R v CV [2013] ACTCA 22

Court of Appeal (ACT)|2013-05-24|Before: Gleeson CJ, Hunt CJ, Sully J, Higgins CJ, Katzmann JJ

[2013] ACTCA 22 (24 May 2013)

CRIMINAL LAW AND PROCEDURE - Sentencing - Crown appeal against non-conviction order - young offender - sexual offences - sexual intercourse with a child between ages of 10 and 16 years - plea of guilty - consequences of conviction - relevance to exercise of sentencing discretion - registration as a sex offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) - purposes of sentencing young offender - Crimes (Sentencing) Act 2005 (ACT), Ch 8A - principles different from adults - importance of rehabilitation - non-conviction order -- whether sentencing judge erred in failure to have regard to "very young age" of complainant, failure to observe requirements of s 17 of the Crimes (Sentencing) Act 2005, placing too much weight on apparent consent of complainant, allowing consequences of conviction to override considerations of punishment and deterrence - whether becoming a "registrable person" a relevant consideration - whether sentencing judge erred in finding that respondent would be stigmatised and face adverse consequences in relation to his employment and ability to travel interstate and overseas if a conviction was recorded.

Clarkson v The Queen (2011) 32 VR 361

Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300

House v The King [1936] HCA 40; (1936) 55 CLR 499

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Re Attorney-General's Application (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305

R v Chad (Unreported, NSWCCA, Gleeson CJ, Hunt CJ at CL and Sully J, 13 May 1997)

R v Clarke [1996] 2 VR 501

R v Ingrassia (1997) 41 NSWLR 447

R v Mauger [2012] NSWCCA 51

R v Tait and Bartley (1979) 24 ALR 473

R v Wilton (1981) 28 SASR 362

TMTW v The Queen [2008] NSWCCA 50

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 69 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

IN THE SUPREME COURT OF THE ) No. ACTCA 69 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. On 5 September 2012 CV was sentenced on a charge of engaging in sexual intercourse with a child above the age of 10 years but under the age of 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT). The sentencing judge declined to record a conviction but imposed a bond that the accused be of good behaviour for a period of 12 months. The Crown now appeals from that order. It does not urge that the bond be set aside. Its sole contention is that the sentencing judge erred in failing to record a conviction. Indeed, whether or not a conviction should be recorded was the only issue in the court below. In our opinion, the appeal should be dismissed.

2. CV is 19 years old. Some time before 22 February 2011, when he was 16, he and S became friends on Facebook. S was then 12 years old, but on Facebook she stated she was 16. S started a Facebook account because "she was bored and wanted to meet guys". The two had penile-vaginal sexual intercourse on at least two occasions, first on 22 February 2011, and each time at S's initiative, before S revealed her true age. When she did (in May 2011, soon after S had turned 13), CV was upset that she had lied to him about her age. He told her that she was too young to be in a sexual relationship and he could "get charged". The relationship ended. Two weeks later, however, at S's request, the relationship resumed. At times S asked CV whether he ever thought she was too young for him but he professed not to care because he loved her. S attended a doctor twice, once with CV, to ask for Implanon contraception (an etonogestrel implant), which the doctor refused on account of her age. In July 2011, however, S obtained a prescription for the contraceptive pill, though she routinely forgot to take it and eventually stopped altogether. The evidence is silent about whether CV believed that S was taking oral contraceptives. Nor do the facts disclose whether S ever told CV that she had obtained a prescription, that she forgot to take her pills, or that she stopped taking them.

3. During the course of the relationship S and CV had penile-vaginal intercourse about seven times.

4. This is the context in which the offence occurred.

5. In late September 2011, when CV was aged 17 years and six months and S 13 years and five months, S asked CV when he was going to America. He replied that he was going the next day. She then told him she had a present for him. When he inquired what it was, she said "going away sex". Unprotected penile-vaginal intercourse followed, after which the two watched television and then went to sleep.

