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[2020] ACTSC 282
General information, not legal advice.
Supreme Court of the ACT
2020-10-13
Mossop J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v CN
Citation: [2020] ACTSC 282
Hearing Date: 13 October 2020
Decision Date: 13 October 2020
Before: Mossop J
Decision: See [45]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a person under the age of 16 years – digital penetration occurred while victim was sleeping – opportunistic offending – offender and victim of similar ages – lower range of objective seriousness – good prospects of rehabilitation – counselling recommended to address offender’s limited insight into his offending – community service work not currently available for young offenders – good behaviour order imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by the offender not to be included on the child sex offender register – offender does not pose a risk to the lives or sexual safety of people in the community – offender and victim of similar ages – no evidence of inappropriate sexual inclination or involvement with children – inappropriate to include the offender on the register in the circumstances of the case
Legislation Cited: Crimes Act 1900 (ACT), s 55 Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133L, 133U Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Child Sex Offenders) Act 2005 (ACT), ss 8, 9, 10, 89 Criminal Code 2002 (ACT), s 712A Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74
Cases Cited: OH v Driessen (No 2) [2015] ACTSC 354 R v CC [2016] ACTSC 324 R v CV [2013] ACTCA 22 R v EO [2017] ACTSC 138 R v Jones [2020] ACTSC 92 R v Smith (a pseudonym) (No 2) [2020] ACTSC 260
Parties: The Queen (Crown) CN (Offender)
Representation: Counsel S Jerome (Crown) J Sabharwal (Offender) Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number: SCC 300 of 2019
MOSSOP J:
Introduction
The offender has pleaded guilty to one count of sexual intercourse with a person under the age of 16 years (CH2019/701), contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 14 years’ imprisonment.
The identity of the victim and the offender are protected by s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and s 712A of the Criminal Code 2002 (ACT). For this reason, the offender will be referred to as CN and the victim will not be identified.
Facts
The facts were agreed and are, in summary, as follows. Both the offender and the victim are young people. At the time of the offending, the offender was 16 years and two months old and the victim was 15 years and 10 months old. The offender and the victim were friends and in the same year at school. They also lived in the same neighbourhood and the offender’s father would sometimes drive the victim to school with the offender and his other children.
On Wednesday, 13 March 2019 the offender’s father drove the victim home from school. Shortly after arriving home, the victim called the offender and asked if she could come to his house. He agreed and the victim walked over between 3:45pm and 4pm.
The offender, his father and three sisters were at the offender’s house. When the victim arrived, she took off her sweatpants, which she had been wearing over drawstring shorts. Around 4:35pm the offender and the victim went into his bedroom. The bedroom door was open. The victim was lying on the offender’s bed, on her side and on top of the covers, and the offender was sitting on a chair next to the bed.
The victim fell asleep after about 20 minutes. She woke between 45 minutes and an hour later. At this point, she was lying on her side with her left leg raised and her back to the chair. Her shirt was up. She felt something uncomfortable in her vagina, which felt like it was all the way inside her vagina. The victim said words to the effect of “What the fuck are you doing?”. She saw the offender quickly move his hand away from her. She turned back towards the chair where the offender had been sitting. She noticed that his shirt was off and the bedroom door was now closed.
The victim gathered her things and left the bedroom. She saw the offender’s father as she was leaving. He said that she looked tired and offered her a coffee. The victim declined. The offender’s father offered to give the victim a lift to school in the morning. She replied “I don’t know. I’ll let you know.” The victim left the offender’s house and arrived home between 6:05pm and 6:07pm.
At approximately 6:09pm the offender sent the victim the following messages on Instagram:
Hey [victim’s name] I just want to say sorry I got carried away, I said on SC [Snapchat] as well [smiling open mouth with cold sweat emoji and worried face emoji] Are you sure I feel really bad, you looked so good but that would not be the right thing to say so sorry again
Victim impact statement
The victim read aloud her victim impact statement in court. The victim’s statement made clear that the offender’s actions have had a serious and ongoing impact upon her. She expressed how, after the offending, she saw the world differently and “no longer saw a future” for herself. She said that she has changed and no longer has hope. She described the fear and betrayal she felt at realising that “someone [she] held so close did something like this to [her]”. She said that she continues to cry about what happened, and that sometimes she stays awake at night so that flashbacks do not come back.
These consequences are consistent with what might be expected from offending of this nature.
Objective seriousness
Subjective circumstances
The subjective circumstances of the offender are set out in two pre-sentence reports dated 2 July and 6 October 2020 and in a “comprehensive risk assessment report” prepared by a clinical psychologist, Dr Danielle Clout.
The offender is currently 17 years old. He is the third of seven children to his parents. He was born in Australia and spent many of his early years moving around regional New South Wales. He moved to Canberra with his family when he was approximately 13 years old, after his parents had separated.
There is a history of domestic and family violence, parental substance misuse and neglect within the offender’s family. The offender reported a close relationship with his father and stated that he is “a great support” for him. However, the offender has a fractured relationship with his mother and does not remember much about her from before the age of eight years old. The offender reported that his mother often used cannabis and that there was “a lot of fighting” between his parents. He has not had contact with his mother in over a year.
His family was subject to action by New South Wales Family and Community Services in 2008 due to concerns about family violence, neglect and parental substance abuse. In 2016, after his parents separated and he had moved to Canberra with his father and siblings, ACT Child and Youth Protection Services (CYPS) took action which resulted in the offender and four of his siblings being placed in foster care and then in the care of their paternal grandmother. A staged restoration subsequently took place and the children were returned to their father’s care in August 2018.
The offender reported that his childhood had been quite stressful, due to having to move around frequently. He said that this had an impact on his ability to make and maintain friendships. He said that he had a close relationship with all of his sisters, but that he has minimal contact with his brother who is incarcerated.
The offender is currently enrolled in Year 11 and intends to complete his Year 12 certificate. His school report states that he has made an effort to “apply himself more”. He described himself as an “average” student and said that concentrating in class is challenging. The comprehensive risk assessment report indicated that the offender’s description of his symptoms was below the threshold for conditions such as Attention-Deficit/Hyperactivity Disorder.
The offender is currently employed part-time at a takeaway food restaurant and reports good relationships with his managers and colleagues. He has worked at the restaurant for two years. He indicated that his managers wanted him to complete training to become a manager but that he was not interested in this and he wants to focus on completing school. The offender also has a second job as a full-time landscaper over the school holidays and on weekends. He has expressed an interest in exploring trades when he completes school.
[The offender’s] present criminogenic risk factors are minimal, in that he attends school on a regular basis, is employed, has positive relations with his father and appears to have a pro-social peer group. It further appears that [the offender] has also changed his disposition on the Statement of Facts and overall incident since the last Pre-Sentence Report, dated 2 July 2020. However, [the offender] continues to demonstrate minimal insight into the charge and the impacts it has had on the victim of the offence.
The offender was assessed as having the capacity to comply with a good behaviour order, including a community service work condition.
The offender has no criminal history.
He has spent no time in custody in relation to the offence.
Plea of guilty
Consideration
The offending involved a brief incident of sexual penetration. Notwithstanding that, the nature of such offending is that it will often have, and has in fact had, longer term consequences for the victim.
In sentencing the offender it is very important to note the statutory directives in ss 133C and 133D of the Crimes (Sentencing) Act 2005 (ACT):
(a) the court “must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7 (1)”: s 133C(1);
(b) the court must have particular regard to the common law principle of individualised justice: s 133C(2);
(c) the court must consider: (i) the young offender’s culpability for the offence having regard to his or her maturity: s 133D(1)(a);
(ii) the young offender’s state of development: s 133D(1)(b);
(iii) the past and present family circumstances of the young offender: s 133D(1)(c).
The prospects of the offender are generally good. The offending conduct demonstrated a degree of immaturity in relation to relationships and sexual matters. Notwithstanding a disrupted upbringing, the offender remains living at home with a supportive family. He is at school and on track to complete Year 12. He has outside employment. He has no other involvement with the law, illicit substances or antisocial associates.
So far as rehabilitation is concerned, the only area which requires some attention is in relation to his understanding of, and attitude towards, relationships with women and appropriate sexual conduct. Those issues are ones in relation to which many young men need assistance but, so far as the offender is concerned, some intervention as part of his sentencing is appropriate. That is particularly so in circumstances where there is evidence that his home environment may not be conducive to an appropriate understanding of such matters.
The Crown referred to a number of comparable cases involving minors who had committed sexual intercourse with a young person or sexual intercourse without consent: R v CV [2013] ACTCA 22, OH v Driessen (No 2) [2015] ACTSC 354, R v CC [2016] ACTSC 324, R v EO [2017] ACTSC 138, R v Smith (a pseudonym) (No 2) [2020] ACTSC 260. Those authorities demonstrate that, at least in cases where the offender has pleaded guilty and demonstrated some remorse in relation to the offending, such offending may be dealt with without a custodial sentence. That is largely because of the particular statutory directives relating to the sentencing of young offenders. In my view, having regard to the pattern of sentencing disclosed by the authorities to which I have been referred, it is appropriate to deal with the offending in a way that does not involve a custodial sentence.
I had considered that a period of community service would be appropriate and had considered that it would be possible do so in a way that did not interfere with the offender’s education: Crimes (Sentencing) Act s 133L(1)(b). However, I was told that the Director-General would have difficulty finding such work, given the COVID-19 pandemic and its policy of not having minors performing such community service work with adult offenders. In those circumstances, the Crown submitted that it was appropriate to increase the period of supervision and that is how I have dealt with the matter, notwithstanding that it increases the extent of leniency afforded to the offender.
I accept the recommendation made by Dr Clout that he would benefit from a program of psychological treatment and psychoeducation, particularly in relation to appropriate sexual behaviour and boundaries, respectful relationships and relevant social skills. I will address this recommendation by including conditions in the good behaviour order.
I will include a specific condition relating to any programs that the Director-General may consider appropriate. This is to ensure that the Director-General may, if appropriate, direct the offender to participate in counselling or education relevant to preventing further similar offending in the future. In relation to an adult, no specific condition would be included because the scope of a probation condition is wide enough: see R v Jones [2020] ACTSC 92 at [31]. However, in relation to the supervision condition, there is no equivalent examples to those that appear in the definition of “probation condition” in the Crimes (Sentencing) Act and hence I have included a specific condition to put beyond doubt the capacity of the Director-General to make a relevant direction.
Child sex offenders register
The starting point in relation to the application of the Crimes (Child Sex Offenders) Act 2005 (ACT) would be that, as a result of the conviction, the offender would be a registrable offender as an offence pursuant to s 55 of the Crimes Act is a registrable class 1 offence: see ss 8 and 10(1)(a). The reporting period for such an offence would be seven and a half years: see s 89(1). The Act would impose significant reporting obligations as well as prohibit certain child-related employment.
The offender made an application pursuant to s 9(2) of the Act. Section 9(2) provides that a person is not a registrable offender if the person was a young person at the time that the offence was committed and “a court considers … that including the person on the register is inappropriate in the circumstances of the case”.
In deciding whether to reach the conclusion under s 9(2) the court is required to take into account the factors in s 9(3), namely, the severity of the offence and the seriousness of the circumstances surrounding the commission of the offence, the age of the person at the time of the offence, the level of harm to the victim and the community caused by the offence, any attempts at rehabilitation by the person, and whether the person poses a risk to the lives or sexual safety of one or more people in the community.
I have indicated above my assessment of the objective seriousness of the offence. The offender was 16 years and two months old at the time of the offence. The victim was 15 years and 10 months old. Not unexpectedly, the victim has suffered ongoing harm as a result of the offence. The offender has accepted responsibility for the offending and has good prospects of rehabilitation in the sense of education, so as to minimise the risk of further offending. I do not consider that the offender poses a risk to the lives or sexual safety of one or more people in the community.
It is also relevant to take into account (pursuant to s 9(3)(f)) that the offence in this case was committed against an individual of the same age as the offender and there is no evidence of any inappropriate conduct or inclination towards sexual involvement with children per se.
Having regard to these matters, I consider that it would be inappropriate for the offender to be included on the register. It appears to me that, having regard to the nature of the offending and the low risk of future offending, no useful purpose would be served by including the offender on the register. Indeed, inclusion on the register would be positively counter-productive having regard to the burdens imposed, the absence of risk to children and the good prospects of the offender living a lawful life.
Section 9(2) provides that a person is not a registrable offender if “a court considers, on application by the defence, that including the person on the register is inappropriate in the circumstances of the case” (Emphasis added). Thus, the statutory condition of not being a registrable offender is based upon the state of mind of the court, rather than any order. In R v EO and R v Smith (a pseudonym) (No 2) I dealt with the matter by reflecting the statutory language. I will do so again here.
Orders
The orders of the Court are:
On the charge of sexual intercourse with a person under the age of 16 years (CH2019/701) the offender is convicted and required to give an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 24 months with:
(a) a supervision condition under s 133U of the Crimes (Sentencing) Act 2005 (ACT) for a period of 24 months or such lesser period as determined by the Director-General; and
(b) without limiting the scope of the supervision condition, a condition that he attend any programs, counselling or treatment as he is directed to by the Director-General, particularly in relation to relationships and consent.
I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 16 October 2020
R
CN [2020] ACTSC 282
The offender is recorded in the pre-sentence report as earning approximately $450 per week from his restaurant job, although during the course of submissions counsel said that this amount was in fact an amount per fortnight. He earns $120 per day from his landscaping work. He has no financial commitments as he lives in his family home.
He has no health concerns. He has no problems with illicit drug use. His consumption of alcohol is limited. He has a significant friend group who are not known to police or CYPS. He is in a romantic relationship with another young person.
His attitude to the offending changed between the first and second pre-sentence reports. In the first report, he presented with “limited acceptance of responsibility and remorse, likely associated with his conflicting version of events.” He told the author of the pre-sentence report that he “didn’t do it” and that he pleaded guilty because his lawyer advised him to. In the second report, the offender indicated that he agreed that what is detailed in the statement of facts took place, however, “he had difficulties in expressing his feelings around this or how his actions would have adversely impacted on others.” The risk assessment records the offender’s level of risk in relation to personality and behaviour as “moderate” due to the lack of guilt feelings.
The offender indicated that he would say sorry to the victim, but that he would likely do this through a letter as it would not be comfortable to do it face-to-face. When asked how the offence would have impacted upon the victim he said “drastically” but did not elaborate further.
Dr Clout’s report indicated that his offending behaviour was more situational than indicative of sexual deviance or a general pattern of antisocial and delinquent behaviour. In those circumstances, she thought that limited interventions would generally be sufficient and that those could take the form of psychoeducational approaches to assessing appropriate sexual behaviour and boundaries, respectful relationships and social and dating skills, so long as this was delivered by a clinician with appropriate expertise. She did describe that “the messaging around these issues in the home environment is problematic”, recording that it was unlikely that his father had the capacity to provide the offender with appropriate support and guidance around such issues. She made a recommendation for psychological treatment and psychoeducation to address the issues of the offender’s insight and risk of reoffending in the future.
The author of the pre-sentence report concluded that: