R v Barker [2014] ACTSC 115

Crimes Act 1900 (ACT), ss 55(2), 61(2), 64(3), 65,

1. Royston Paul Barker, you appear before me today for sentence with respect to a number of offences which were presented on an indictment containing 16 counts.
2. On 2 December 2013, the first day of the trial of those counts, you entered pleas of guilty to four counts. One of those was count 16, a charge of possession of child pornography (s 65 Crimes Act 1900 (ACT)). That carries a maximum penalty of seven years' imprisonment. The three remaining counts to which you entered pleas of guilty were counts 10, 14 and 15. Each of those counts alleged an offence of using a child for the production of child pornography (s 64(3) Crimes Act 1900 (ACT)) and each count carries a maximum penalty of 10 years' imprisonment. You maintained your pleas of not guilty to the remaining counts on the indictment.
3. After trial, you were found guilty by the jury of seven counts, not guilty with respect to two counts, and the jury was discharged from returning verdicts on two counts on the basis that they could not agree. One count was the subject of a verdict of acquittal by direction during the trial. The counts upon which the jury returned verdicts of guilty were counts 5 and 6 which were respectively counts alleging acts of indecency on a person under the age of 16 years (s 61(2) Crimes Act 1900 (ACT)). Those counts each carried a maximum penalty of 10 years' imprisonment. The jury returned verdicts of guilty of five counts (counts 4, 9, 11, 12 and 13) of sexual intercourse with a person under the age of 16 years (s 55(2) Crimes Act 1900 (ACT)). Each of those counts carries a maximum penalty of 14 years' imprisonment. The jury's verdicts mean that they were satisfied beyond a reasonable date that you did the acts alleged by the Crown with respect to those counts where they returned verdicts of guilty. They also mean that the jury were not satisfied on the balance of probabilities that at the time that you did those acts, you believed on reasonable grounds that the victim, CS, was of or above the age of 16 years. I am satisfied beyond a reasonable doubt based upon the evidence that was called during the trial that within weeks of your meeting CS, she told you her correct age which was 13 at that time.
4. I accept that these offences occurred in the context of a boyfriend/girlfriend relationship and that you held genuine feelings for the victim. There was, however, a very significant age difference between the two of you. When you first met in mid-2006, CS was only 13 and you were 20, nearly 21. Inevitably, there was a very significant imbalance in the relationship. You, as the much older person and indeed an adult, had the responsibility of appreciating her potential vulnerability and the influence that you exerted over her. It may well have appeared to you that she was mature, both physically and emotionally, and an enthusiastic participant in your relationship, but as an adult, you should have appreciated the fact that she was, in law and in fact, a child with the emotional development and vulnerabilities of somebody her age.
5. I accept that the sexual activity between you and the victim was consensual but this is not mitigatory. Lack of consent is not an element of any of these charges and if present would have constituted a more serious offence.
6. I note that you have no previous convictions recorded against you but the impact of that circumstance on sentencing is moderated by the fact that you are not facing a single isolated charge. The sexual contact offences extended over a five-month period between May and October 2008 and on three separate occasions. I accept that you were unaware that it was an offence to take sexually explicit photographs of the victim when she was 16 but one of the offences involved you taking sexually explicit photographs of her when she was, and you knew her to be, 15 years old.
7. In assessing the objective seriousness of these offences, I take into account that the complainant was 15 approaching 16 at the time of the sexual contact offences and on the occasion when you took sexually explicit photographs of her as alleged in count 10. Secondly, I take into account that you were in a committed boyfriend and girlfriend relationship with her and that your acts were not predatory. However, they formed part of a course of conduct and they occasioned emotional damage to the victim which revealed itself as she became more mature and better understood the nature of the relationship. The Victim Impact Statements speak eloquently of the effects that this relationship has had upon CS and her family.
8. I do not regard these offences as trivial but I would place them in the lower range of such offences. In sentencing you, I accept that you have demonstrated limited remorse for your actions but I am unconvinced that you fully appreciate the seriousness of your actions. I also take into account that you are unlikely to reoffend.
9. I take into account that you have suffered anxiety and depression as a consequence of these charges being laid. I have also taken into account that you have suffered financially as well as emotionally and socially by reason of these charges being laid. I also take into account that if a conviction is recorded, it is likely to impact on your current employment and may also impact adversely on your prospects of overseas travel with your current partner. I also take into account that you have cooperated with the police in their investigations of these offences and that you made certain admissions in the course of the trial which facilitated the administration of justice. I also take into account the fact that the sexually explicit images of the victim which you took were not disseminated in any way.
10. It is a fact that if a conviction is recorded, you will be registered on the Child Sex Offender's Register which will potentially have impacts upon your life.
11. I also take into account the numerous testimonials that were tendered during the sentence hearing which speak of your good character. I also take into account your history and your family history as set out in the contents of the Pre-Sentence Report.
12. You entered pleas of guilty, as I have noted, to a number of the charges. Those pleas came at a late stage, on the very first day of the trial. Nevertheless, I am satisfied that they do demonstrate a degree of remorse and had some slight utilitarian value. I will reduce by approximately 10 per cent the sentences that I would otherwise have imposed but for your pleas.
13. I accept that you have good prospects for rehabilitation. I note in that regard, the contents of the report from the psychologist which was placed before me during the sentence hearing.
14. You submitted at the conclusion of the sentence hearing that I should not record convictions with respect to these matters. In my opinion, the difference in age between yourself and the victim and the fact that I am not dealing with an isolated offence means that this would be an inappropriate sentencing disposition with respect to these charges. In my opinion, convictions are inevitable.
15. The Crown urged that I impose custodial sentences largely to act as a deterrent to others who may be minded to offend in this way. I am not satisfied that the imposition of sentences of imprisonment in any form is warranted in the circumstances of this case. Convictions carrying with them registration on the Child Sex Offenders Register will be sufficient to satisfy the requirements of general deterrence in the present case.
16. Now would you stand, please?
    • With respect to counts 9, 11, 12 and 13, I record convictions and there will be a Good Behaviour Order for a period of three years with conditions: that you are to accept supervision of Adult Corrections for a period of two years or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of officers of Corrective Services;
    • With respect to count 4, you are convicted and there will be a Good Behaviour Order for a period of two years. In light of the conditions that I have imposed with respect to counts 9, 11, 12 and 13, I will not impose any further conditions on count 4;
    • With respect to counts 5 and 6, I record convictions and there will be a Good Behaviour Order for a period of two years, again with no further conditions;
    • On count 10, you will be convicted and there will be a Good Behaviour Order for a period of 20 months, again with no further conditions;
    • On counts 14 and 15, you will be convicted and there will be a Good Behaviour Order for a period of 16 months, again with no further conditions; and
    • On count 16, there will be a conviction and will be a Good Behaviour Order for a period of 10 months, again with no further conditions.

Each of those Good Behaviour Orders is to commence today.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.