R v EO [2017] ACTSC 138

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentence - young offender - engaging in sexual intercourse with a person above the age of 10 years but under the age of 16 years - plea of guilty - remorse shown to the victim - insight into effects of offence - not included onto child sex offender's register - Good Behaviour Order

Crimes Act 1900 (ACT), s 55(2)

Crimes (Child Sex Offenders) Act 2005 (ACT), ss 9(2), 9(3)

Crimes (Sentencing) Act 2005 (ACT), ss 133B, 133C, 133D

1. The offender has pleaded guilty to the charge that, on the 13 April 2016, he engaged in sexual intercourse with a person 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 victim was in fact 14 years of age at the time of the offence. The offender was aged 17 at the time and is now aged 19. As he was under age of 18 at the time of the offence, he is therefore a young offender for purposes of sentencing: see s 133B of the Crimes (Sentencing) Act 2005 (ACT).

2. The victim and her father were long time family friends of the offender's mother and the offender.

3. The victim and her father travelled to Canberra from Sydney on 12 April 2016. As stated above (at [1]), the victim was aged 14 at the time. The offender, his mother, the victim, and her father all went out to dinner to a nearby restaurant. The victim and her father were staying at the offender's house in Downer. The victim's father slept on the couch and the victim was given the study to sleep in. The offender and the victim commenced a conversation through Facebook Messenger. During the conversation they discussed drinking, drug use, and sneaking out to parties, as well as prior sexual history. The victim asked the offender whether he could supply her with MDMA. The offender did not agree to this. The victim told him not to mention what she had told him to their parents.

4. The victim also communicated with her boyfriend who in turn contacted the offender and there was what is described in the statement of facts as "a heated exchange".

5. The Facebook Messenger conversation continued between the offender and the victim. The victim reiterated her request that the offender not tell anyone about their conversation and the offender indicated that he was upset because of what he had been told by her boyfriend. The victim asked what she could do to make it up to him. She subsequently said she was "down for anything as long as you promise to delete the messages". He invited her to his room to delete the messages herself and he would tell her how to make it up to him when she was there. In the early hours of the morning she went to his room. She restated that she would do anything for the messages to be deleted. He began kissing her and pulled her on top of him. It was agreed that if the offender achieved an orgasm then the messages would be deleted. The offender asked the victim if she would have sex with him but she declined. She agreed to give him "a hand job". The offender persisted and asked for "a blow job", which she agreed to but said that she was only doing so in order for the messages to be deleted. She said she felt upset. He asked if she was okay. She told him not to worry about it and performed fellatio on him until he ejaculated. The victim declined to then watch a movie with the offender after he invited her to do so. She subsequently asked to borrow some headphones and he provided her with some.

6. Later on 13 April the victim contacted a telephone helpline and then met with police. At 11:48pm that evening the offender sent the victim Facebook message indicating that he regretted what had happened and was ashamed of himself. There were subsequent Facebook conversations which occurred between the offender and police who had assumed the online identity of the victim.

7. The maximum penalty for the offence of sexual intercourse with a person under 16 contrary to s 55(2) of the Crimes Act is 14 years imprisonment

8. The victim read a victim impact statement. By the time of the sentencing she was 16 years old. She described a significant range of impacts upon her. In particular she has described the effect on her physical and mental health, suffering from panic attacks and flashbacks. She has made two suicide attempts since being sexually assaulted and been hospitalised. The sexual assault has had an effect on her body image and her relationships. She perceives that she has lost trust in people and recognises that the impact of the assault on her has also had an impact on both her parents and others. She feels that she "should have been able to keep her innocence for a few more years."

9. Having regard to the maximum penalty, the offence is a serious one. The present offending conduct involved manipulative behaviour, the exploitation of an age differential between offender and victim, the absence of respect for the victim, and an inappropriate view of sexual relations between people. It did not involve a significant degree of premeditation. There is no doubt that acts of this kind have the potential to have long-term adverse impacts upon the victims of such conduct. It is clear that there have been considerable impacts of the conduct upon the victim. Because of the nature of the psychological impacts that offences of this nature produce, it is difficult to predict the extent of any further impact in the future. However it is possible to confidently say that this is not a case where there will be no significant harm extending beyond the time at which sentencing occurs.

10. However because of the nature of a sexual act and the absence of significant aggravating features, I assess it as being in the low to mid range of objective seriousness for an offence of this kind. I note that it is not in the lower range of objective seriousness because of the presence of the element of coercion and the age differential between victim and offender.

11. The offender pleaded guilty on the fourth mention in Court. There was never a plea of not guilty entered. Subsequent to the plea of guilty there was some discussion of the statement of facts which would provide the basis for the sentencing. I therefore treat the plea of guilty as an early one. It clearly has significant utilitarian value in a case such as this. It is also consistent with and reinforces the evidence that is available about the offender's remorse and the likelihood of reoffending.

12. The offender is now 19 years old. At the time of the offence he was 17 years old. The pre-sentence report indicates that he has been substantially raised by his mother. Generally speaking, his formative years were positive and free of trauma. There was a period where his mother had little family support and suffered from breast cancer. The offence occurred during his final year of high school, which was also a time that involved the death of two family members. Although he lives with his mother and has limited visits with his father, who resides in Sydney, they enjoy a good, positive relationship.

13. He completed Year 12 and is presently employed in a retail chain store, receiving wages of up to $700 per fortnight. He is still supported by his mother and his father continues to pay child support payments.

14. His peer network is generally what is described in the report as "prosocial". He has a limited and not unusual pattern of alcohol and drug use. He has no physical or mental health concerns although he has suffered some anxiety as a result of the commission of the present offence.

15. He recognised that he pressured the victim into complying with his request for sex and admitted that his actions were wrong and knew so at the time.

16. He is assessed as being at a low risk of general offending because he has multiple protective factors including good family support, stable accommodation, and employment. The author of the pre-sentence report suggested there may be some concern about his alcohol consumption and it is recommended that this be explored further. The report indicates that the offender presented as open and forthright and has commenced treatment with a private psychologist to address his offending behaviour.

17. The author of the pre-sentence report indicates that a low level of intervention by ACT Corrective Services is necessary and that any supervision condition imposed as part of a Good Behaviour Order be only for the period deemed necessary by ACT Corrective Services. He is assessed as being suitable for a community service work condition.

18. The offender gave evidence. He stated in this evidence that he had disclosed his conduct to his mother within 24 hours of the offence occurring. He also gave evidence about the psychological counselling that he had obtained which dealt with what happened, issues of consent to sexual activities, and victim empathy. His evidence indicated that he recognised not only why the conduct was wrong and that it had impacted directly upon the victim, but also the broader social impacts of the events on his mother and on the social relationships between his mother and the victim's family.

19. The offender's mother also gave evidence. She gave evidence of his early disclosure of the events and his reaction over time to the situation that he was in. She considered that he now fully conceded that what he had done was wrong. She gave evidence of the impacts of his offending conduct upon her both financially and in terms of her work. I take these matters into account because I consider that the offender is aware of the broader impacts of his conduct and will continue in particular to be aware of the impacts of his conduct on his mother. I consider that to be a factor which in the circumstances of this case reduces the likelihood of further offending conduct.

20. The offender also tendered a letter which he wished to be communicated to the victim and her parents. It was a document which could not be so communicated because of the bail conditions he was subject to, but conveyed an apology to the victim and her family in terms which indicated remorse for his conduct and some insight into the effect of his conduct, not only on the victim, but also on her parents.

21. Also tendered was a psychology report from Dr Cristian Torres, a clinical psychologist with whom the offender had undertaken five face-to-face sessions. The report indicated that the counselling had involved cognitive behaviour therapy interventions relating to the offending behaviour, counselling so as to permit him to recognise the impact on his victim of his behaviour, and education relating to sexual conduct. He is assessed as being a low risk of harm to others and having good prospects for the future.

22. There were also two references, one from a friend of both the victim's mother and the offender's mother for over 30 years. The other is from the partner of the offender's father. Both attest to the good character of the offender. There is also a reference from Dr Peter Ragg, the offender's General Practitioner, who has provided additional counselling to the offender.

23. Section 133C of the Crimes (Sentencing) Act provides that a court is entitled to give more weight to the purpose of promoting the rehabilitation of the young offender than the various other purposes of sentencing set out in s 7 of that Act. I have taken into account the additional relevant considerations referred to in s 133D of the Crimes (Sentencing) Act.

24. I have indicated my view of the objective seriousness of the offending conduct earlier in these reasons. I accept that the offending conduct has had significant effects upon the victim and that those affects are likely to continue.

25. I take into account the offender's early plea of guilty.

26. The subjective matters which arise from the evidence are:

a) remorse for the conduct expressed shortly after the conduct and since that time;

b) some insight into the effects of his conduct on the victim;

c) steps taken to rehabilitate himself through counselling and education that would reduce the risk of any further offending conduct of this nature;

d) very significant social factors likely to reduce the likelihood of further offending; and

e) a low risk of further offending conduct of this nature or of general reoffending.

27. Because of these factors I am not satisfied that there is no penalty other than a sentence of imprisonment that is appropriate. In other words, I am satisfied that a sentence other than a sentence of imprisonment is appropriate. I consider that the purposes of sentencing will be given effect to by the making of a Good Behaviour Order with a community service condition.

28. Counsel for the offender, Mr M Kukulies-Smith, also submitted that in this case the Court should determine under s 9(2) of the Crimes (Child Sex Offenders) Act 2005 (ACT) that including the offender of the register created by that Act was inappropriate. In reaching the conclusion, 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. Having regard to those 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 conduct and the low risk of further offending, no useful purpose would be served by including him on that register.

1. OE is convicted of the offence and ordered to sign an undertaking to comply with his Good Behaviour Obligations under the Crimes (Sentence administration) Act 2005 for a period of two years.

2. The Good Behaviour Order includes the following conditions:

a. A probation condition that probation be subject to the supervision of the Director-General or her delegate and to obey all reasonable directions of that person.

b. A community service condition that you perform 100 hours of community service within the period of 12 months

3. The Court notes that OE is not a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) because the Court considers that including the offender on the register is inappropriate in the circumstances of the case.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.