is also clear that much of this enthusiasm originated with what is described in the statement of facts as a "crush" on AD that she had developed very shortly after meeting him. The fact that young adolescents are capable of developing intense attachments to older people does not justify those older people in taking advantage of such attachments; rather, it puts a responsibility on them not to take advantage.
15. On the other hand, it needs to be remembered that AD and the complainant, although half siblings, had not met until AD came to stay with his father, and so neither of them was protected by the inhibitions on sexual attraction that are generally a natural consequence of growing up within the same family. Furthermore, as already noted, AD was in many ways a very immature 20yearold.
16. I have mentioned already that the complainant was an enthusiastic participant in much of the relevant activity. As a 12yearold, her consent makes no difference to the incest offence as such, and may not as such be treated as a mitigating factor, but certainly the fact that she was not forced into any of the sexual activity is relevant in assessing the overall seriousness of the offending. Her willing participation in the phone sex episodes is in my view also relevant to the significance of the indecent communication offences (see The Queen v CV [2013] ACTCA 22 (CV) at [23] and [24]).
17. Victim Impact Statements were provided by both of the complainant's parents.
18. The Victim Impact Statement from the complainant's mother describes the conflict between her and her daughter over limits imposed on visits to the father's house, where AD was staying, the depression and anxiety suffered by her daughter after the offences came to light, the time she and her daughter had needed to take away from school and work as a result of subsequent events and, implicitly, her own distress at having been unable to protect her daughter.
19. The complainant's father is of course also AD's father. Curiously, his Victim Impact Statement did not identify any impact on the complainant, but focused on the direct effect of the offence on him as AD's father and his entirely negative feelings about AD (not clearly a relevant topic for a victim impact statement provided by a relative of the victim). It is interesting to consider the statement by the father, that he has spent 15 years wanting to know where AD was after his mother had taken him away, in the light of the information provided to the PreSentence Report author and Dr Allnutt by AD's mother to the effect that she had left his father to escape from domestic violence. Wherever the truth lies, it is apparent that AD has been deprived of positive paternal support and role modelling throughout his childhood and adolescence.
20. As well as the PreSentence Report author's description of AD's isolation, Dr Allnutt noted that:
At the material time of the offending, he was alone, depressed, socially anxious, lacking in self-confidence. He describes the relationship with the victim as a form of companionship, which in my view then became sexualised.
Factors that contributed to his vulnerability to offending includes: an abusive and unpredictable developmental and schooling background, an underlying anxiety and depressive disorder at the material time, poor self-confidence, limited experience in sexual relationships and loneliness.
Your client currently demonstrates insight into his offending behaviour. He accepts responsibility for his offending, he understands its criminality and he is motivated to pursue treatment.
He expresses remorse in regard to his offending.
22. AD gave evidence conceding that he knew that he was doing the wrong thing, especially since he believed that it was unlawful to have sex with a person under 18. The PreSentence Report author described him as lacking insight into his offending behaviours, and as minimising the severity of his own involvement in the offences, although he was able to say that he took responsibility for his actions. In court, however, he gave evidence not only of his willingness to take responsibility for the offences (including a recognition that spending time in prison would only be a consequence of what he had done), but also of his understanding that his relationship with his half-sister would cause problems for her in the future in dealing with friends and family, and in any future relationships that she would have, and more generally that it would probably affect her entire quality of life. In crossexamination AD expanded on this, explaining that the his half-sister's future relationships might bring up memories of the current incident and that none of those memories would be good.
23. AD conceded that he had taken advantage of his half-sister because he wasn't feeling very good about himself, and that at the time he had not given a thought to the possible impact on her. He said, however, that in the last few months he has been seeing a GP and receiving counselling, and was being put on a mental health plan; since then he had realised the impact of his actions on his half-sister. He said that he hoped to receive ongoing treatment and counselling and would certainly continue to accept counselling if he was required to serve a term in custody.
24. The nature of this offence has resulted in several mentions of the possibility that AD has paedophilic tendencies. Dr Allnutt indicated that having regard to AD's other age-appropriate sexual relationships, the absence of any expressed sexual interest in children as such, and the brevity of the relationship with the complainant, it is too early for any diagnosis of paedophilia. I agree with this conclusion and propose to ignore the possibility of paedophilia in this sentencing process, while noting Dr Allnutt's recommendation that this possibility be addressed in therapy.
25. Taking all these matters into account, I assess the gravity of the offending as not the least serious examples of the offences but certainly at the lower end of the range.
26. I accept that AD's immaturity, isolation and mental and emotional problems as described by Dr Allnutt reduce his culpability for these offences to some degree. It is also possible that those difficulties would make a prison term weigh more heavily on him and have a negative effect on his mental health. On the other hand, I consider that a prison term is the only appropriate sentence for these offences; so much seems to be conceded on behalf of AD. The question is how that prison term should be served.
27. AD's counsel drew my attention to various sentences imposed in other cases for similar offences but noted that most of those cases were significantly different, especially in that they involved much older offenders imposing their will on children. He mentioned specifically, by way of contrast, the 2013 Court of Appeal case to which I have already referred, CV, which involved a Crown appeal against the making of a non-conviction order in a case involving seven incidents of penile-vaginal sexual intercourse (only one of which was the subject of a charge) between a 17-year old and a 13-year old who had claimed to be 16 until after at least two of the incidents of sexual intercourse. The Crown appeal against the nonconviction order was dismissed.
28. Clearly this case is more serious than that of CV, including because in CV there was a much smaller age difference between the offender and the victim, and the victim had at all times been the instigator of the offences. There has been no submission that a non-conviction order would be appropriate in this case, but in my view the Court of Appeal's decision in CV suggests that, even though a prison sentence is required here, there is no need for that sentence to involve any immediate full-time custody. I reach this conclusion having regard also to the likelihood that AD's youth, immaturity and social awkwardness would combine to make him extremely vulnerable in a prison environment and having regard, of course, generally to the leniency to which he is entitled given his lack of prior convictions and to his youth as such.
29. General deterrence, denunciation and recognition of the harm done to the complainant are important factors in this sentencing, specific deterrence and community protection less so in my view. The rehabilitation of a young man, especially one who has so far shown no other criminal inclinations despite a somewhat troubled childhood, is also extremely important.
30. AD's early pleas will be recognised with a significant sentencing discount. Among other things, those pleas had particular value in sparing the complainant the need to appear in court and tell her story.
31. AD, please stand. I record convictions on one charge of incest with a person aged under 16 but at least 10, one of using a carriage service to groom a person under 16, and three charges of using a carriage service to transmit an indecent communication to a person under 16.
32. I now sentence you for those offences as follows:
(a) for the incest offence - to three years imprisonment, reduced from four years for your guilty plea;
(b) for the grooming charge - to 18 months imprisonment reduced from two years; and
(c) for each of the three offences of transmitting indecent communications - to 13 months imprisonment reduced from 18 months.
33. The grooming sentence will be accumulated on the incest sentence so as to add three months to the total term, and the three indecent communication sentences will be accumulated so as to add one month each to the total term, giving a total sentence of three years and six months imprisonment.
34. That sentence will be suspended with immediate effect. In relation to the incest sentence, I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for three years. As for the four Commonwealth offences, you are to be released on giving security in the amount of $300 on your own recognizance that you will be of good behaviour for 21 months from the date on which those sentences would have started running, which at this stage I calculate as 14 May 2016.
35. The recognizance release order (that is the one for 21 months from when the Commonwealth offences start running) is subject only to the condition that during those 21 months you are to be of good behaviour.
36. The good behaviour order for the incest offence is subject to the following conditions:
(a) that for such period not exceeding three years as Corrective Services requires, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate;
(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer, in particular, that you be assessed and if found suitable, you undertake the Adult Sex Offenders Program; and
(c) finally, that in the next two years, you perform 280 hours of community service.
37. I mention also, and I think the people who prepare the sentencing documents will also tell you this, but in order to organise your supervision you will need to report to Eclipse House within the next 48 hours, and you can talk to your lawyers about the details of that.
38. You will be given a written copy of the good behaviour order and the recognizance release orders. They will be explained to you, or at least read to you, by the court officials and I hope that your lawyers will also have a talk to you about the significance of them. In short, they mean that for the next three and a half years all up you need to keep out of trouble. That is the most important thing. For the next three years, or a shorter period if the Corrections people release you from it, you need to keep in contact with Corrective Services and comply with your supervisor's directions. You need to cooperate with the assessment for the Adult Sex Offenders Program and, if required, you need to take part in that program and, of course, you need to do your community service.
39. Now, as I have already indicated, if you do have plans to return to Queensland you might want to talk to Corrective Services about how quickly you could work through that community service, especially since I think you are not working right at the moment.
40. If you commit another offence during that three and a half years, or if you don't otherwise comply with the conditions of the ACT good behaviour order, you might find yourself back before this court to be re-sentenced for one or more of these offences as well as possibly losing your $300. If you did breach either of those orders by re-offending in a similar way, then you could easily find yourself serving some of this suspended sentence in prison.
41. The other thing I need to tell you, AD, about the recognizance release order for the Commonwealth offences is that there is a provision in the Commonwealth Crimes Act (section 20AA) which means that there are circumstances in which, at some point in the future, you could apply to have that recognizance release order lifted before it actually runs out before the end of the 21 months. You would need to convince the court that, in effect, there was no need for that order anymore. I suggest that you just talk briefly to your lawyers about that, not about the possibility of doing that, but about what you would need to do if you decided later on that you wanted to pursue that. That is probably something that is not of any particular significance but under the Commonwealth Act I am required to tell you about that. As mentioned, I suggest that you have a proper talk with your lawyers about all of these sentencing orders; as you would have picked up they are fairly complicated ones even for all of us.
42. You will also be recorded on the Sex Offenders Registrar.
I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.
R
AD [2014] ACTSC 222
[AD] reported that he is not currently in a relationship, however reported four previous age appropriate relationships. He stated that only one of these relationships was an intimate sexual relationship and was where he lost his virginity. [AD] stated all of these relationships were of a sexual nature, and all of the relationships had involved the use of a technology/carriage service to maintain contact and also convey sexual messages between the couple. He stated this included a relationship where he believed he was led on by a young lady he met on the internet, who he stated solicited gifts from him in exchange for a promised sexual relationship. This is consistent with the report provided by a psychologist, however it is noted [AD]'s account of his relationship history conflicted with his mother's report that he had only ever had one brief relationship.
...
[AD] reported he started his education with home schooling and did not attend a school until he was eight years of age. He added at the time he was unable to read and write and this resulted in him being placed in a class that was a year below his peers. [AD] described that he was constantly bullied at school and that he was suspended on more than one occasion for fighting. He added that he was expelled in year 12 for a lack of attendance. [AD]'s mother advised his failure to attend was due to his addictive online gaming behaviour.
[AD] stated he had currently been employed for a period of two weeks, working for a commission salary with a company direct selling telecommunication and essential service products. ...
[AD] had engaged with a job network provider who had been providing support in seeking employment. Part of his contact with this service had resulted in [AD] being enrolled in an online business administration course; ....
...
[AD] expressed he had difficulty forming and maintaining peer relationships. He reported the friendships that he had in the past ended following incidents of him feeling isolated or being physically or emotionally abused. [AD] did not take any responsibility for the breakdown in these relationships, instead, on each occasion, placed the blame wholly on the other person involved.
[AD] reported that he is fundamentally socially isolated and the only relationships he has been able to maintain are those he has made through his recreational pursuit of online gaming, and he had few other acquaintances. He expressed he had no family support in the Canberra area and his only support systems were his family in North Queensland.
[AD] reported few leisure pursuits other than what he described as his addiction to online internet gaming. He began gaming at age 15 years and this became problematic soon after, where he would play for days at a time without a break. He described using a headset to communicate with other players during the game, with these being the most significant relationships in his life outside his family. He stated though this area had become less addictive in recent months, he felt valued in the gaming environment and considered he was part of something meaningful.
[AD] reported a diagnosis of Attention Deficit Hyperactivity Disorder. This was confirmed by his mother, however he is not currently prescribed medication for this. [AD] reported no other medical issues.
[AD] reported a mood disorder and claimed he had seen mental health services in the past. It was verified that he had not had any appointments in 2014. He added he had been prescribed medication, however had not taken this for several months due to financial constraints.
[AD] reported that he had suicidal ideation at age 17 years when he felt isolated from his social group. He reported he currently does not have any suicidal thoughts; however he stated he was unable to give assurances for his state of mind should he be given a full time custodial sentence. His mother informed following being charged he had become despondent and suicidal, at which time he started his pharmaceutical regime. She added it is her belief that her son would be at risk of self harm should he be sentenced to a custodial sentence.
[AD]'s mother disclosed that at the age of four years [AD] claimed he had been sexually assaulted by a family member. She added she felt unsure of how to respond and when he had stopped talking about this after a week she took no further action.