R v Carney

5. The sentence be suspended for two years from 27 February 2014.

6. Mr Carney sign an undertaking to comply with the Offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) a probation condition that he be on probation subject to the supervision of the Director-General or her delegate for two years or such shorter period as the person delegated to supervise him considers appropriate; and

(b) a condition that he submit himself for assessment for admission to the ACT Corrective Services Adult Sex Offenders Program and, if assessed as suitable and admitted to the program, participate in and complete the program.

1. Thomas Earl Carney has pleaded guilty to two serious sexual offences with a girl under the age of sixteen years.

2. The first is that, between 6 and 27 July 2012, he used an electronic means to suggest to a young person that she take part in an act of a sexual nature. This is an offence by virtue of s 66(1) of the Crimes Act 1900 (ACT) (Crimes Act), which makes the offence punishable by a fine of 700 penalty units (that is a fine of $7,700), or imprisonment for seven years or both.

3. The second is that, on 26 July 2012, he engaged in sexual intercourse with a young person. This offence is prohibited by s 55(2) of the Crimes Act and is punishable by imprisonment for fourteen years. In these charges, "young person" means a person who is under the age of sixteen years. The community has a special responsibility to protect these people, for it is accepted, as was said in Clarkson v The Queen (2011) 32 VR 361 at 368; [26]:

Parliament has decided that those under sixteen cannot meaningfully consent to sexual activity even if subjectively attracted to the idea of participating in such activity.

4. The Court there referred to the emotional and social harm which a girl may suffer if she has sexual relations at an age when she is not mature enough to cope with the consequences of a sexual relationship. The Court described, at some length, the effects that such harms can have on the community also as a result. The maximum penalties which Parliament has provided show the courts the seriousness with which the offences are to be considered. See AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 160; [130]).

5. The facts of the first offence are not in dispute. They are set out in reasons I gave when determining a dispute as to the facts of the second offence. I have set them out in R v Carney [2013] ACTSC 266 at [154] and I take them into account. Essentially, Mr Carney sent text messages to the young person which were of a sexual nature and which invited and then encouraged her to engage in sexual activities with him. The Crown described the exchanges as involving Mr Carney "pestering" the young person for sex and that is not a bad description.

6. As to the second offence, Mr Carney acknowledged that he had engaged in sexual intercourse with the young person but disputed the way in which it happened. In R v Carney, I made findings essentially agreeing with the facts as asserted by Mr Carney, namely that he digitally penetrated the young person when visiting her house but stopped when she told him to stop. I take into account the findings that I made in that decision.

7. Mr Carney was born twenty-one years ago and raised in Canberra, the eldest of two children. He had a stable and loving home life. He has had a number of girlfriends with whom he appears to have had satisfactory relationships.

8. Mr Carney completed Year 12 in 2011. His school life was affected by attention deficit hyperactivity disorder (ADHD). This led him into contact with his school's sergeant who managed the discipline system at the school. Mr Carney was suspended twice for misbehaviour. Once identified as suffering from ADHD, Mr Carney, with the help of that gentleman, managed his behaviour such that it became manageable and responded to the school sergeant's mentoring. One of his problems was that he would often misread a situation and respond inappropriately. Mr Carney played sport at school and was seen as a "boy's boy". The school sergeant was Mr Carney's rugby coach in 2008.

9. On leaving school, Mr Carney attended university for one semester but left to start work. It appears that this was mainly part-time in the hospitality or food and alcohol related sectors. He plans to return to university in the future. He is currently employed and lives at home.

10. I had no reports of any drug or alcohol issues involving Mr Carney. Mr Carney has no prior convictions for criminal offences. A character reference was tendered. It came from his school sergeant who had obviously become a close friend of Mr Carney's family. In addition to providing mentoring through the school, he has clearly provided advice to Mr Carney and his family since Mr Carney left school.

11. The school sergeant also gave oral evidence before me and was cross-examined. He expressed the opinion that Mr Carney had developed into a mature, well balanced individual, developing strong personal qualities and character. He was a pleasant young man who was willing to help out wherever possible and had grown in confidence since leaving school. The school sergeant had discussed the offences at length.

12. It was clear during the cross-examination by the Crown that Mr Carney had not disclosed all the facts on which the Crown relied. For example, he had not explained the details of the text interactions, nor that he had asked for a photo of the complainant naked. There may be a number of explanations for this. An obvious one is of embarrassment. I note also that there were some three hundred and ninety-one screens of text exhibited to me and I doubt whether anyone could remember them all. The school sergeant did express concern at the content of some selected portions to which his attention was drawn but did not change his opinion as expressed in his evidence. He considered the behaviour was out of character. Mr Carney has the support of his parents which is an important factor.

13. The Pre-Sentence Report disclosed that he acknowledged and accepted responsibility for the offences. They were committed shortly before his twentieth birthday. He showed insight into the impact of his offending and expressed empathy for the complainant. He had some understanding of how she would now feel, though I did not have a victim impact statement. The author of the Pre-Sentence Report stated that she felt the factors contributing to his behaviour included confusion and lack of sexual knowledge. Mr Carney said that he thought that the complainant may have had some willingness to participate in sexual activity at some level.

14. In her evidence before me during the phases of the sentencing proceedings, it was clear that the complainant was somewhat ambivalent about sexual activity at the time of the events but did clearly not share the expectations of Mr Carney. She was also, as shown by the text messages, seeking favours from Mr Carney which he had clearly misinterpreted as a level of sexual interest that she ultimately did not have. This relates back, of course, to the assessment by the school sergeant of his capacity to read circumstances. This is relevant to know that Mr Carney can misread situations and is consistent with the assessment of the author of the Pre-Sentence Report.

15. Mr Carney was assessed as at a low risk of reoffending so far as what is called quite general criminality is concerned. He has, however, been assessed as at a medium to high risk of reoffending for sexual offences. Regrettably, the author of the Pre-Sentence Report could not inform me of the factors that led to this assessment so that they could be appropriately addressed in the sentence I must impose. It may be that the issue would be addressed by Mr Carney participating in the Corrective Services Adult Sex Offender Program if found suitable. That is, unfortunately, the only assistance I had about that matter.

16. Both offences are serious offences. As Gallop J said in the Federal Court in R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 186, there is a single voice in the community in the case of sex offences which is one of abhorrence. While that is essentially so in relation to children, the relative closeness in age of Mr Carney and the complainant removes this from the more predatory examples of such offences. Nevertheless, they remain objectively serious. Mr Carney knew that the complainant was fifteen years old and he knew that it was an offence to have sexual intercourse with a person under sixteen. She was, of course, only one month away from her sixteenth birthday but that is naturally no defence.

17. It is relevant that the penetration was digital rather than penile. The latter raises particular risks of pregnancy and infection which the former does not. Mr S Gill, who appeared for Mr Carney submitted that I would take into account that the complainant was no longer a virgin since it appeared that she had had prior sexual experience. Mr T Hickey, who appeared for the Crown, disputed the relevance. I agree that the approach of the courts to sexual offences with young people makes it clear that the sexual experience of the complainant does not of itself mitigate the offence. It may, in appropriate cases, be relevant to the actual effect on the complainant in that a complainant with prior experience may suffer less trauma than one who has no such experience but that cannot be assumed. Repeated violations of the prohibition may in some cases exacerbate the trauma. As I had no victim impact statement, I am unable to form a view about this factor.

18. It was accepted that Mr Carney in his text messages had been persistent in his expressed wish to have sex with the complainant. It was described as "quite pestering" and both counsel seem to accept that as an accurate description.

19. It is relevant, and I accept, that when the complainant told Mr Carney to stop the digital penetration, he did so. It is clear that Mr Carney engaged in the criminal conduct for his own sexual gratification though it is clear that it was, while to that extent predatory, within the context of a relationship that he had with the complainant.