6. On 24 October 2011 S attended a medical centre with stomach pains. She underwent a urine test which revealed she was pregnant. On 31 October 2011 she attended a police centre where she was interviewed. CV was arrested two weeks later and promptly admitted his guilt. He told the police that at the time of the offence he felt "pretty drunk" and that S was "very drunk".

7. An obstetric ultrasound undertaken on 3 November 2011 disclosed that S was seven weeks pregnant. On 8 December 2011 the pregnancy was surgically terminated.

8. No victim impact statement was presented to the Court.

9. The principles governing Crown appeals against sentence are well-established. They were conveniently summarised by Refshauge J in R v TW (2011) 6 ACTLR 18 at [4]-[6], drawing on the analysis by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke [1996] 2 VR 501 at 522. It is unnecessary to repeat everything his Honour said in that case but it is useful to make the following points.

10. First, Crown appeals are considered anomalous in the criminal justice system and should only be brought in rare and exceptional cases to establish some point of principle.

11. Secondly, the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentence. It may only interfere with the sentence if there is error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, that is to say, where the sentencing judge acted on a wrong principle; took into account irrelevant matters; failed to have regard to a material consideration; mistook the facts; or (even if the error is "undiscoverable") the result is "unreasonable or plainly unjust" so that the court might infer "that in some way there has been a failure properly to exercise the discretion". A sentence will be "unreasonable or plainly unjust" where it is manifestly inadequate or excessive: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25].

12. Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error.

13. In the present case there is no ground of appeal that the sentence was manifestly inadequate. The notice of appeal particularises four grounds, though in reality there are only three as the first is merely conclusory, and the appeal was conducted on that basis. They are:

(i) His Honour erred in making a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) ("the Sentencing Act");

(ii) His Honour erred in failing to observe the requirements of s 17 of the Sentencing Act;

(iii) His Honour erred in allowing the consequences of conviction to override considerations of punishment and deterrence; and

(iv) His Honour erred by taking into account an irrelevant consideration, namely the consequences of the conviction.

14. No particulars were provided as to the requirements of s 17 with which the sentencing judge supposedly erred. Nor did the Crown elaborate in the notice of appeal about what was meant by "the consequences of conviction". In submissions, however, it emerged that the Crown's complaints were that the sentencing judge erroneously:

Did not have regard to "the very young age" of S;
Regarded as extenuating circumstances the facts that the sexual activity was consensual and that only one act of sexual intercourse occurred after CV became aware of S's true age when they were not "extenuating circumstances in which the offence was committed";
Placed too much significance on S's apparent "consent"; and
Took into account the fact that if he were to record a conviction, CV would be required to register as a sex offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) ("Child Sex Offenders Act").

Did the sentencing judge fail to have regard to S's "very young age"?

15. It is not readily apparent whether this submission falls within any ground of appeal. It was not the Crown's contention that it would be an appealable error for a conviction not to be recorded in any case involving a 13 year old child. Ultimately, however, it is unnecessary to decide whether it does fall within a ground of appeal because we are satisfied that his Honour did have regard to S's age.

Did his Honour fail to observe the requirements of s 17 of the Sentencing Act?

16. Section 17 provides:

(1) This section applies if an offender is found guilty of an offence.

(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(b) the seriousness of the offence;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

17. It was difficult to understand the basis for the contention that the sentencing judge failed to observe the requirements of the section. In [23]-[24] of his Honour's reasons, after extracting the relevant parts of the section, he listed the matters he was required to consider. He undoubtedly considered them.

18. His Honour noted CV's age and assumed in the absence of evidence to the contrary, that he was in good physical and mental health. As to the offender's character and antecedents, his Honour described it as "unblemished" and noted that he had no criminal record. He accepted CV's admission of guilt, noting that the police were thereby relieved of the need to carry out further investigations, and his guilty plea, which relieved S of the need to give evidence. His Honour said that these matters confirmed his character as a responsible young man. The Crown makes no complaint about these findings, notwithstanding the circumstances of his relationship with S, which indicate a level of irresponsibility.

19. As to the seriousness of the offence, his Honour described it as "a very serious" one and noted that the maximum penalty prescribed by the parliament was 14 years. Later in his reasons he repeated that the offence was very serious.

20. On the question of extenuating circumstances his Honour noted first, that S initiated the sexual activity, secondly, that it was consensual and thirdly, that only one act of sexual intercourse occurred after he became aware of her true age. The first two propositions are accurate. It is by no means clear that the third is correct, but the Crown did not submit that it was not. No part of the notice of appeal or the written or oral submissions suggested that his Honour mistook the facts.

21. As to s 17(4) his Honour said this at [30]:

As to "anything else" that I consider to be relevant, I consider that the fact that, if sentenced for having committed the offence, Mr CV will be registered as a child sex offender, pursuant to the provisions of the Crimes (Child Sex Offenders) Act 2005 (ACT), is relevant. Registration of Mr CV as a child sex offender, pursuant to the provisions of the Act, will impose many requirements upon him for the next 7 years 6 months. I consider that the fact that Mr CV will be subject to these adverse requirements to be a relevant consideration in the exercise of the statutory discretion provided by section 17.

22. In the course of oral argument, when pressed to identify how his Honour had erred in failing to observe the requirements of s 17, the Crown submitted that he mischaracterised the nature of the extenuating circumstances. The Crown contended that the third matter his Honour identified as an extenuating circumstance (that only one act of sexual intercourse occurred after he became aware of her true age) was not one in which the offence was committed. That much is true. CV was charged with only one offence. The extenuating circumstances with which s 17 is concerned are "extenuating circumstances in which the offence was committed". Consequently, if it were the fact that CV had only had sexual intercourse with S once after he became aware of her true age, this could not have been an extenuating circumstance in which the offence was committed. This was an error, entitling this Court to review the sentence.

23. The Crown also complained that his Honour considered that the fact that sexual activity was consensual was an extenuating circumstance. In Clarkson v The Queen (2011) 32 VR 361 ("Clarkson") the Victorian Court of Appeal (constituted by a bench of five justices) stated that the consent of the child can never, "of itself", be a mitigating factor, although absence of consent will significantly increase the seriousness of the offence and the culpability of the offender. The Court observed that the prohibition on sexual activity with a child is founded on a presumption that children are unable to give meaningful consent. A child's "consent" is more accurately "apparent" or "ostensible" consent. The Court held (at [5]) that:

Proof that the child consented is the beginning, rather than the end, of the sentencing court's enquiry. In assessing the gravity of the offence and the offender's culpability, the court's attention will be directed not at consent as such but at the circumstances in which the consent came to be given.

24. The Court went on to make the following observations (at [6]-[8]):

Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases - for example, the consent given by a pupil to her teacher, or by a daughter to her mother's partner - the circumstances will usually reveal the offender's abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.

At the other end of the scale, there are exceptional cases - for example, in a relationship between a 15 year old girl and an 18 year old boy - where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender's culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.

In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender's conduct and, hence, determine the appropriate sentence.

25. We have no doubt that his Honour was mindful of these principles. He referred to Clarkson in his reasons. His Honour said (at [42]):

I have said that the offence committed by Mr CV is a very serious offence. I realise that the law against someone engaging a person who was under the age of consent in sexual activity is designed to protect young people from themselves as well as to protect them from predatory conduct of older people.

26. On at least one view of the facts of this case, S's consent to sexual intercourse was part of the reason CV committed the offence and therefore a matter the Court was obliged to consider: Sentencing Act, s 33(1)(v). The statement of facts upon which he was sentenced shows that CV had previously made clear to S that he would not have intercourse with her unless that was her wish. Regardless, the reference in his Honour's remarks to consent should not be taken as a separate consideration to the preceding reference to S initiating the sexual activity. This was not a case in which the Court regarded "consent, of itself" to be an extenuating circumstance. Rather, in his Honour's opinion, it was one of those exceptional cases in which "the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two" (Clarkson at [7]). On the agreed facts, that conclusion was plainly open.

