CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - sexual offences - sexual intercourse with young person - plea of guilty - child sex offenders register - terms of imprisonment suspended - Good Behaviour Order - community service.

Crimes Act 1900 (ACT) S 55(2)

Crimes (Sentencing) Act 2005 (ACT)

Legal Aid ACT (Offender)

1. Rhett Dickerson, you have pleaded guilty to an offence of engaging in sexual intercourse with a person under the age of 16 years. The maximum penalty for this offence which is contrary to s 55(2) of the Crimes Act 1900 (ACT) is 14 years imprisonment.

2. In brief, the facts are that on 26 August 2015, you met up with the victim in a disabled toilet in a restaurant in the ACT where you kissed and fondled her breasts and put your fingers inside her vagina and masturbated her. You then used the victim's hand to masturbate yourself until you ejaculated. You were shift supervisor at that restaurant and the victim also worked at that restaurant. You were 25 at the time of this offence and the victim was 15.

3. You entered an early plea of guilty to this charge in the Magistrates Court on 30 June 2016 and you were committed for sentence to this Court. An indictment was filed on 2 August 2016 containing one count of engaging in sexual intercourse with a person under the age of 16 years. You entered a plea of guilty to that charge on that day. I accept that your plea demonstrates remorse and also had a significant utilitarian value. Perhaps most importantly it relieved the complainant of the necessity to give evidence at any trial. I will reduce by approximately 25 per cent the sentence which I would otherwise have imposed in order to reflect your plea of guilty. I also note that you made admissions in a taped interview with police which also speaks of your remorse and your willingness to facilitate the course of justice.

4. You have a relatively minor criminal history which may be ignored for present purposes. You are entitled to a degree of leniency in the present proceedings based upon your lack of relevant prior criminal history. The lack of a prior relevant criminal history also suggests that personal deterrence is not a particularly significant sentencing consideration with respect to the present matter.

5. I take into account the contents of the Pre-Sentence Report prepared for the sentence hearing. You are now 26 years old and you had a stable childhood even though your parents separated when you were 4 years old. You maintain supportive relationships with your mother, brother and stepfather.

6. Since the present offence, you have married a woman that you have known since you were 15 years old. You are the father of a six month old daughter from that relationship as well as a six year old daughter from a previous relationship. You are the primary carer for your six year old daughter. You have ceased work since this offence and you now care full-time for your two children with your wife returning to paid employment.

7. The author of the Report noted that you agreed with the police Statement of Facts and that you explained your offending by saying that you were feeling bad about your employment and that the attention given to you by the victim made you feel better. You apparently said that you were unable to control your sexual urge to do what you did at the time. I note in that regard that there is no suggestion that you suffer from any mental or physical condition which would preclude you from being able to control your sexual urges. As such, I do not accept the proposition that you were unable to control those urges on this occasion. The fact is, you chose not to control them. I do accept that at the time that you were feeling bad about your employment and that the attention which was given to you by the victim made you feel better.

8. I note that you were assessed as at low risk of general reoffending and at moderate to low risk of sexual reoffending. The Report recommends that you be assessed for, and if found suitable, complete the Adult Sex Offender program. I note that you have indicated willingness to undertake that program.

9. Victim impact statements from the victim and her parents were tendered at the sentence hearing. The victim speaks of emotional vulnerability at that time of her life and the mental turmoil which followed this offence, particularly when you threatened to kill yourself if the police became involved. As a result of this offence and having to speak to the store manager about what occurred, the victim had to leave her employment at the restaurant. The victim, of course, also had to speak to police about what happened. This has to have been very confronting for an emotionally vulnerable 15 year old. The victim's parents also speak of the stress that these events have caused the victim and how she blamed herself for what had occurred.

10. Objectively this is a serious offence although I am not satisfied that the offence was predatory in the sense that you deliberately abused your position of authority in order to gratify your sexual desires with a 15 year old child. It is nevertheless an aggravating circumstance that you were in a position of authority with respect to the victim.

11. As an adult, it was your obligation to ensure that your relationship with the victim as a child and as a member of your staff remained appropriately professional and detached. It is not to the point that the victim may have appeared to you to be a willing participant in these events. As a child, she was not equipped, either intellectually or emotionally, to be able to make choices and to express her choices about engaging in sexual activity with an adult. The clear imbalance of power in the relationship means that any belief that you have or had at the time about the victim's willingness to engage in sexual activity with you does not mitigate your offence.

12. It was accepted by your counsel, and rightly so, that the starting point in sentencing you for this offence is a term of imprisonment. The only question is how that sentence is to be served. Your counsel submitted that a suspended sentence of imprisonment with a Good Behaviour Order requiring, amongst other things, that you complete the Adult Sex Offender program, would satisfy the requirements of sentencing.

13. The Crown also submitted that a term of imprisonment was appropriate but declined to make any submission as to how such a sentence may be served. It is a principle of sentencing at common law which is reiterated in the Crimes (Sentencing) Act 2005 (ACT) that a full-time term of imprisonment is only to be imposed as a sentence of last resort and in circumstances where no lesser sentence can achieve the objectives of sentencing.

14. In the present case, general deterrence is a very significant sentencing objective. By that, I mean that it is important that the Court passes a sentence which is designed to deter others from committing this type of offence. Your age, lack of relevant criminal history and positive family support all speak of good prospects for rehabilitation. An immediate sentence of imprisonment, however, in my opinion is not necessary in order to deter you from committing further offences of this nature. As a result of the conviction that I will impose, you will be registered in the Child Sex Offenders Register for many years and will be subject to the onerous requirements that come with registration. This will be a very strong deterrent against reoffending.

15. Balancing all relevant considerations, I have determined to impose a suspended sentence of imprisonment with a Good Behaviour Order requiring you to complete the Adult Sex Offender program and also to complete a Community Service Order. I note that you were found suitable to complete such an order.

16. I record a conviction and you are sentenced to 12 months imprisonment, wholly suspended, with a Good Behaviour Order for a period of two years commencing today, 2 November 2015 with the following conditions:

(a) you are to accept the supervision of ACT Corrective Services for a period of two years or such lesser period as deemed appropriate by your supervisor and you are to obey all reasonable directions of ACT Corrective Services;

(b) you are to be assessed for, and if found suitable, participate in the Adult Sex Offender program as directed by ACT Corrective Services;

(c) you are to complete 300 hours of community service as directed by an officer of ACT Corrective Services within a period of two years; and

(d) you are to report to ACT Community Corrections at Eclipse House within 48 hours.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.