20. I take into account Mr Carney's plea of guilty. It was not made at the earliest opportunity and, indeed, it was made less than a week prior to the trial. Mr Carney was originally charged with five offences. He has pleaded guilty only to two and although it has not yet been done, I expect that a notice declining to proceed will be filed in respect of the remaining three counts. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45]). It is accepted that the utilitarian value of a plea of guilty represents the advantage the plea makes to the administration of justice. The timing of the plea is in these circumstances a most significant factor. It is also relevant to an assessment of the culpability of the offender. Thus, it has been held in New South Wales that the reason why a plea is delayed is not relevant because if delayed, the utilitarian value is reduced, as held in R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510. Nevertheless, in this jurisdiction, the Court of Appeal in Coggan v The Queen [2013] ACTCA 49 at [14]- [21] has accepted that even a late plea has a utilitarian value. The fact in this case that the plea resulted in a reduction of the number of charges to be dealt with and did remove the necessity of a trial is relevant. I am satisfied that a modest but discernible discount for the plea of guilty is appropriate.

21. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2006 (ACT).

22. I have described the offences and I note that they are objectively serious. The first offence is perhaps a more serious version of the offence than the second is of that offence. While I am not satisfied that they represent one course of conduct, they are closely related, for the second is what the first was attempting to bring to pass.

23. I have also set out above Mr Carney's personal circumstances, his age, antecedents and character. He has, in general terms, a good character, positively alluded to by his character referee although there were some issues with regard to his behaviour at school. So far as I am aware, he has no relevant health issues and, as he is presently unemployed, his financial circumstances are clear.

24. Both counsel referred me to relevant cases. Most recently, the Court of Appeal dismissed an appeal which had challenged the making of a non-conviction order for an offence of engaging in sexual intercourse with a young person. In that case, R v CV [2013] ACTCA 22, however, the circumstances were relevantly different. The respondent offender was himself under the age of eighteen years and though the age of the complainant was much younger than in this case, the age difference was three years and four years in that case compared to three years here. The complainant there initially lied about her age and was the initiator of the sexual encounters to which she clearly consented. Thus, there were significant extenuating circumstances not present in this case.

25. There is also an element here that was not present there in the use of text messages to suggest, indeed in this case encourage and urge the complainant to have sexual intercourse with him.

26. I was referred to R v SA (Unreported, ACT Supreme Court, Burns J, 7 June 2013). That case however, had a number of more serious aspects. The complainant was younger than the complainant here. There were a number of acts of intercourse, including penile/vaginal intercourse. The offender expressed no remorse for or insight into the offending behaviour and the victim impact statement showed particular psychological and emotional consequences for the complainant. Both the Crown and Mr Gill referred me to this decision.

27. In R v Bye (Unreported, ACT Supreme Court, Refshauge J, 3 July 2012), the offender committed a large number of offences and, more seriously than in this case, offered and paid money to the complainants for the sexual favours though the texts between Mr Carney and the complainant in this case made suggestions to that effect. Mr Gill referred to this decision.

28. In R v DM (Unreported, ACT Supreme Court, Refshauge J, 14 February 2011), there were a large number of offences. The sexual intercourse involved penile/vaginal intercourse and although the offender was a young person himself, there was a significant element of breach of trust. The Crown referred me to this decision.

29. In R v Stevenson (Unreported, ACT Supreme Court, Gray J, 30 September 2009), it was impossible from the remarks to know the details of the offending behaviour although the offences appeared to be quite similar. The complainant in that case was younger than the complainant here. The Crown referred me to that decision.

30. In R v Marsden (Unreported, ACT Supreme Court, Crispin J, 30 July 2007), the age discrepancy was over ten years, but the complainant was less than a month away from her sixteenth birthday. It is curious that the Crown relied on this decision when his Honour expressly said:

It should not be thought that the imposition of a sentence of this kind [which his Honour imposed, namely a fully suspended sentence] involves some precedent which may be relied upon by others who commit similar offences in the future.

