R v Carney [2013] ACTSC 266

Supreme Court of the ACT|2013-12-20|Before: Refshauge J

1. Mr Carney be sentenced for the offences to which he has pleaded guilty on the basis of the facts determined in [179]-[182].

1. In about mid-2011, Thomas Earl Carney, the accused, met JA, the complainant, at a church run youth group in Wanniassa.

2. In early July, JA, at Mr Carney's request, took photographs of her breasts and her vagina with her mobile phone and sent them to Mr Carney. He also sent photos to her of his penis.

4. For example, on one occasion, there was an SMS text exchange between them about Mr Carney providing credit for JA's phone by way of his credit card, which was as follows:

Mr Carney: What do I get if I give u my credit card?

Mr Carney: Fine blowjob and that's as low as I'm going.

5. The youth group leader understood that Mr Carney was asking JA to engage in sexual activity with him. The youth group leader texted Mr Carney telling him to stop having contact with JA and told JA that she should stop texting Mr Carney.

6. Later, the youth group leader had a conversation with JA and also later with Mr Carney. She told Mr Carney that she had seen a screenshot of his message to her and had talked to her about it. It is not clear which message she saw. She said that he was pestering JA and that he should stop. The youth group leader said that Mr Carney became annoyed and said that it was JA who had initiated contact and that the youth group leader should not get angry with him. The youth group leader responded that it did not matter who started it, it was inappropriate; JA was fifteen years old and that he should stop. Mr Carney agreed that he would stop.

7. On 26 July 2012, however, Mr Carney was texting JA again and he asked if he could come over to her house and hang out. She agreed and Mr Carney came over.

8. JA said that when she opened the door, he came straight in, grabbed her and pulled her close and started kissing her. She said she was not very happy with that. She said that Mr Carney then said, "Let's take it to the bedroom" so they went to the bedroom. He said, "Oh, let's have sex?" and she said, "Okay".

9. She said that they both undressed and she said "we had sex, but then he was starting to go too far".

10. She said, "He was trying to, like - because obviously he's too big for me, and he tried to keep going to get all the way in and I said, 'Stop, no that's - that's too much.' And then - and then he continued."

11. JA said that she told him to stop and tried to push him off, but he held her down by the shoulders and "kept going".

12. She said she had to squeeze him in the throat, and when he got off she kicked him in the stomach and he stood up.

13. She said that he then took photos of her and went to the front door and said, "If you tell anyone about this I will put these photos on Facebook and tell everyone what happened".

14. The next day, JA attended the youth group. It was clear to the youth group leader that she was very upset. She was crying. Some of her friends comforted her but she was really upset.

15. Later, the youth group leader managed to speak to her and asked her what was wrong. JA was still very upset and kept crying.

16. JA, however, told the youth group leader that she "I invited Tom over the other day ... [and we] were getting it on ... [I] asked him to stop ... he raped me."

17. The youth group leader comforted JA, though she would not stop crying. It ended when one of JA's parents arrived to collect her.

18. The youth group leader went to the senior youth leader who contact JA's parents and told her about it.

19. JA's parents took her to the police station where she was interviewed and later examined by Dr Catherine Sansum.

20. Dr Sansum is a registered medical practitioner employed as a specialist by Clinical Forensics ACT, Forensic and Medical Sexual Assault Care and the Child at Risk Unit of the Canberra Hospital.

21. She examined JA on 28 July 2012. She took a history and conducted an examination.

22. A genital examination revealed a superficial linear laceration, approximately 3 mm in length in the posterior commissure and an area of redness approximately 5 x 5 mm located on the posterior aspect of the internal surface of the right labia majora, external to the hymen. She also collected some swabs, being a labial swab, a low vaginal swab, a high vaginal swab and a buccal swab.

23. She described the laceration as caused by blunt force leading to a "splitting" type of injury. The object that caused the trauma would have penetrated through the labia majora.

24. She said that it was highly likely that JA would have felt the injury happening at the time, but would not necessarily have any subsequent pain.

25. She was unable to identify what kind of object had caused the injury, but agreed that it could have been a penis, a finger or even a tampon.

26. She was of the opinion that it had to have occurred within 48 hours prior to her examination.

27. Her procedure was to take a history from JA and then to supplement that by specific questions. She agreed that in the initial history given to her, there was no mention by JA of any of Mr Carney's fingers being inserted into her vagina, but that on questioning, she said that his penis had "just" penetrated her vagina and his fingers had penetrated also. She agreed also that she noted that Mr Carney's mouth had come in contact with both JA's mouth and also her vagina.

28. She found no vaginal bleeding and, apart from what had been noted above, no sign of recent injury. There was no tenderness found.

29. On 9 August 2012, Mr Carney was arrested and appeared in the ACT Magistrates Court on 16 August 2012. He was charged with three offences, to each of which he pleaded not guilty.

30. After a number of adjournments, he was committed for trial to this Court on 14 February 2013.

31. On 8 April 2013, an indictment containing five counts was filed.

32. On 5 September 2013, Mr Carney pleaded guilty to two counts on the indictment, which were:

FIRST THAT between 6 July 2012 and 27 July 2012 at Canberra

COUNT in the Australian Capital Territory THOMAS CARNEY used electronic means to suggest to a young person, namely [JA], that she take part in an act of a sexual nature.

SECOND AND FURTHER THAT on 26 July 2012 at Canberra

COUNT aforesaid THOMAS CARNEY engaged in sexual intercourse with [JA], being a person under the age of 16 years.

