R v Ardron [2021] ACTSC 91

Facts of principal offence

6. In November 2018, the complainant was mowing lawns in his local neighbourhood for cash. He was 15 years and seven months old.

7. On 10 November 2018, he doorknocked various residences, including that of the offender, seeking mowing work. The complainant and the offender agreed that, at about 2 PM on the following day, the complainant would mow the offender’s lawn in return for payment. The complainant provided the offender with a flyer for his mowing business, which described the complainant as a “trustworthy local student”.

8. On 11 November 2018, the complainant attended the offender’s residence at 2:20 PM and apologised for being late. When the offender answered the door, she seemed drowsy. She was wearing shorts and a T-shirt.

9. After the complainant started mowing the front lawn, the offender came out of the house and told him that she did not have the money to pay him immediately but would pay him the following day.

10. After the complainant had mowed the offender’s front lawn, the offender came out of the house and opened the gate to the backyard. The complainant started to mow the lawn in the backyard. The offender re-entered the house.

11. About 15 minutes later, the offender came outside and pointed to an area that she did not want mowed, for a reason related to her son. That section of the lawn accommodated a small plastic wheelbarrow which contained soil and a plant. The offender told the complainant that he should not touch or move the wheelbarrow. While speaking, the offender’s eyes closed frequently.

12. Subsequently, the offender came outside again and gave the complainant a drink of water.

13. After the complainant had finished mowing the lawn, he pushed the lawnmower to the front of the house. The gate to the backyard closed behind him. The complainant knocked on the front door, as he needed to retrieve lawn clippings and the drink of water from the backyard.

14. The complainant asked the offender for her phone number so that they could discuss a lawnmowing schedule. The offender provided her telephone number. The complainant then walked through the house to the backyard. The complainant retrieved the glass of water and returned it to the house.

15. The offender approached the complainant wearing a large brown wig and stopped about a metre from where he was standing. She asked him whether he smoked “weed”. When he replied in the negative, she said that he should do so. The complainant was shocked, and his body froze.

16. The offender walked up to the complainant, kissed him on the lips, and put her tongue inside his open mouth. She put her hands on his body and leaned her head against his shoulder for a couple of seconds. She brought her body closer to the complainant’s body and rubbed against him. She kissed his neck a couple of times and moved her hands across his chest, touching his body and his genital area over his clothes. She removed her t-shirt and bra.

17. The complainant remained frozen, staring through a window into the backyard.

18. The complainant’s reverie was broken by a strong smell of cigarette smoke. The offender was removing her shorts.

19. The complainant said, “I’m 15 and I shouldn’t be doing this”. By that stage, the offender was naked.

20. The offender apologised, saying, “I thought you were older”.

21. The complainant told the offender that he had to mow other lawns and left. As he exited the front door, he saw that a large poster saying “Keep Out” had been placed on the front door.

22. The complainant pushed his lawnmower to the next-door neighbour’s driveway, where he was scheduled to do a mowing job.

23. He then took the bags of lawn clippings and walked home, as he was anxious to escape the vicinity of the offender’s house. He felt shocked and conflicted as to why the incident had occurred.

24. When he arrived home, he showered and brushed his teeth, as he felt unclean. He complained to his mother, who reported the incident to ACT Police. That evening, the complainant participated in an evidence-in-chief interview at Woden Police Station.

25. The offender was not charged until early 2020 because of various enquiries that ACT Police considered should be made before a charge was laid.

Breach offences

26. At the time of the offence, the offender was subject to two good behaviour orders.

27. On 19 July 2018, Magistrate Fryar imposed a 24-month conditional good behaviour order for each of two offences committed on 2 January 2018, being possession of a drug of dependence and common assault. Pursuant to each order, the offender was required to attend recommended programs (particularly in relation to substance abuse) and supply samples for drug testing.

28. The facts of the breach offences were that, on the afternoon of 2 January 2018, the offender was intoxicated. While travelling in a taxi, she made derogatory remarks to the taxi driver, grabbed at his shirt, and tried to hit him. He exited the vehicle and contacted police. When police attended, they found that the offender was in possession of 0.212 grams of methylamphetamine.

29. The fact that the offender was subject to good behaviour orders at the time of the offence is an aggravating feature. Although the good behaviour order offences were of a different nature to the principal offence, they were related to her substance abuse, which seems to have prompted the principal offence.

Victim impact

30. As would be expected, this appalling offence has had a significant impact on the complainant.

31. Although it is now more than two years since the offence, the complainant continues to experience considerable impact from the incident.

32. He has not returned to lawnmowing in the vicinity of the offender’s residence, losing significant income.

33. When in the vicinity for other reasons, he is hypervigilant and fears confrontation with the offender. After the incident, it was difficult for him to get to school because he did not want to take the bus close to her home.

34. The complainant still experiences nightmares and flashbacks to the offence. He relives the anxiety that he felt at the time of the offence and the feelings of disgust that he experienced during the offence. It has affected his personality, making him generally more anxious and fearful. It has affected his ability to relate freely to his friends.

Objective seriousness

35. The offence was of substantial objective seriousness.

36. At the time of the offence, the complainant was towards the upper end of the age range (15 years and seven months old), a factor that may tend to make the offence less serious. On the other hand, the offender was 40 years old, and there was a very significant age difference between the complainant and the offender.

37. Section 61(2) of the Crimes Act deals with acts of indecency committed both on and in the presence of a person under 16 years of age. The offence covers a wide range of conduct, from sexualised words to genital-on-genital contact. This was an offence “on” the complainant. It involved several types of direct physical contact (kissing on the lips, tongue kissing, rubbing the body, touching the genital area over the clothes), as well as displaying a naked body. The offence entailed a significant violation of the complainant’s personal integrity.

38. The offender committed the offence for her own sexual gratification (as opposed to, for example, as an offensive or crude prank).

39. It terminated only because the complainant resisted verbally.

40. As the offender expressed immediate surprise when the complainant told her that he was 15 years old, it seems that she did not know that the complainant was under 16 years old. The plea of guilty establishes that she did not have reasonable grounds to believe that he was 16 years of age or older.

41. The offence was of short duration and it was an isolated incident. It appears to have been impulsive and opportunistic.

42. As one would expect, the complainant was deeply shocked and remains psychologically affected by the incident.

Subjective features

43. The offender is now 42 years old.

44. The offender’s criminal record is limited and contains no offences of a similar nature. In New South Wales, the offender has convictions for driving offences, including driving in a manner dangerous occasioning grievous bodily harm in 1999, for which, in 2000, she received a sentence of 32 months’ imprisonment with 16 months’ minimum term. In 2014, she was convicted of driving under the influence of alcohol and, in 2018, she was convicted of driving with a mid-range prescribed concentration of alcohol in her blood, and she received an eight-month conditional release order.

45. While subject to the good behaviour order, the offender’s attendance at appointments was inconsistent, but she engaged “to a satisfactory level”.

46. The offender was born in New South Wales. She is one of four children. When she was three years old, her parents separated, and she resided thereafter with her mother. When she was 16 years old, she moved to live with her father, because her mother was abusing alcohol. However, he introduced the offender to illicit substances.

47. The offender has regular telephone contact with her mother and maintains a relationship with her three sisters. Her father passed away in 2020. The offender has children who are currently in foster care. She maintains regular contact with her children. She hopes to resume full-time care of her five-year-old child, although no application has yet been lodged with the Federal Circuit Court.

48. The offender resides in government housing. It is some years since she has worked. She is studying part-time at the Canberra Institute of Technology (CIT) towards a Certificate III in Community Services and receiving a jobseeker payment from Centrelink. Her hobbies include running and gardening.

49. For most of her life, the offender has abused alcohol. At 13 years of age, she began to drink alcohol. At 16, she began to use illicit substances, progressing from amphetamines to methylamphetamines. She also used cannabis regularly and cocaine when available.

50. From 4 June 2019 until 23 September 2020, the offender attended a residential rehabilitation program at Karralika. In September 2020, she graduated from the program and returned to her housing property. She remains enrolled in the outreach program and continues to receive counselling and case management. A report from Karralika states that she has created a recovery plan and is working diligently on her goals for reunification with her children, to study at CIT, and to complete the 12 Alcoholics Anonymous (AA) steps with her sponsor. I am informed by the offender’s legal representative that she expects to remain in the Karralika outreach program for another one to two years.

51. The offender’s counsellor, Mr Veldre, states that she remains abstinent and has adopted a healthy lifestyle, including regular exercise and healthy eating. She has improved her decision-making and is able to critically analyse decisions rather than acting impulsively. She has improved in her capacity to set personal boundaries and is focused on goals, including studying with a view to working in the community sector and restoration of her younger child. Mr Veldre stated that the offender appears to be fully committed to her recovery.

52. Her sponsor reported that the offender was dedicated to her recovery and follows all the sponsor’s advice. She regularly attends AA meetings and meets with her sponsor once a week to continue working through the 12 AA steps.

53. The offender reported a history of mental health issues, largely related to substance abuse. She takes medication for anxiety.

54. The offender told the author of the pre-sentence report that she had a limited recall of the offence because, at the time of the offence, she was under the influence of alcohol and possibly cannabis. The offender expressed shame for the offence and was fearful of the possible consequences. She understood the need to take responsibility for her actions, expressed regret for her behaviour, and reflected on how the offence may have impacted the complainant.

55. The author of the pre-sentence report assessed the offender to be at medium-low risk of general reoffending. Her primary risk factors were substance abuse and associated mental health problems.

56. The offender has been assessed as suitable for an Intensive Correction Order (ICO) and has signed an undertaking to comply with all the obligations of an ICO.

Comparable cases

57. ACT Sentencing Database statistics show that, for offences of this type, two thirds of offenders (64 people) received sentences of full-time imprisonment, ranging from six months’ imprisonment to three years’ imprisonment. Many such offenders were sentenced for offences of acts of indecency at the same time that they were sentenced for offences of sexual intercourse, for which it was virtually obligatory for a sentence of full-time imprisonment to be imposed, and this consideration may have increased the number receiving a sentence of full-time imprisonment. Sentences of six to 18 months imprisonment were common and generally reflected that the person had been convicted of more than one offence.

Other sentencing considerations

58. In sentencing the offender, I am required to take into account the factors in s 33 of the Sentencing Act, insofar as they are known and relevant. I have referred to most of the relevant factors above.

59. There is one further factor to which I should refer; that identified in s 33(1)(r):

Whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender.

60. In R v CV [2013] ACTCA 22; 233 A Crim R 67, following the decision of TMTW v The Queen [2008] NSWCCA 50, the Court of Appeal concluded that the imposition of a penalty that resulted in the person being registered as a sex offender could be described as “extra-curial punishment”; the impact of registration needed to be considered on an individual basis.

61. The offender's counsel submitted that, if the offender received a sentence of imprisonment, or indeed a good behaviour order with supervision conditions, she would be placed on the sex offender register for a period of eight years. It was submitted that registration may affect her capacity to obtain the full-time care of her five-year-old child and it was quite likely that it would interfere with her ability to participate in activities with her child, such as schooling activities and extracurricular activities that involve other children.

62. I granted an adjournment to allow the offender to seek further evidence about the impact of registration on her, but no evidence was forthcoming.

63. Relevant sentencing purposes include general deterrence, accountability, denunciation, and recognition of harm to the complainant. Given the steps that the offender has taken towards rehabilitation from substance abuse, rehabilitation is a relevant sentencing purpose.

Sentence

Primary offence

64. Having regard to the objective seriousness of the offence, a sentence of imprisonment should be imposed.

65. The starting point for the sentence is two years and six months' imprisonment, to which I apply a discount of 20 per cent for the plea of guilty, reducing the sentence to two years' imprisonment. From the period of two years' imprisonment, I deduct a period of eight months to recognise the period of 15 and a half months that the offender spent undertaking a residential rehabilitation program at Karralika, leading to a sentence of 16 months' imprisonment.

66. Given the objective seriousness of the offence, full-time imprisonment is a sentencing option. However, it is not the only available option and the sentence could appropriately be served by an intensive correction order.

67. The offender is convicted and sentenced to 16 months’ imprisonment from 13 May 2021, to be served by way of intensive correction order in the community.

68. In addition to the core conditions, I impose an additional condition that she not consume alcohol.

Breach offences

69. In relation to the breach offences, the Magistrates Court imposed two-year good behaviour orders with conditions of supervision. Within five months, and against a background of inconsistent compliance, the offender committed the primary offence.

70. Consequently, I consider that it is appropriate appropriate to cancel the good behaviour orders and resentence the offender in each case to a two-year good behaviour order from 15 April 2021, with the following additional conditions:

(a) Accept the supervision of Community Corrections for at least 12 months and thereafter for such period that Community Corrections deems appropriate;

(b) Report to Community Corrections by 4 PM on 16 April 2021;

(c) Undertake such treatment, counselling, and programs as are recommended by Community Corrections; (d) Supply such samples as are requested by Community Corrections for the purposes of testing for substances.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

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