R v CC

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - offences against the person - sexual offences - good prospects for rehabilitation - plea of guilty - specific deterrence - sentences imposed for similar offences - degree of concurrency and accumulation - term of imprisonment imposed.

R v CC [2016] ACTSC 43

1. CC, you have pleaded guilty to one count of sexual intercourse with a young person under the age of 16 years.

2. An Agreed Statement of Facts has been placed before me and I will not now recite the facts. It is sufficient to note that the offence was committed in 2006 or 2007 when the victim was 14 years of age. At that time you were in a relationship with the victim's sister. The victim attended your premises on the particular occasion in question and you engaged in sexual intercourse with her by digitally penetrating her vagina. The maximum penalty for this offence is 14 years imprisonment.

3. You were originally charged with this offence in the Magistrates Court on 1 September 2015. You entered a plea of not guilty and you were committed for trial to this Court on 3 November 2015. The trial was listed to commence in this Court on 7 June 2016. You entered a plea of guilty to this charge on 19 May 2016, the day listed for the hearing of a tendency application by the Crown.

4. I note that in February 2016, I sentenced you to an aggregate term of imprisonment of five years and nine months, commencing on 17 July 2015 and expiring on 26 April 2021 for offences of incest and also an offence of committing an act of indecency on a young person. The victim with respect to those matters was your stepchild. I imposed a nonparole period of two years and eleven months, commencing on 17 July 2015 and expiring on 16 June 2018.

5. I accept that the present offence was opportunistic. It was not planned. You were, however, 25 or 26 years of age at the time that you committed this offence, much older than the victim, who was only 14 years of age. It is also of significance in determining the objective seriousness of this offence to recall that the victim was the sister of your partner. The only reason that you had access to the victim was because of the trust which had been reposed in you by the victim and also by her family as the victim's sister's partner. Therefore, this offence involved a significant breach of trust.

6. The offence occurred at the home which was shared by yourself and the victim's sister. A home in which she was entitled to feel, and also to be, safe. It has been accepted by the Crown, and I think correctly so, that this is not within the range of the most serious offences of sexual intercourse with a person under the age of 16 years. It is, nevertheless, still a serious offence.

7. I take into account the contents of the victim impact statement which was read to the court. That statement speaks of the ongoing impact of your offending on the victim. Unsurprisingly, this offence has affected her ongoing relationships with men and also within her family. It continues to affect her to this day.

8. When I sentenced you in February this year, I spoke at some length of your subjective features. I adopt without here repeating what I said at that time: see R v CC [2016] ACTSC 43. At that time I formed the opinion that you had good prospects for rehabilitation. I note that an amount of material has now been put before me concerning your activities in custody since you were sentenced in February this year. You have continued to undertake programs in the Alexander Maconochie Centre directed towards rehabilitation. You are also prepared to undertake the Adult Sex Offender Program when a position becomes available in that program. I note that you continue to have the support of your parents. All of those are factors which speak of your continuing good prospects for rehabilitation.

9. Having said that, offences such as these call for a significant punishment. The most important sentencing considerations for offences of this nature are deterrence and punishment. In particular, there is a need for general deterrence with respect to this type of offending. Courts must make it known that those who commit this type of offence will be subject to real punishment. There is also a need for specific deterrence in this case.

10. In my opinion, nothing less than a sentence of fulltime imprisonment would be appropriate in sentencing you with respect to this matter. The offences for which I sentenced you in February this year occurred in 2015. The offence for which I am now sentencing you, occurred in 2006 or 2007.

11. The victims in each case were different, so that it is clear that we are dealing with entirely separate instances of offending. I am, however, obliged when sentencing you today to endeavour to impose a sentence such that the aggregate term of imprisonment that you must serve would be that which would have been imposed if all offences had been dealt with before me in February this year.

12. The circumstances to which I have referred, that is that this was an entirely separate instance of offending and involved a different victim, calls for a significant degree of accumulation between the sentences which I imposed in February this year and the present sentence. However, the principle of totality, which has been acknowledged by both your counsel and also counsel for the Crown, does require some degree of concurrency.

13. I have also made reference to your plea of guilty. Whilst it was not a plea of guilty at the earliest opportunity, I do accept that it demonstrates a degree of remorse and also had significant utilitarian value. It relieved the victim of the necessity to give evidence in any trial which, in my opinion, is a very significant matter.

14. I will record a conviction and you will be sentenced to two years and six months imprisonment, reduced from three years imprisonment in order to reflect your plea of guilty. This sentence will commence on 17 January 2020 and expire on 16 July 2022. I will reset the non-parole period to be one of four years, commencing on 17 July 2015 and expiring on 16 July 2019.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns