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[2021] ACTSC 74
Supreme Court of the ACT
2021-04-27
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v AQ
Citation: [2021] ACTSC 74
Hearing Date: 27 April 2021
Decision Date: 27 April 2021
Before: Mossop J
Decision: See [38]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender is a young person – incest with lineal descendant between the age of 10 and 16 years – acts of indecency in the presence of a person between the age of 10 and 16 years – offending was a course of conduct over two years – victim is offender’s younger sister – mid range objective seriousness – low risk of reoffending – engagement in psychological counselling – very good prospects of rehabilitation – suspended sentence and good behaviour orders imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by offender not to be included on the child sex offender register – offender has engaged in psychological counselling – offender does not pose a risk to the lives or sexual safety of people in the community – inclusion on the register would be counter-productive to rehabilitation – inappropriate to include offender on the register in the circumstances of the case
Legislation Cited: Crimes Act 1900 (ACT), ss 61(2), 62(2), 66B Crimes (Child Sex Offenders) Act (ACT), s 9, Sch 1, Sch 2 Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G
Parties: The Queen (Crown) AQ (Offender)
Representation: Counsel A Chatterton (Crown) B Morrisroe (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Tim Sharman Solicitors (Offender)
File Number: SCC 253 of 2020 MOSSOP J:
Introduction
The offender, who is a young person, pleaded guilty to sexual intercourse with a lineal descendant between the age of 10 and 16 years. This offence is contrary to s 62(2) of the Crimes Act 1900 (ACT) and has a maximum penalty of 15 years’ imprisonment. He also pleaded guilty to committing acts of indecency in the presence of a person between the age of 10 and 16 years, which is contrary to s 61(2) of the Crimes Act and has a maximum penalty of 10 years’ imprisonment.
Both offences are course of conduct charges by virtue of s 66B of the Crimes Act and were committed against the young person’s sister between 1 March 2018 and 25 March 2020.
Facts
At the end of 2017 the offender, the victim, their parents and siblings were living together in New South Wales. The first incident of sexual misconduct directed to the victim occurred during this period. It does not fall within that which has been charged because it occurred in New South Wales. It does, however, provide background to the subsequent offending.
The victim was eight years old and the offender was between 12 and 13. The offender was playing video games in his bedroom and the victim also wanted to play. The offender told the victim she could play if she sucked his penis. She refused but the offender stood in front of her while she was sitting on the bed and told her to close her eyes and open her mouth. He briefly placed his hand over her eyes and opened her mouth. He guided her head and mouth towards his penis. He inserted his penis into her mouth for about one minute and moved his penis back and forth inside her mouth. After the offender withdrew his penis from her mouth, he rubbed her vagina with his fingers on her skin, in an up and down motion. The offender told the victim that he would “tell on her” and that she was not to tell anyone. He then said she was allowed to play the computer game. The victim recalled that this occurred once or twice in New South Wales.
In March 2018 the offender and victim’s family moved to the ACT. The victim was nine years old and the offender was 13. The offender performed repeated acts of sexual activity on the victim between March 2018 and March 2020. The sexual activity always occurred in the offender’s bedroom. It included the victim performing oral sex on the offender and the offender rubbing the victim’s vagina, skin on skin. On some occasions the sexual activity also included the victim masturbating the offender’s penis to ejaculation. When this occurred, it took place after the oral sex but before the offender touched the victim’s vagina. The offender would remove his ejaculate with tissues.
The victim initially stated that she could not recall the number of times the sexual activity occurred. She said it occurred about once or twice per week over a two-year period. She said there were two or three gaps in this period, of about one or two weeks each, in which no sexual activity occurred. She said that she performed oral sex on the offender about half the times that the offending occurred.
The last time the offending occurred was 24 March 2020. At this stage the victim was 11 years old and the offender was 15. The victim was walking in the hallway towards her bedroom and the offender grabbed her by the arm. He used a medium degree of force to move her into his bedroom and then closed the door.
He told the victim to suck his penis. She refused and the offender told her to do it and get on the bed. He used his hands and some force to move her onto the bed. While she sat on the bed, he stood in front of her and pulled down his pants. He put his penis in her mouth. She moved her head back and forth while performing oral sex on the offender for approximately two minutes. The victim stopped because the offender said “That is enough”. The offender then rubbed the victim’s vagina, skin on skin, for a few seconds. The victim asked to leave and the offender stopped.
Objective seriousness
Subjective circumstances
The personal circumstances of the offender are recorded in a very detailed pre-sentence report prepared by Child and Youth Protection Services (CYPS). The report assessed his overall risk of reoffending as low.
The offender is currently 16 years old and was between the ages of 13 and 15 at the time of the offending. He has brothers and sisters who are older than him and brothers and sisters who are younger than him. He grew up in NSW before moving with his family to the ACT as a teenager. He described his family home as noisy and said there were fights and bickering among his siblings, although he also had fond memories of hanging out together and playing basketball.
His parents separated after moving to the ACT and, following the offending, he lived with his grandmother for several months. He described a positive relationship with his grandparents, although he has recently started residing with his father and brother. He said that he and his father “get along pretty well”.
He continues to have an ongoing relationship with the rest of his family and visits his mother’s home on weekends to see his other siblings. He has restricted interactions with his siblings and no unsupervised contact with the victim, although he reported positive relationships with his siblings. He described his relationship with his mother as “pretty good” and stated that she is a good support for him. He did not identify any concerns in relation to his parents or family circumstances and reported a generally positive, supportive family environment.
The offender’s mother described the offender as having a relatively normal childhood.
Up until Year 8 he was home schooled with his siblings by his mother. The offender described this as a positive experience and thought that his home schooling had resulted in him being further ahead than his cohort at his current school. The offender’s parents were supportive of his decision to transition into mainstream schooling in Year 8.
He has been working as a casual employee in a fast-food restaurant for the past 18 months. He finds this work boring but is grateful to have a job and income. He earns approximately $150 per week but is otherwise financially dependent on his parents. He intends to pursue a career path in the IT sector and has enrolled in an introduction to cyber security course.
Since the offending, he has started attending appointments with a psychologist who has seen him on 13 occasions. Treatment that he has received has included addressing his responsibility for the offending. The offender’s mother raised no current or ongoing concerns as to the offender’s medical or psychiatric needs.
The offender reported that he has never used alcohol or illicit drugs and his mother confirmed this. He stated that he has a number of positive and supportive friendships, including from school, basketball and church. He is not aware of any friends with prior involvement with police, drugs or alcohol. His mother also raised no concerns about his peer associations.
Criminal history
Plea of guilty
Time in custody
Consideration
Counsel for the Crown contended that only a custodial sentence would be appropriate, but that in the circumstances a wholly suspended sentence may be appropriate. Counsel for the offender did not disagree with this submission.
The cases to which I was referred do not provide any clear sentencing pattern for offences like this. Obviously, specific regard must be had to ss 133C, 133D and 133G of the Crimes (Sentencing) Act 2005 (ACT).
The offending in the present case does not have a clear explanation. It involved actions of exploitative self-gratification at the expense of the offender’s sister. He knew at the time that it was wrong. It involved an abuse of power arising from the age disparity between them. It continued over a substantial period. However, the evidence indicates that the prospects for the offender’s rehabilitation are very good. Notwithstanding the separation of his parents, he continues to have good parental support. The psychological counselling that he has received appears to have made good progress. He recognises the wrongfulness of his conduct. He gives the impression of a young person who was immature and has performed serious criminal acts, but for whom there is a very low risk of future offending.
The objective seriousness of the offending warrants a custodial sentence. That must be set having regard to the matters in s 133G(2). In my view, the starting point on the count of incest is a sentence of imprisonment of eight months, reduced to six months on account of the plea of guilty. On the act of indecency charge the starting point is a sentence of four months, reduced to three months on account of the plea of guilty. Having regard to the fact that the pre-sentence report identifies his risk of reoffending as low, the purpose of promoting the rehabilitation of the young offender requires, in my view, that the sentence be wholly suspended.
Child sex offenders register
Incest is a class 1 offence under the Crimes (Child Sex Offenders) Act 2005 (ACT) (Sch 1, Pt 1.1, item 1). An act of indecency with a young person is a class 2 offence (Sch 2, Pt 2.1, item 4).
The offender made an application pursuant to s 9 of the Act so as to prevent him from becoming a registrable offender.
Section 9(2) permits a court to make a decision that it is “inappropriate in the circumstances of the case” to include the young person on the register. Section 9(3) identifies the matters that the court must consider. In this case, the offending was significant. I have described the objective seriousness of the offending earlier in these reasons. The offending occurred when the offender was between the ages of 13 and 15. The victim is likely to suffer long-term psychological consequences from the offending, although how significant these will be is not clear. The attempts at rehabilitation by the offender have involved psychological therapy and having regard to those efforts and his age and maturity at the time of the offending, it is likely that the prospects of rehabilitation are good. I do not consider that the offender poses a risk to the lives or sexual safety of one or more people in the community. In those circumstances I consider that it would be inappropriate to include the offender on the register. In my view, to subject the offender to the obligations under the Act would serve no useful purpose. They would in fact be counter-productive and would inhibit rather than promote his rehabilitation. They would not provide any additional protection to the community.
Orders
The orders of the Court are:
On the count of incest contrary to s 62(2) of the Crimes Act 1900 (CC2020/903) the offender is convicted and sentenced to imprisonment for a period of six months, which sentence is wholly suspended upon him entering into a good behaviour order for a period of 12 months.
On the count of committing an act of indecency contrary to s 61(2) of the Crimes Act 1900 (CC2020/904) the offender is convicted and sentenced to imprisonment for a period of three months, which sentence is wholly suspended upon him entering into a good behaviour order for a period of six months.
The Court notes that the offender is not a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) because the Court considers that including the offender on the register is inappropriate in the circumstances of the case.
I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 10 May 2021
R
AQ [2021] ACTSC 74
That evening the victim went for a walk with her mother and sister. The victims’ mother commenced a conversation about personal safety and sexual assault. The victim’s mother noticed that the victim had tears in her eyes and appeared upset. She asked “What’s the matter, has something happened to you?”. The victim replied “It’s [the offender], he has made me do sex stuff.” They returned home and the victim’s mother and father spoke to the victim away from the other children. The victim told her parents that the offender had been asking her to suck his penis and sometimes stuff would squirt out onto a tissue. She also told them that the offender had been touching her.
The victim’s parents then spoke to the offender alone. The father asked if he had been “doing stuff with [the victim]”. The offender replied “yeah”. He was asked what had been happening, but he appeared embarrassed and did not respond. He said it had been happening for the last couple of years and that “I tried to stop. I couldn’t help myself.”
The father called the police and they arrived at the house at approximately 10:30pm. The police obtained a version of events from the parents while the victim was sleeping. In the early hours of the next morning the offender was arrested and the victim was taken to Canberra Hospital to undergo a medical examination. Forensic swabs were taken from both the victim and the offender. A DNA profile matching the victim was found on saliva detected on the penile swabs from the offender.
On 26 March 2020 the victim participated in an evidence-in-chief interview. The offender declined to participate in an interview.
He confirmed that he had not been sexually active prior to the offending and has not been sexually active with others. The offender currently engages with a number of leisure activities.
He identified his grandmother, uncle and parents as people affected by his offending because he had to live with his grandmother and uncle. He described conversations with his grandmother and uncle about the offending as “challenging” and said that he did not like disappointing people. He appeared to think that his parents separated because of his offending. He thought that he disappointed his parents because they thought he was a “good kid growing up”.
When asked about the impact of his offending on the victim, he said that he knew there was an ongoing impact on her, but he did not know what it was. He said that he had spoken to her and apologised for his actions, stating that it would not happen again. This was confirmed by his mother. He told the author of the pre-sentence report that he wanted to “apologise to everyone” for going through something they did not expect to have to go through.
The offender was assessed as understanding that his actions towards the victim were wrong. He stated that he knew the age of consent was 16 years of age and that there were other reasons which would prevent someone from being able to give consent, like being intoxicated. He acknowledged that the victim could not give consent due to her age. He agreed that his offending was serious, rating it seven out of 10 in terms of severity. He understood that he could be arrested, although he was not aware of the maximum period of imprisonment for the offences.
The offender appeared to the author of the pre-sentence report to take responsibility for his actions and presented as honest and forthcoming. In reflecting on the Statement of Facts, he said he felt stupid and ashamed.