33. The former is an offence under s 66(1) of the Crimes Act 1900 (ACT), the latter an offence under s 55(2) of the Crimes Act. The Crown indicated that it would accept those pleas in full satisfaction of the indictment. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45].

34. While the facts relating to the first charge are not in dispute, there was no agreement between the prosecution and Mr Carney about what it was that constituted the sexual intercourse the subject of the second charge.

35. On 9-10 September 2013, a disputed facts hearing was conducted.

36. Section 50 of the Crimes Act gives an extended definition of "sexual intercourse" for the purposes, inter alia, of s 55(2). That definition relevantly is:

(a) the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law

37. In this case, the prosecution alleges that Mr Carney introduced his penis into JA's vagina. Mr Carney disputes that, and says that he introduced his finger only into her vagina.

38. I heard evidence from six witnesses, being the Forensic Medical Practitioner, Dr Catherine Sansum, as well as the youth worker at the Church, the complainant JA, her mother, the police investigator and from Mr Carney.

39. JA's evidence-in-chief consisted of a recording of an interview she had with police on 2 August 2012. See Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). It was followed by some limited questioning by Mr T Hickey, who appeared for the prosecution.

40. JA explained the incident as follows. She and Mr Carney had made contact on the evening of 26 July 2012 through text messages. She continued:

So we - we were texting for a while, and then he asked if we could - he could come over to hang out. So I said yes, because I thought we were going to just hang out. And then - so he came to the front door. He knocked on the door. I went to go answer it. And then when I opened the door, first he straight away grabbed me and he started - like, pulled me and close to him and started kissing me. And I wasn't very happy with that. And then he's, like, 'Let's take it to the bedroom.' So we went to my bedroom. And he was, like, 'Oh, let's have sex.' And I said, 'Okay.' And then that's when he got naked and he stripped me. And then he was - we had sex, but then he was starting to go too far. He was trying to, like - because obviously he's too big for me, and he tried to keep going to get all the way in and I said, 'Stop, no, that's - that's too much.' And then - and then he continued. And he - and I was like 'Tom get off', and then I tried to push him off, but then he held me down and kept going. And then I had to squeeze him in the throat and then he kind of got up, but then I kicked him in the stomach and he got up. And then he took photos that night. And then when he went to the front door he said, 'If you tell anyone about this I will put these photos on Facebook and tell everyone what happened.' So he threatened me ... [t]hen he went home ... I just went to bed [after that], because this was at ten thirty.

41. JA was asked further questions and elaborated on her evidence.

42. She explained some of the background and circumstances of their relationship but it is not necessary to detail that here, other than as set out above (at [1]-[4]). JA did say to police that she told Mr Carney how old she was.

43. She also explained that, on the night in question, her mother was at work, and she had told Mr Carney that her mother was not home. Mr Carney arrived just after 10:35 pm. I have described the arrival events as described by JA above (at [8]). She said he was wearing a baggy white shirt, black "trackies" and red Vans brand shoes. She could not remember the colour of his underwear. She was wearing a navy blue button jumper, a white shirt with grey sleeves, blue and pink pyjama pants, underwear and a black bra.

44. She said that, after they had undressed in the bedroom, they started kissing a bit and then Mr Carney said, "Let's have sex". She said, "Yes" or "Okay" and he got on top of her and put his penis in her vagina and "started penetrating, but it didn't go in all the way ... [b]ecause it was too big". She said that "he kept trying to go in further and further ... [a]nd it wasn't working". She said that as Mr Carney tried to penetrate further, she resisted, telling him to stop but he said "That's not gunna happen" and he continued his attempts at penetration.

45. She said, however, that his penis was "floppy" when he was having sex with her. She said it was inserted to about the length of her middle finger. She also said that his penis was about 15 cm in length. She said that what was happening really hurt and she asked him to stop but he did not. She tried to move around a bit but he held her down by putting both his arms on her shoulders so she could not move. She said that he said to her, "You're a Christian. Um, when you get married and your husband [sic], you don't want to go through all this pain, so it's better to loosen up now".

46. JA then said that she squeezed Mr Carney around his throat, based on her experience with Taekwondo. She said he then got up, but slowly, and she kicked him in the stomach with her right leg. It was not a hard kick. It was then that he made the comment about Facebook.

So, like, he - we were having sex and then he was - he got up and then he, like, pulled his phone out. He obviously was, like, pretending he wasn't taking pictures, like, because he has an iPhone. He was, like, obviously trying to, like, pretend he was checking the time ... Because that's what he said. He was, like, 'Oh, what's the time?' He did that a few times. And then he obviously was taking some pictures, because when he got up at the end he showed me. He was, like, 'If you tell anyone, I'll put these up,' and showed me. So I didn't know that he was taking pictures.

48. The pictures were, she described, of her lying naked on the bed but Mr Carney was not in the pictures. She said she was only shown one picture. When Mr Carney threatened her with uploading the pictures on Facebook if she told anyone, she agreed not to tell anyone of what had happened.

49. She told police also that, after they had stopped the sexual activity, Mr Carney told her to delete all the messages on her phone between them and that he watched while she did that, including the photos. This, she said, was done before he made the comment about Facebook.

50. She said that she sustained no injuries during the sexual activity and that Mr Carney did not ejaculate.

51. She said that, on the Friday after the incident, she complained to her youth leader who telephoned her mother and JA then told her mother. I have set the details of that earlier (at [14]-[18]).

52. JA was cross-examined. It was suggested to her that Mr Carney had not, in fact, put his penis in her vagina, despite what she had told the police. She rejected the suggestion.

53. She was also asked about the forensic medical examination after the complaint had been made. She agreed that she understood that what she told Dr Sansum might be used in court and that it was important for her to provide accurate information.

54. She could not remember whether she told Dr Sansum that Mr Carney had grabbed her and that he had wanted to go straight to the bedroom. She said that she did not tell her that Mr Carney kissed her. She could not recall whether she told Dr Sansum that she said "no" to Mr Carney, but said she did tell her that she had to place her hands around his neck and kick him.

55. She also said that she told Dr Sansum that she had never been sexually active before, but she could not recall whether she had told the doctor that Mr Carney put his fingers in her vagina. She agreed that Mr Carney had put his fingers in her vagina, though she could not recall whether she told the police that.

56. She denied that Mr Carney had done anything apart from putting his fingers and his penis in her vagina. She could not remember telling Dr Sansum that he had put his mouth on her vagina and said it would be a lie to have told her that as it did not happen.

57. She was asked about the claim she made that Mr Carney had taken pictures of her at her house that evening. She explained that while they were engaged in sex, Mr Carney got up to check the time on his phone, which was on her drawers next to her bed. She said that "obviously" this was when he took the photo.

58. She also explained that he was using his hands to insert his penis into her vagina. She repeated that he suddenly stopped and said "I've got to check the time". He picked up his phone and checked it and then put it down. He apparently held his phone up in front of her, being, apparently, when, she suggested, he took the photograph. He then put it down and continued putting his penis in her vagina. She could not recall whether that was with one hand or both hands. She said that his penis was at all times floppy.

59. She also denied that she had said that Mr Carney checked the time more than once and to have said so would be a lie.

60. It was put to her that Mr Carney did not threaten her with the picture but she affirmed that he did.

61. She was asked about telling Dr Sansum that she had not been sexually active before, that she had not previously had sex. She recalled that she had also told the police that she had not had sex before and that she was a virgin. She agreed that it was important to tell the police the truth.

62. She was asked about sending a text to Mr Carney which indicated that she had had sex before. She said she could not remember doing so. Her evidence was in the following terms:

And did Tom send you a text like this, 'Well, don't you think the fact that you've already had sex makes that point about sex before marriage redundant?'? --- I can't remember.

Are you just saying you can't remember because you don't want to answer the question? --- No.

Did you send Tom this text:

'Yes, thanks for rubbing it in. But I didn't enjoy it when I did.. I didn't want it? I DID want to save it for the guy I truly loved and wanted to spend the rest of my life forever.. But now, because of that, I have to suffer the consequences. They may not be now. But they will come around when I am looking to marriage, as he will be another Christian looking for a virgin.'

? --- I can't remember.

Is that the kind of text you think you might've sent Tom? --- Maybe the last part, but I don't - I can't remember.

Do you agree that you indicated to Tom that you'd previously had intercourse? --- No.

63. Despite JA's denials, these messages were retrieved from Mr Carney's phone and photographs of the messages tendered by the prosecution. Despite these messages, JA denied that she had indicated to Mr Carney that she had had sexual intercourse before.

64. It was also suggested to her that she had sent a text to Rachel Moran, one of her youth workers at the Church she attended, telling her that she had had sexual intercourse. She said that she could not remember but maintained that she was still a virgin. She then admitted that she had lied to Ms Moran. She could not explain why she had done so.

65. A number of text messages said to have been sent by her to Ms Moran were put to her, clearly suggesting that she had previously engaged in sexual intercourse, but she said, for the most part, that she could not remember them. She denied that she was saying that she could not recall because she did not want to answer. Nevertheless, she agreed that she had made up a story for Ms Moran and sent false texts to her.

66. She rejected the suggestion, however, that she had lied when she told police that Mr Carney put his penis in her vagina.

67. JA also denied that she had taken Mr Carney into the bedroom. She said that when he first walked into the house, he started kissing her and then "we went to the bedroom ... [and] [w]e had sex". She said she was surprised by the fact that Mr Carney had "come over with some kind of physical interest in [her], and all of a sudden [they're] having sex". She rejected an assertion put to her that it did not happen like that. She denied she was making it up.

68. Despite what she had earlier said, JA then agreed that she showed Mr Carney into the bedroom. She said, "He wanted to go [to the bedroom], so I said okay" and then she led him to the bedroom. She agreed that they undressed and that Mr Carney undressed her. While he was doing that she said that she was just "standing there".

69. She also said that Mr Carney checked the time, "After we had a bit of sex", and then, "We went back to it" after he had checked the time.

70. She was asked about how Mr Carney stopped her getting up. She said that Mr Carney held her by the shoulders. This appeared to be, however, when she said he was still trying to put his penis into her vagina with his hands. She then suggested that he held her down afterwards. She said that he had stopped holding her down by the shoulders when she squeezed him by the throat.

71. As to deleting "everything" from her phone, JA said that she did it because she was "scared he would threaten me" and, when asked with what, said "[p]hotos", even though he had not done that at that time. She said she was scared that he would threaten her with the photos she had previously sent him. She said that he did not, however, make any threat until he was walking out the door to stop her telling anyone about what had happened that evening. She said he showed her, at that time, the photo she said he had taken that night. She said she only saw one photo, despite telling the police that he had referred to "these photos", explaining that she thought he may have taken "a couple".

72. She was taken to some texts, exchanged between herself and Mr Carney. Despite having said that she had deleted texts between herself and Mr Carney, police located a number of texts between them in the days prior to the incident. Although she could not remember them, they were admitted into evidence and included the following texts were exchanged on 25 July 2012:

Mr Carney: Do you still want to meet up tonight?

So we can make out for longer :)

JA: No

Mr Carney: Well how long are we going to make out for?

JA: We will just see how it goes

Mr Carney: OK

73. It was also pointed out to JA that, later, she had asked Mr Carney for credit for her phone and asked him for his credit card details, part of that exchange which was quoted in an edited form above (at [4]). The texts sent were:

JA: Could you have credit by Friday?

...

Mr Carney: I'll have it on Friday.

JA: When?

Mr Carney: On Friday?

JA: By youth?

Mr Carney: After we make out

...

JA: ... Please can I use credit card? I promise nothing will go wrong ...

Mr Carney: What do I get if I give you my credit card?

JA: The same? Because that's all I'm getting. My $30 credit.

Mr Carney: No it'll have to be more because I'm giving you credit card details

...

JA: How much?

Mr Carney: How much you willing?

JA: Honestly? Nothing more.. But you say

Mr Carney: Sex

Mr Carney: Fine blowjob and that's as low as I'm going

JA: Okay. Nope.

...

Mr Carney: Fingering?

JA: No!

74. JA said she did not remember this exchange, even though it was at about 9:30 pm on the night before the offence.

75. JA was also asked about how Mr Carney undressed her. She said that he did not rip any of her clothes. She had, however, told police:

Well, I was wearing my good buttoned shirt and, like, a buttoned jumper thing. He took that off. He, like, just ripped it, like, yeah, and then he took off my shirt, then me pants, then my bra, then my undies.

Yes, those buttons, he ripped the buttons. He didn't actually rip or tear the shirt, though.

So he ripped the buttons? --- Yes, but not - like yes.

77. She was also asked about the sequence of events. She said, in evidence before me, that Mr Carney and she started kissing and then having sex. She later said, however, that they began having sex before kissing. She said to the police "he ... started kissing me ... And then he was, like, 'Let's have sex'". She agreed that the versions were different, but denied that the difference was because the story was made up. She then said that what she told the police was correct, which suggests that what she said in evidence was not.

78. She also agreed that, when she told the police that after Mr Carney got off her after she kicked him Mr Carney told her that if she told anyone about what had happened he would put his pictures of her on Facebook, that that was an incorrect version of the sequence of events.

79. JA also denied that Mr Carney ran his hands over her body or that he put his finger in her vagina. She denied that he put his finger in her vagina and then stopped when she told him that he did not want to do that anymore.

80. In re-examination, JA agreed that the texts she sent to the youth worker, Ms Moran, in which she suggested that she had previously had sex, were a lie. She could not explain why she had lied.

81. A youth leader at the church group attended by JA, Ms Moran, also gave evidence. She explained that the group was for young people from about 11 or 12 to 18 or 19. The group was typically attended by between 20 to 60 young people each Friday night.

82. She knew both Mr Carney, who came in to the youth group off the street one night some years earlier than the date of the offence, and the complainant, JA.

83. Ms Moran gave evidence of a text message conversation with JA which referred to some text conversations with Mr Carney that were about "sexual stuff" with him. Ms Moran said she responded by suggesting to JA that she should stop having such message exchanges.

84. The following Friday, 20 July 2012, she had a conversation with JA who had approached her, crying, as she did not want Mr Carney there. As stated above (at [6]), Ms Moran spoke to Mr Carney and told him that she had seen the messages he had sent to JA and that she had complained he was pestering her. He was annoyed because he said that "it wasn't all him but [JA] had initiated it". He also referred to the photos of JA and him naked that they had exchanged.

85. Ms Moran said she told Mr Carney that it did not matter who started the exchanges, he should finish it, particularly as he was older than she was. She told him it was uncalled for and inappropriate. She said that he agreed.

86. While they were talking, JA sent Mr Carney a message saying, "Why did you talk to her and tell her everything?" and he showed the message to Ms Moran, who then borrowed his phone and messaged JA back, saying "stop talking to Tom, he's not going to be talking to you anymore". He then deleted all the messages between him and JA.

87. On Sunday, Ms Moran spoke to JA, who said Mr Carney was texting her again, and she advised her to just stop messaging him.

88. She next saw JA at the Friday youth group on 27 July 2012, as outlined above (at [14]-[17]). Mr Carney was not there that night. JA was really upset and later in the evening she talked to her. She explained the conversation as follows (quoted in part at [16]):

[JA] said, 'You're going to be really upset with me if I tell you.' And I said it doesn't matter just tell me and like are you okay?' And, yes she said, 'I invited Tom over the other day.' She didn't say what day, but that she said that they were getting it on. I don't know what she meant by that exactly, but she said that they were getting it on and then she asked him to stop. And then she said, 'Then he raped me' and she started crying again. So I hugged her and I said it was going to be okay and she wouldn't stop crying. And then she had to leave because one of her parents were waiting for her and so she left at that point, yes.

89. Ms Moran was cross-examined. She agreed that JA would tell her "private stuff" over the years. The evening of 27 July 2012 was not the first time JA had suggested to Ms Moran that she would be upset by what she had to tell her.

90. In particular, she recalled a series of text message exchanges in which JA told her that she was not a virgin any more, as she had had sex. The exchange occurred in mid-July, before she had spoken to Mr Carney. Ms Moran said she made it clear to JA that she did not approve and thought that she should not have sex outside of marriage.

91. JA's mother confirmed JA's age and gave evidence of the contact that she had had on 27 July 2012 from one of the youth leaders at the church that JA attended.

92. She had a conversation with JA as a result and JA told her "I was raped last night". JA then told her:

She just said that she had invited a boy over, and they'd had sex. And she started going into detail, saying how he - he - she said no and to stop, because he was starting to hurt her and ... It was seemed from what she was saying that the minute he walked in the door, he started kissing her and they ended up in the bedroom. And then when they were trying to have sex, he started to hurt her, and that's when she said no and stop.

93. She said JA told her the boy was Mr Carney. She also said that JA told her:

[S]he started fighting - fighting him off. And that's when he backed off and - and then he threatened her with photos, that if she told anyone, he would put the photos up on Facebook.

94. JA's mother told her that JA had said she kicked him and "did a choke hold" on his throat.

95. The two of them went straight away to the Tuggeranong Police Station to report the incident and later to the Canberra Hospital for a forensic medical examination.

96. In cross-examination, JA's mother said that JA had not told her about sending nude photographs of her to Mr Carney, though she later discovered that.

97. The investigator of the matter, Detective Senior Constable Peter Maguire, gave evidence about the matter.

98. He gave evidence about arrangements he made for JA to attend the Canberra Hospital for a forensic examination and about the access he gained to three mobile phones used by JA, from which he produced images that were later tendered and from which the extracts referred to variously above had been taken.

99. He also said that, in a conversation with JA, he became aware that she had exchanged naked photographs with Mr Carney, but he did not find any such photographs on her phone.

100. He described the arrest of Mr Carney and the execution of a search warrant at his house. He seized Mr Carney's phone. Investigation did not locate any of the pictures of him or JA naked on it.

101. He also conducted a forensic procedure, consisting of the taking of a buccal swab from Mr Carney. That was tested and showed DNA consistent with Mr Carney's DNA inside JA's vaginal tract and on areas external to it.

102. In cross-examination, Detective Senior Constable Maguire agreed that his attendance at Mr Carney's place would have been a complete surprise to Mr Carney and that he was able to access the message on JA's phones and Mr Carney's phone in the days leading up to the offence, from 21 July 2012. They had not been deleted.

103. He found, on Mr Carney's phone, one image of JA naked which, he said, she appeared to have taken herself using a phone or a camera in front of a mirror. He was not able to say when it had been taken. There were no other photos of JA naked on the phone, though there were other photos of her. The photo of JA naked was not the photo that JA had described, which she said was taken in her bedroom by Mr Carney.

104. Dr Catherine Sansum is a registered medical practitioner practising in the Forensic and Medical Sexual Assault Care Section at the Canberra Hospital. She has qualifications as an expert in this area.

105. She examined JA on 28 July 2012, about 48 hours after the incident. She relied on her notes and report, having little independent memory of the examination or discussion with JA.

106. Her findings are set out above (at [22]). She formed the opinion that the linear laceration was caused by some form of blunt force trauma, namely penetration, including by a thinner or thicker object. The injury was not external to the genitals but was within them, made by a force introduced through the labia majora. Dr Sansum thought that the injury would have been caused by downwards pressure. It was consistent with no genital pain being reported by JA, though she would have felt some discomfort when it happened, perhaps a sharp pain.

107. Dr Sansum was asked about DNA being found from a high vaginal swab that she had taken and said that it was consistent with the DNA being both deposited directly there or introduced into the high vagina by the swab she used. As she said, if there was DNA externally in the low vagina, it is possible that as her swab passed through that, it has actually sampled something from the low vagina but ending up on the high vaginal swab.

108. Dr Sansum was also appropriately cautious as to the time that the trauma occurred; saying that it was impossible to give a precise time-frame. Such injuries start to heal, but not before about 48 hours. Here, there was no such healing, so the injury is most likely to have occurred within 48 hours of the examination.

109. In cross-examination, Dr Sansum agreed that the blunt force was possibly caused by the introduction of a penis or a finger. She could not differentiate between JA's finger and Mr Carney's finger. She guessed that, if presented with enough force, a flaccid penis may be able to cause the injury, but agreed that it would be harder to exert force with a flaccid penis.

110. She also agreed that the redness she found was a non-specific finding and that, while it might be an injury, it might be something else, such as an infection or inflammation or trauma. She added that, "It might also just be part of her general anatomy itself".

111. Dr Sansum agreed that, in her record of examination, she tried to record everything relevant to guiding her examination and verbatim where possible. She signified verbatim records by using quotation marks. She was then taken to the history she took.

"Tom asked to come over".
He "grabbed me".
He was "kissing me".
He "wanted to go straight to the bedroom, we went".
"I said "no".
"He kept going".
"I had to strangle him and kick him off".
"He grabbed me again".
"I kicked him and he got up".
"He tried to get his penis in my vagina, it just got in".

113. She also noted in her notes that JA specifically told her that Mr Carney's fingers had penetrated her vagina. This was a result of direct questioning. She also said that JA did not give her any indication of consent. She ascertained, as a result of direct questioning, that Mr Carney's mouth came into contact with JA's vagina.

114. Dr Sansum noted that JA used tampons. She said that a tampon would be a blunt object that could exert blunt force. She had found that JA was not menstruating.

115. Dr Sansum also noted that JA told her that she had not been sexually active. Dr Sansum acknowledged that injuries can occur with consensual intercourse.

116. Dr Sansum recorded that JA told her Mr Carney had threatened her that if she told anyone he would put her pictures on the internet.

117. She had not asked or recorded whether there were multiple penetrations because that was not necessary for forensic medical purposes, but said that there was nothing in the way JA described the incident that indicated multiple penetrations by Mr Carney's penis.

118. She also noted that JA did not complain of vaginal pain or injuries. She did not record any tenderness on the genital examination. She did not observe any bruises.

119. Mr Carney gave evidence. He agreed that he went to JA's house on 26 July 2012; he said it was at her invitation on Facebook when she told him that her mother was out.

120. He agreed that they had been texting each other for a month and said that the texts "became of an increasing[ly] sexual nature". He also said that, as well, JA asked him for favours, buying credit for her phone, buying her cigarettes and buying her clothing.

122. He said frankly that when he went to her house on 26 July 2012, his intentions "were to possibly engage in sexual intercourse with her", which he saw as a possibility.

123. He said that, when he arrived, JA opened the door and took him to her bedroom, saying, "Come into my bedroom". She led him there. He said they then sat down and they started kissing. JA took her jumper off, leaving her bra and her track pants and underwear on, and he took his shirt off. They continued kissing. She had her arms around him and he was moving his hands over her body, feeling her breasts, and running his hand down her leg and generally over her body.

124. He said he then put his hand down her track pants and underneath her underwear and inserted his finger into her vagina. He said she was "a bit tentative about it at first" and he was not sure that she was enjoying it.

125. He said that, after a minute or so, JA asked him to stop and he did so. He asked her if she was okay and she said that she did not know. He said he then told her that it probably was not a good idea to do what they were doing and he got his clothes and left. He said it did not feel right because JA was so young, under age, and he was an adult.

126. He denied taking any photographs of JA that night. He denied that he exposed his penis that night or put it into her vagina. He did not threaten her in any way, including that he would put pictures of JA on the web.

127. In cross-examination, he agreed that he wanted sexual intimacy with JA when he went to her house on 26 July 2012 and he said he was not thinking "straight".

128. He agreed that he and JA had previously exchanged text messages and naked photographs of each other. He agreed that seeing JA naked had aroused him and made him want to have sex with her. He agreed that JA had told him she did not have feelings for him and it was because of their age difference.

129. He also agreed that he was upset when JA had told Ms Moran about some of their text message exchanges. He agreed that Ms Moran had told him to stop messaging JA but that he nevertheless continued.

130. He further agreed that he knew that having the text exchanges he was having with JA was wrong, that having the naked photos of her was illegal and yet he continued. He agreed that he asked her to have sex with him at one time, saying he wanted it "just once".

131. He agreed that it made him slightly annoyed that JA said she was interested in him and then said she was not interested in him. He also agreed that he was receiving conflicting messages when she had complained to Ms Moran about him and then initiated further contact.

132. He agreed that he wanted to have sex with her, though he knew that this would be wrong. He also agreed that he effectively bartered with her as to the sexual favours he would get for providing credit for her phone.

133. Mr Carney was taken to a number of the text message exchanges, especially those with a sexual content and he admitted to sending and receiving them and that they showed he had a sexual interest in JA and included an attempt to get her to agree to have sex with him.

134. He was then taken to the evening of 26 July 2012. He agreed that he arranged to go to JA's place when she had told him that her mother was out. He denied that when he arrived they started kissing but said they went to the bedroom where they got on the bed. He said that she had led him there. He said the kissing started after she had taken her jumper off and he began feeling her body, including her breasts, though she still had her bra on.

135. He agreed that he digitally penetrated JA and said he was focused on the front of her vagina around the clitoris and not the back of her vagina.

136. He also agreed that when he first spoke to police, he gave a different version of what had occurred to that given in evidence before me.

137. The following was what he told police on 9 August 2012:

Q: So tell me about that night exactly when you went around?

A: Um, I went around and I was there. We went into her room. I said, "Are you sure you want to do stuff like this?" And she's just, like, "Yeah, yeah," like, really nervous and that sort of thing ... And I was, like, "Okay," Um, we started making out and, like, it started to go a little bit further, but I was, like - I just - I just stopped and said, "No. This is wrong. I shouldn't be doing this." And I said, "I'm out of here," and got up and left.

Q: Okay. What do you mean when you say "making out"?

A: Like, kissing, feeling each other up.

Q: Again, what do you mean by "feeling each other up"?

A: Ah running my hand over her body.

Q: Whereabouts on her body?

A: On her breasts and down her legs.

Q: And what were you both wearing at the time that this happened?

A: Um, I was wearing track-pants, a shirt and my shoes. She was wearing a jumper, pyjama bottoms, um, I don't remember if she had shoes on or not.

Q: And at any point did either of you take off your clothes?

A: Um, yeah. She started to take her jumper off, and then that's when I said, "No. Look, this is getting too far." So she took her jumper off, exposing herself and her bra. And, yeah, I just stopped, saying, "No, I can't do this. This is wrong."

Q: Why did you think it was wrong?

A: Well, because she was fifteen and I'm twenty and it's just not right.

138. In cross-examination, he agreed that he did not tell the police that he had digitally penetrated JA. He accepted that the version he told police was different in some respects to what he said in evidence to me. He denied being untruthful to police or downplaying his role. He said that the police had arrived first thing in the morning and had awoken him. He said he was not alert.

139. He agreed that he thought that JA may be willing to have sex with him on 26 July 2012 and that was why he had visited her. He agreed that he got a sense from her text messages that she was "a bit hot and cold".

140. He also agreed that there were other differences between what he told police and the evidence he gave before me, such as that, to police, he said the digital penetration occurred when they were lying down and in evidence he said it happened while they were sitting up.

141. He denied JA's version of events that they had both undressed or that he saw her naked or that she saw his penis. He denied trying to insert his penis into her vagina or of taking a photo of her on the night. He denied that JA tried to fight him off.

142. He agreed that, when he saw the text message exchanges in the prosecution brief of evidence, his "heart ... sunk ... [s]omewhat"; he agreed they showed clearly his expressions of sexual interest in JA. He also saw the DNA Report which showed a DNA profile matching his DNA found inside her vagina.

143. He rejected the notion that he "came up with" the version that he put his fingers in JA's vagina to explain the presence of the DNA and said, "It would explain it because it happened".

144. In re-examination, Mr Carney was taken to the following passage in his interview with police where he said as follows:

I went around and I was there. We went into her room. I said "Are you sure you want to do stuff like this?" And she's just like, 'Yeah, yeah,' like, really nervous and that sort of thing. ... [a]nd I was, like, "Okay." Um, we started making out and, like, it started to go a little bit further, but I was, like - I just - I just stopped and said, 'No. This is wrong. I shouldn't be doing this." And I said, 'I'm out of here,' and got up and left.

145. He was asked about what he meant when he said "it started going a little bit further" and he said it referred to the digital penetration.

146. In addition to the oral evidence summarised above, I received the following exhibits from the Crown which, where relevant, have been referred to in the summary of the appropriate evidence:

A. Medical Evidence Record of examination of JA on 28 July 2012.

B. Medico-Legal Report of Dr Catherine Sansum dated 4 October 2012.

C. Transcript and DVD of Evidence-in-Chief Interview with JA on 2 August 2012.

D. Transcript of conversation between Detective Senior Constable Peter Maguire and Mr Carney on 9 August 2012.

E. Photos of text messages on the mobile phone of JA.

F. Photos of text messages on the mobile phone of Mr Carney.

G. Report of AFP Forensic Examination of Items Relating to an Alleged Sexual Assault.

148. As Gleeson CJ, Gaudron, Hayne and Callinan JJ said in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 274; [1]:

The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined.

149. The approach to fact finding has been considered over time in a number of decisions, especially in the High Court. The principles may be summarised as follows:

1. It is for the sentencing court to determine the sentence and, therefore, the culpability of an offender which must be based on the facts presented to the court: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 9-13; [4]- [14]; R v Olbrich at 274; [1]; R v Isaacs (1997) 41 NSWLR 374 at 377-8.

2. An offender who wishes to assert some matter in his or her favour must have a reasonable opportunity of adducing admissible evidence to support such an assertion: R v McPherson [2011] SASCFC 105 at [21].

3. An offender who wishes to challenge some facts alleged by the prosecution must have a reasonable opportunity to cross-examine any prosecution witnesses relied upon to prove those facts: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at 339; [39]; R v SWC [2007] VSCA 201; (2007) 175 A Crim R 71 at 74; [12]- [15]; Le v The Queen [2007] NSWCCA 330 at [21]- [28], [33].

4. Where the prosecution does not accept the evidence of a witness called by an offender, it should put to that witness the prosecution's alternate view so that the witness may respond and the court will have the benefit of that response: MWJ v The Queen at 339; [39]; R v SWC at 74; [12]-[15]; O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [27], [31].

5. Where evidence is not subject to cross-examination the court should, prima facie, accept the evidence but it is not bound to do so, though fairness requires that, in that case, the court should indicate that it is not prepared to accept the evidence or act on it so that the party may have an opportunity to adduce further evidence or address the court about it: R v O'Neill (1979) 2 NSWLR 582 at 597; R v Falls [2004] NSWCCA 335 at [34]- [35].

6. There is no principle of law that a court must sentence an offender upon a view of the facts most favourable to the offender consistent with the jury's verdict or the statement of facts tendered on a plea of guilty: Cheung v The Queen at 11; [9].

7. Similarly, where a court is not satisfied of a version of the facts adduced by or on behalf of an offender it is not obliged to accept it unless the prosecution disproves it beyond reasonable doubt: Nash v Haas [1972] TASStRp 1; [1972] Tas SR 1 at 2; R v Olbrich at 280; [24].

8. An offender who wishes to rely on a matter of mitigation bears more than an evidentiary onus and must, if challenged, prove the matter on the balance of probabilities: R v Storey (1996) 9 A Crim R 519 at 530; R v Olbrich at 281; [27].

9. The prosecution does not have to prove every fact upon which the sentence is based beyond reasonable doubt, but must prove beyond reasonable doubt any matters adverse to the offender or which may aggravate the culpability of the offender: R v Storey at 530; R v Olbrich at 281; [27].

10. A court may not be able to resolve every fact that is disputed, just as it may not be able to ascertain all matters relevant to the circumstances of the offence or personal to the offender, but an absence of persuasion of a fact of mitigation is not the equivalent of persuasion of the opposite fact of aggravation: R v Olbrich at 278; [16]; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 636; [19], 638; [24].

151. It was expressly accepted by Mr S Gill, who appeared for Mr Carney, that the prosecution allegations in respect of the first charge, of using an electronic means to suggest to JA that she take part in an act of a sexual nature, were made out and not in contest. For this reason, I have not canvassed them above.

152. As noted above, that is an offence contrary to s 66(1) of the Crimes Act. I considered this section in R v DM [2010] ACTSC 137. I there held (at [213]-[215]) that for a person to ask a young girl to take a photograph of her naked is an act of indecency. I see no reason to depart from that finding.

153. In this case, there is also the fact that the text exchanges clearly encouraged JA to engage in sexual activity with Mr Carney. I have referred to such exchanges above (at [4], [72] and [73]).

154. The following is the description of Count 1 in the Case Statement, thereby as particularised by the prosecution, and I am satisfied that these facts are established. For convenience, I set the facts out as relevantly alleged:

On about 7 or 8 July 2012 the accused and the complainant were sending each other text messages by mobile telephone. In these text messages the complainant told the accused that she was 15 years old. She also confirmed with the accused that he was 20 years old. The accused asked the complainant about her sexual experience, including 'how far [she had] gone with a guy?' and whether she would have a relationship with him. The accused also asked her to send him some naked pictures of herself.

A short time later the complainant took photos of her breasts and vagina with her mobile telephone and sent these to the accused's mobile telephone. The accused also sent photos of his penis to the complainant's mobile telephone.

On 19 July 2012 the complainant told her youth group leader, Rachael Moran, that the accused was 'pestering' her and 'kept asking her for sexual stuff'. She also showed Ms Moran some of the text messages between herself and the accused. Ms Moran told her to stop text messaging the accused. The following day Ms Moran also spoke with the accused and warned him that the complainant was a minor and to stop messaging her.

However, the accused and complainant continued to send each other text messages over the next several days. In these text messages the accused asked the complainant to meet with him so that they could kiss and 'make out'. In some of the text messages the accused tried to bargain for sex:

In one such message:

The accused wrote, "What do I get if I give you my credit card?" ...

The complainant wrote, "... How much?"

The accused wrote, "How much you willing?' ... "Sex".

The complainant wrote, "Wow. No.."

The accused wrote, "Fine blowjob and that's as low as I'm going."

155. I have, of course, seen other text exchanges in the exhibits, being the photos of text messages from the mobile phones of JA and Mr Carney, a number of which discuss sexual matters between them.

156. The real issue is as to the second count and, in that case, whether the sexual intercourse charged was constituted by penetration of JA's vagina by Mr Carney's penis, as asserted by the prosecution, or by his finger, as he asserted. There are also some contextual differences, in particular, whether JA asked him to stop yet he continued and she had to fight him off or whether he desisted of his own accord.

157. As would be expected, the principal evidence is from the participants, JA and Mr Carney, and the case largely depends upon the evidence to be accepted. It is, of course, not a matter of which is to be believed; the court does not simply make a choice between the two versions. The prosecution must prove its case. In accordance with the principles of fact finding in sentencing matters, to which I have already referred (at [149]), any circumstances of aggravation must be proved beyond reasonable doubt.

158. The prosecution rely on JA's evidence. It is said that there is a strong level of consistency between it and the narrative JA gave to other witnesses. Centrally, that is correct.

159. Her first disclosure was to Ms Moran. That was very brief. She referred to Mr Carney and her "getting it on" and she asked him to stop, "Then he raped me". This does not carry the matter much further, though there is a consistency of the request to stop and Mr Carney continuing with the activity.

160. JA next told her mother. To her, the description was somewhat more detailed. Again she described the incident as being "raped". JA told her mother that Mr Carney started kissing at the front door and then Mr Carney and JA "ended up in the bedroom" trying to have sex and, when it hurt her, she said no and Mr Carney continued. JA told her mother that he started to hurt her and she said no. She said she then fought him off by choking and kicking, but that he threatened her with photos taken on that night. Again, there is some consistency with elements of the events as told by JA in an early complaint by her.

161. The next version was given to Dr Sansum. Here there were similar details, namely that Mr Carney grabbed JA and was kissing her before going to the bedroom. JA told Dr Sansum that, during the sexual activity, she said "No" but that Mr Carney "kept going" and she had to strangle him and kick him to get him off but he grabbed her again and she kicked him and he got up. She said that he had "just got [his penis] in". She told Dr Sansum, however, that there had also been digital penetration and that Mr Carney's mouth had come in contact with her vagina. She told her that Mr Carney had tried to hold her down by the shoulders. She told her of the threat to put pictures of her up on the Internet. There is, again, a degree of consistency with the earlier version but with much more detail, as one would expect from the particular circumstances of such a medical examination, though not included in earlier versions. There was consistency with the central events JA described.

162. Also relevant was that Dr Sansum found an injury which she said that JA may have felt as a sharp pain at the time. This is, to some extent, consistent with her statement of pain to her mother, though it was a brief description to her mother.

163. The next account was given a few days later to police. Again, the central events as given were consistent with earlier versions. On this occasion, however, there were some significant differences. There was no reference to digital penetration and no reference to Mr Carney's mouth coming in contact with her vagina. In particular, as she told it, there was no occasion in the narrative where this could have happened. The police interview was extensive and, while the questions were, for the most part, open ended, there was opportunity for these matters to be mentioned, which had been referred to just five days earlier.

164. The account she gave in court, was, of course, initially that which she gave to police (s 40F Evidence (Miscellaneous Provisions) Act). There was some brief additional evidence adduced. In cross-examination, however, she made some statements that were of some concern.

165. She described Mr Carney's penis as, at all times, "floppy". Regrettably the prosecution did not have her elaborate on this. At first blush, it seems inconsistent with the evidence that, in cross examination, the prosecution did adduce from Mr Carney, namely that he was aroused on that evening. Applying common sense, it makes it difficult, though not impossible, for him to be much aroused with still a "floppy" penis if that means flaccid or limp. It is also difficult to see how it would be likely that a floppy penis could be in any sense introduced into a young girl's vagina. It is, as Dr Sansum said, possible, but that is a very low threshold.

166. In addition, she told Dr Sansum that the penis "just got in" which is not consistent, it seems to me, with the location of the injury described by Dr Sansum, nor with JA's description of how far it penetrated (at [45] above).

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