27. It must be accepted, of course, that the particular example given by the Court in Clarkson differs from the factual circumstances of the present case. But there is nothing to suggest that the sentencing judge overlooked the differences in the ages. Not all 13 year old girls have the same level of maturity or immaturity. Neither do all 17 year old boys. There was no expert evidence about the accused's intelligence or maturity, but the unchallenged evidence of his mother was that he was immature. In evidence she volunteered that:

He's not - he doesn't act like an 18-year old, he tends to try and - he hangs round with his 15-year-old brother and his mates and doesn't - he has friends his age, but very few, he tends to more hang around with kids that are 15.

28. The Crown submitted that the sentencing judge "incorrectly placed too much significance to (sic) the apparent 'consent' of [S]". In our view, that submission is not made out.

Allowing the consequences of conviction to override considerations of punishment and deterrence

29. His Honour said (at [45]) he was "convinced" that for CV "the legal and social consequences ... of recording a conviction against him ... far outweigh the requirements of punishment, denunciation and deterrence, both personal and general". He did not say what he meant by "the legal and social consequences". But there is no doubt what his Honour had in mind. If a conviction were recorded, CV would become a "registrable offender" under the Child Sex Offenders Act. That would not merely be a burden for him, but it could interfere with his rehabilitation. The reference in this ground of appeal to deterrence is a reference to general deterrence. The Crown did not submit there was any need in this case for specific (or personal) deterrence.

30. The purpose of the Child Sex Offenders Act (set out in s 6(1)) is as follows:

(b) require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time -

(i) to reduce the likelihood that they will reoffend; and

(ii) to facilitate the investigation and prosecution of future offences that they may commit; and

(c) prevent registrable offenders working in child-related employment; and

(d) prohibit registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children.

31. It is common ground that the Act does not apply if CV is not convicted. The effect of s 9 is to exempt CV from its operation if a non-conviction order under s 17 of the Sentencing Act is made. A conviction, on the other hand, would have a number of consequences for him. In CTM v The Queen (2008) 236 CLR at [64] Kirby J described such consequences as "grave". He would commit an offence (punishable by a fine of up to 200 penalty units or 2 years imprisonment or both) if he applied for "child-related employment" or was reckless as to whether the employment was child-related (s 126). Both "employment" and "child-related employment" are broadly defined (ss 123, 124). "Employment" includes "undertaking practical training as part of an educational or vocational course" (s 123). "Child-related employment" includes educational institutions for children (defined in the Legislation Act 2001 (ACT) as individuals under 18) and work-related training contracts under the Training and Tertiary Education Act 2003 (ACT) (s 124). Consequently, recording a conviction has the potential to deprive CV of the opportunity to undergo further training at a time in his life when his future employment path is uncertain.

32. If convicted, CV would also have reporting requirements. Some of the reporting requirements are not especially onerous. For example, CV would be required to report his personal details within seven days after being sentenced (s 23) and annually thereafter for 7½ years (see s 89) in person to the chief police officer at an approved reporting place (s 37(1)(a)(i)). The other requirements, however, are onerous, at least in effect, and are certainly more onerous than those imposed by the equivalent NSW legislation. If, within that 7½ year period CV left the ACT and intended to travel, not just overseas, but outside the Territory - even a short distance, such as to Queanbeyan - for seven or more consecutive days, a registrable offender is required to take all reasonable steps to report his travel details at least 7 days before leaving (s 42). Failure to adhere to any of these reporting requirements amounts to an offence punishable by a fine of up to 500 penalty units or imprisonment for five years or both.

33. This ground of appeal (that his Honour allowed the consequences of conviction to override considerations of punishment and deterrence) is taken from a statement in a judgment of Latham J in the NSW Court of Criminal Appeal. In that case - R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 ("KNL") - the Court allowed an appeal by the Crown against a judgment imposing a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the equivalent of s 17 of the Sentencing Act) and entered a conviction. Her Honour (with whom Brownie AJA and Buddin J agreed) said this:

This was an objectively serious offence given the complainant's age. It may have been towards the lower end of the spectrum for offences of this kind, but the Respondent's belief as to the complainant's age could not of itself deprive it of that character. General deterrence was an important factor in sentencing, particularly where the Respondent's community consisted of like-minded young men who were prepared to uncritically accept what they were told as to a girl's age. The scope for the operation of s 10 was, in my opinion, misconceived by his Honour, the more so because he sought to factor in the so-called punitive effects of a conviction.
Before leaving this aspect of the matter, I doubt that, in the circumstances of this case, the requirements as to registration under the Offenders Registration Act could be properly characterised as extra-curial punishment entitling the Respondent to any mitigation of penalty. The Respondent was not, at the time of sentence, or likely in the future to be, pursuing an occupation which gave him access to children. Many pieces of legislation require persons to register their details with police or other public authorities, in the interests of public health and safety, for example, legislation relating to the possession of firearms. The cases which have thus far considered the notion of extra-curial punishment have been restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence. (See generally R v Daetz: R v Wilson [2003] NSWCCA 216).
I do not mean to suggest that there could never be a case where extra-curial punishment might arise from the requirements of the Offenders Registration Act, but this case fell far short of any penal consequence being visited upon the Respondent because of a conviction. Even allowing for some regard to the requirements of registration and the potential restriction on employment, that factor deserved very little weight; R v Daetz at par 62.
In my opinion, the Crown's submissions in respect of specific error in the sentencing exercise have been made good. His Honour failed to observe the requirements of s 10. In particular, his Honour failed to have due regard to the complainant's age in assessing the objective gravity of the offence, and his Honour allowed the consequences of a conviction to override considerations of punishment and general deterrence.

34. There are some similarities between KNL and the present case, but there are also some important differences. For example, the age gap between the complainant and the Respondent was seven years in KNL, not four as in the present case. Secondly, the complainant in KNL was 12 years and two months, not 13 years and five months. Thirdly and more importantly, the Respondent in KNL was 19 years and six months at the time the offence was committed and therefore not a juvenile at the time. We will return to this important feature shortly. Fourthly, in KNL the Respondent, not the complainant, was the instigator of sexual intercourse. He told her that he wanted to have sex with her and took off her tracksuit pants and underpants. Furthermore, several times during vaginal intercourse the complainant asked him to "pull away". Fifthly, in KNL the Respondent's solicitor conceded that his client was unlikely to seek employment where he had access to children. There was no such concession in the present case.

35. There is one other subtle, but important, difference between the two cases. Section 10 of the NSW Act requires the Court to have regard to the same matters listed in s 17 - with one qualification. The Court in KNL said that the sentencing judge did not have regard to s 10(3)(b) of the NSW Act. That section provides that the Court is to have regard to "the trivial nature of the offence". In contrast, the ACT Act requires that the Court have regard to "the seriousness of the offence". In KNL her Honour said (at [46]) that, "whilst it is not necessary that a finding be made as to the trivial nature of the offence before proceeding to disposition under s 10, it would seem anomalous to make an order under s 10 in the face of an express finding that the offence was not trivial". It does not seem anomalous to make an order under s 17 in the face of an express finding that the offence was serious.

36. KNL was drawn to the sentencing judge's attention in the present case. His Honour mentioned the judgment in his remarks, referring to some, though not all, of the differences we have already mentioned.

37. The Crown accepted that there is no limit to the offences to which s 17 can apply. However, it submitted that "where the seriousness of the offence and the need for general deterrence and denunciation are important factors in sentencing for a particular offence, the scope for the operation of the section decreases". It referred to the remarks of Howie J in the guideline judgment on sentencing for high range drink driving offences to which the Court in KNL also referred: Re Attorney-General's Application (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 at [130]-[132]:

I accept that the court must concentrate on the particular conduct of the offender and the circumstances of offending rather than on the nature of the offence in determining whether the particular offence before the court is trivial: Walder v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577. I am prepared to acknowledge the possibility that there may be cases where the offending is technical (rather than trivial), there being no real risk of damage or injury arising from the driving, so that the highly exceptional course in making an order under the section would be justified.
The court must also have regard to all of the criteria in s 10(3) in determining whether a dismissal of the offence or a discharge of the offender is appropriate: R v Paris [2001] NSWCCA 83. I recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate the situations in which an order under s 10 might be warranted notwithstanding the objective seriousness of the offence. ...
But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament's view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable.

38. The submission assumed, but did not establish, the need for general deterrence and denunciation in this case.

39. Having regard to the provisions of the Sentencing Act, the Crown's submission is hard to fathom. Section 7 lists the purposes for which an offender may be sentenced. It reads:

(1) A court may impose a sentence on an offender for 1 or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender;

(g) to recognise the harm done to the victim of the crime and the community.

(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

40. But the Act makes special provision for young offenders (see s 133C). In such cases the Court is entitled to give more weight to the promotion of the rehabilitation of the offender than to any other purpose (s 133C(1)). CV is a young offender within the meaning of the Act, having been found guilty by the Court of an offence that was committed when he was under 18 years of age (s 133B).

(1) Despite section 7 (2), in sentencing a young offender, a 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 section 7 (1).

(2) Also, in sentencing a young offender a court must have particular regard to the common law principle of individualised justice.

42. In R v PM [2009] ACTSC 24 at [52]-[54] Refshauge J pointed out that the Sentencing Act reflects the position at common law. His Honour cited the remarks of Mathews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 at 116:

The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court NSW, 15 August 1979), Yeldham J remarked during the course of sentencing a young offender that "in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation". His Honour relied upon Smith [1964] Crim LR 70, where it was said: "In the case of a young offender there can rarely be any conflict between his interest and the public's. The public have no greater interest than that he should become a good citizen"...

43. The weight to be given to the youth of the offender does not vary with the seriousness of the offence: R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [24].

44. It is true that CV was close to the legal age of majority at the time of the offence. In such cases the court may make "little allowance" for these considerations (R v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530 at [16] per Wood CJ at CL (Giles JA agreeing)), but we do not think that this is necessarily such a case, as the evidence suggested that CV's legal age did not coincide with his level of emotional maturity (cf. R v Kama [2000] NSWCCA 23; (2000) 110 A Crim R 47). Accordingly, we are not persuaded that his Honour erred in giving less weight to deterrence and punishment than to rehabilitation.

45. The Crown contended that the fact that CV would become a registered child sex offender was irrelevant. We reject the contention.

46. In R v Ingrassia (1997) 41 NSWLR 447 at 449 (McInerney and Ireland JJ agreeing) Gleeson CJ said of s 556A of the Crimes Act 1900 (NSW) (the predecessor of s 10):

The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps "without proceeding to conviction". The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 269, "a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice".

47. Nevertheless, the Crown submitted that although extra-curial punishment may be taken into account on sentence, the effect of the Child Sex Offenders Act could not be, as it does not amount to extra-curial punishment "such as may be taken into account on sentence". It referred to the protective objects of the legislation and the remarks in KNL. There are a number of problems with this submission.

48. First, the authority cited in support of it (KNL) was not so emphatic.

49. Secondly, there is authority to the contrary. In TMTW v The Queen [2008] NSWCCA 50, after referring to KNL, Simpson J, with whom McClellan CJ at CL and James J agreed, said this:

It is true that the present is an unusual case to come within the provisions of the Offenders Registration Act [the Child Protection (Offenders Registration) Act 2000 (NSW)]. The Offenders Registration Act is plainly designed to provide protection for the victims, past and potential, from individuals who pose a risk to them - that is, a risk that they will commit offences of a sexual nature. On no view of the present case could it be said that the applicant has a predilection sexually to molest children, or is likely to pose such a risk in the future. The Offenders Registration Act does not appear to envisage any exemption from its provisions, even where it can be clearly seen that an offender does not pose a relevant risk.
It seems to me that the regime that will be imposed upon the applicant for a period of 8 years could properly qualify for the description "extra curial punishment". The real question is whether that ought to operate in such a way as to reduce the sentence that is appropriate to the offending.
Bearing in mind that physical reporting is required only once in each year, I do not regard that requirement as such that it ought to be accorded any weight in the sentencing decision. There may well, however, be a less tangible burden on an offender such as the applicant. He is, for eight years after his release, to be branded a sexual offender, to be known, at least to local police, in that capacity, and will be reminded of his crime, something he would, no doubt, prefer to put out of his mind. I do not regard this as entirely irrelevant.

50. Thirdly, the fact that the Child Sex Offenders Act has a protective, rather than punitive, purpose does not mean that it does not also have a punitive effect on the offender.

51. Fourthly, the sentencing judge did not refer to the sex offenders registration scheme as an extra-curial punishment or treat it as such; he treated it as a legal consequence of conviction. That it undoubtedly is.

52. Fifthly, the possibility that a conviction for the offence could have detrimental consequences for an offender's employment is undoubtedly a matter that a sentencing court can take into account. See, e.g. R v Mauger [2012] NSWCCA 51 ("Mauger") at [29].

53. Sixthly, s 33(1)(r) of the Sentencing Act requires the Court to take into account whether the recording of a conviction would be likely to cause particular hardship to the offender.

54. In all the circumstances the fact that CV would become a registered sex offender was not irrelevant.

55. Even if we are wrong, however, we would exercise our discretion not to disturb the sentence on this account because in the court below the Crown not only failed to contend that his Honour should disregard the effects the Child Sex Offenders Act would have on CV, but told him that it was something he should consider.

56. It is unjust to expose an offender to the double jeopardy created by a Crown appeal because of an error affecting his sentence to which the Crown's presentation of the case contributed: R v Tait and Bartley (1979) 24 ALR 473 at pp 476-77. Only in exceptional circumstances will an appellate court allow the Crown to put arguments on appeal that were not put to the trial judge: R v Wilton (1981) 28 SASR 362 at 368 (cited with approval in Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 302-4). See also Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300 at 312 [39]-[40] where Redlich JA (with whom Buchanan and Nettle JJA agreed) spoke of the "great reluctance" of appellate courts to allow the Crown to adopt one attitude on a plea and a different opposing attitude on a Crown appeal. His Honour continued:

The Crown will necessarily be debarred on appeal from taking a stance different from that adopted at first instance. The Court may, in the exercise of its discretion, consider it just to permit the Crown to do so having given due consideration to the principle of double jeopardy, to any prejudice that would be sustained by the Respondent in now raising the issue for the first time, to the degree of the Crown's departure from its original position, to the seriousness of the crime being punished and to the magnitude of the sentencing error identified on the appeal.

(Citations omitted.)

57. The present case is not one which calls for the exercise of the discretion. The stance the Crown took in the appeal is a complete about-face from the stance it took in the court below. The Crown should not be permitted to reverse its position.

58. With the exception of the one error concerning extenuating circumstances, none of the matters raised by the Crown gives rise to appealable error. We are not satisfied that the error justifies interfering with the sentence. As counsel for CV submitted, the sentencing judge's focus was apparently upon individualised treatment of the offender directed towards his rehabilitation. His Honour accepted that the offence was a very serious one and the fact that it involved unprotected sex was an aggravating circumstance. It was open to his Honour, however, to regard CV's criminal responsibility as falling at the lower end of the scale. Indeed, the mere fact that the only dispute both below and on appeal was about whether a conviction should be recorded is testament to this. As his Honour remarked, CV did not initiate the sexual activity, he did not prey on S or exploit any advantage he had over her or any disadvantage she was under. There was no breach of trust. There was no coercion or even enticement. There was apparently little or no need for specific deterrence. CV entered an early guilty plea and apparently made a full confession when first questioned.

59. The Crown's position overlooks the significance of the bond. As Harrison J (with whom Beazley JA and McCallum J agreed) observed in Mauger (at [38]) (in a passage cited by the sentencing judge in the present case), whilst the recording of a conviction is generally a matter of importance in an offence of a serious kind, that circumstance should "not be permitted to dilute or to downgrade the significance of the imposition of a bond". In Mauger the bond was two years, here it is only one, but the Crown does not argue that the sentencing judge erred in imposing a one-year bond. In the circumstances, the following remarks made in Mauger (at [38]) are apposite:

The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.

60. There are two additional matters to which the sentencing judge in the present case did not avert, at least expressly. The first is CV's immaturity. We think it likely that this was a significant factor in the commission of the offence. We take this into account as we are bound to do by s 133D(1)(a) of the Sentencing Act. That brings us to the second additional matter. Section 133D also requires a court, in deciding how (if at all) to sentence a young offender, to take into account the offender's past and present family circumstances (see s 133D(1)(c)).

61. CV's mother testified that in 2010 (the year before the events in question) she separated from her husband, CV's stepfather, and CV "went off the rails". She said he started to drink alcohol, took to drinking regularly, and did not attend school. At the end of the year she, herself, tried to overdose and CV went to live with his grandmother, while his two brothers went to live with their father, CV's stepfather. She said that since late 2011, when, it would seem, the family reunited, CV has been fine. He has had a series of jobs, successfully completed a course to work as a security guard and was awaiting a police clearance. Apart from the night of his birthday and possibly one other time, she said "he doesn't sort of tend to drink any more at all". She said he was supportive of both her and the other children, describing him as "very helpful". This evidence supports the conclusion that the relationship with S occurred at a time in CV's life when he was particularly vulnerable. It also supports the conclusion that as he enters his adult years, he is well on the way to a complete rehabilitation if he has not already achieved it. We have no reason to doubt that he has learned from this experience and that the processes of the law have had a salutary effect on him. The Crown never contended that there was a real risk that he would reoffend.

62. We would also observe that the Crown did not submit to the sentencing judge that he would be falling into appealable error if he failed to record a conviction in this case. In this respect we would respectfully adopt what Hunt CJ at CL said (with the agreement of Gleeson CJ and Sully J) in R v Chad (unreported, NSWCCA, 13 May 1997) at 13:

Sentencing judges are entitled to rely upon the Crown to make such submissions. There is a substantial difference between on the one hand submitting that an appealable error will be made and on the other hand merely arguing that the judge should impose a particular type of sentence in the exercise of his or her discretion. The failure to make the submission that appealable error would result in the present case certainly enlivens this Court's discretion to refuse to intervene despite the error demonstrated.

63. Ordinarily, anyone found guilty of sexual intercourse with a child could expect to be dealt with severely and an order under s 17 would be unusual, if not rare. But this was no ordinary case. By his decision not to record a conviction his Honour resolved to give CV a chance to begin his adult life without a criminal record and without being stigmatised as a sex offender. We would not now deny him that chance.

64. In the particular circumstances of this case and taking into account all relevant matters, we would not disturb the orders of the sentencing judge. The appeal should therefore be dismissed.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: ACT Director of Public Prosecutions

Solicitor for the Respondent: Legal Aid ACT

(Child Sex Offenders) Act 2005

(Sentencing) Act 2005

Tertiary Education Act 2003

(Sentencing Procedure) Act 1999

Protection (Offenders Registration) Act 2000

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