31. The issue also arose as to the way in which I could take into account the fact that a conviction will result in Mr Carney being required to register as a child sex offender under the Crimes (Child Sex Offenders) Act 2005. The Crown submitted that, as in R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268, I should not regard such registration as extracurial punishment, thus making it irrelevant to sentence. That cannot stand, however, for the Court of Appeal has held differently. While it is unclear whether the court in R v CV actually decided that such registration is extracurial punishment, though it did cite with approval a passage from the judgment of Simpson J with whom McClellan CJ at Common Law and James J agreed in TMTW v The Queen [2008] NSWCCA 50 at [51] where her Honour said "the regime could properly qualify for the description of extracurial punishment".

32. Nevertheless, the Court held that it was not irrelevant to sentencing for such offences. The case was also used to suggest that given the consequence of registration, I should make a non-conviction order which would not require Mr Carney to register.

33. I do not consider that I can do so because it does not seem to me that the conditions for exercise of that power exist here. I consider that the offences are serious. In themselves, they are not such as never to permit the exercise of a power under s 17 of the Crimes (Sentencing) Act to be exercised but they are not such as to warrant that exercise of itself without more.

34. In addition, I do not consider that there were extenuating circumstances such as were present in R v CV that would justify exercising the power.

35. Finally, I do not consider that Mr Carney's personal circumstances require the exercise of such a power. In particular, I was not referred to any particular consequences to Mr Carney that would require the exercise of the power. I note that Mr Carney has been assessed as suitable for periodic detention and as not suitable for a community service work condition to a good behaviour order.

1. I convict you of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012.

2. I sentence you to three months' imprisonment to commence today. Had you not pleaded guilty, I would have sentenced you to fourteen weeks' imprisonment.

3. I convict you of engaging in sexual intercourse with a young person on 26 July 2012.

4. I sentence you to six months' imprisonment to commence on 27 April 2014. That is to be cumulative as to two months on the first sentence. Had you not pleaded guilty, I would have sentenced you to seven months' imprisonment cumulative as to three months on the first sentence.

5. That is a total of eight months' imprisonment. I suspend that sentence today for two years.

6. I require that you sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) a probation condition that you be on probation subject to the supervision of the Director-General or their delegate for two years or such shorter period as the person delegated to supervise you considers appropriate; and

(b) a condition that you submit yourself for assessment for admission to the ACT Corrective Services Adult Sex Offenders Program and, if assessed as suitable and admitted to the program, participate in and complete the program.

37. [His Honour then spoke directly to Mr Carney]

38. Mr Carney, what I have said is that I do not consider a non-conviction order is appropriate so I have sentenced you to terms of imprisonment, the total term of imprisonment being eight months, to take into account the seriousness of the offence but also your personal circumstances. In relying on that, also, I have suspended the sentence so I do not require you to spend any time in fulltime custody, but I have made a condition called a good behaviour order which requires you for the next two years to be under certain conditions. One of those conditions is that you do not commit any further offences punishable by imprisonment and that includes things like drink driving. I am not just talking about sexual offences, but any offences involving punishment by imprisonment. If you do commit such offences, you can be brought back before me and I can sentence you to prison and take other steps that are necessary. Quite frankly, I do not expect that that will happen and I expect that this has been a lesson to you and that the courts will not see you again but you need to understand what the consequences are.

39. There are two express conditions. One is of supervision and you will be appointed a probation officer who will assist you in making sure that your life continues in the right way, a bit like your school sergeant was, although no doubt you will still remain in contact with him and get assistance from him. That person can be useful. He or she is someone independent and if things get tough, they have resources and can point you in directions where you may be able to sort out your problems and get some assistance. That is for two years, but the probation officer can reduce it for a shorter period of time. I suspect it will remain in place for the whole of the period of the Sex Offenders Program if you are admitted to that program.

40. That is the second condition, that you undertake the Sex Offenders Program. You have been assessed as at a risk of re-offending. The Sex Offenders Program will address that issue and hopefully there will be no problems for you in those circumstances. I hope this has been a lesson to you to understand that you cannot break the law with impunity. I have no doubt that if you take that lesson to heart, the criminal courts will not see you again and I hope that is the position.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions