R v FI [2017] ACTSC 190

[2017] ACTSC 190

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - engaging in sexual intercourse with a person above the age of 10 years but under the age of 16 years - female offender - plea of guilty - apparent consent - offender 18 years and two months old - good behaviour order

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - whether appropriate to make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) where a conviction a registrable offence under the Crimes (Child Sex Offenders) Act 2005 (ACT) - offender assessed at a low risk of reoffending - potential impact of a conviction on rehabilitation and employment - potential impact of a conviction on the offender's ability to be involved in her child's curricular and extracurricular activities

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

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), s 17

Crimes (Child Sex Offenders) Act 2005 (ACT), ss 6(1), 9(3), 55(2)

R v EO [2017] ACTSC 138

R v CV [2013] ACTCA 22

Legal Aid ACT (Offender)

1. The offender, who is now aged 20, has pleaded guilty to one count of sexual intercourse with the young person. That is an offence against s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty is 14 years imprisonment.

2. The offender first appeared in the Magistrates Court on 2 November 2016. The offender pleaded not guilty. The matter was then adjourned until 11 January 2017. Following a number of adjournments, during which the brief of evidence was provided, the offender entered a plea of guilty and was committed to the Supreme Court for sentence. While the plea of guilty was not at the earliest stage I treat it as a relatively early guilty plea.

3. The offender and a young person who I will refer to as the victim met on Facebook in early 2015. The offender and victim had conversations via Facebook including discussions in relation to their difficulties at school. In February 2015 they met in person. The offender and the victim maintained contact with each other and the victim regularly visited and stayed at the offender's residence. On 9 May 2015 the offender and the victim commenced an intimate relationship. The statement of facts is not clear on what that involved. On a date between 3 July 2015 and 5 July 2015 the victim and the offender were in the offender's bedroom and the subject of sexual intercourse was discussed. While it is an agreed fact that the victim felt uncomfortable about having sexual intercourse with the offender given the age difference between them, the victim gave apparent consent to engage in sexual intercourse. The offender was not aware of any reluctance on his part. The use of condoms was discussed but it was agreed that one would not be used. The victim and the offender then engaged in unprotected penile-vaginal sexual intercourse. As a result of the sexual intercourse the offender became pregnant. In mid-August the victim told the offender that he no longer wanted to be in a relationship with her. On 27 August 2015 the offender advised the victim that she was pregnant. It is clear that the communication of that fact lead to considerable upset on the part of the victim.

4. The offender gave birth in April 2016. DNA analysis demonstrated that the child was the daughter of the victim. On 20 April 2016 the offender participated in a recorded interview and made admissions in relation to sexual intercourse. At that stage she asserted that she thought he was 16 years old at the time although it is now accepted that she knew that he was under age.

5. Two victimimpact statements were tendered. I infer from the content of those that the victim ceased to attend school at some time after either the offence or the disclosure of the pregnancy. The victim also indicates that he has suffered a lot of stress and anxiety and has found it difficult to build stronger relationships with people. He is concerned about any financial obligations that he may incur as a result of the offending conduct.

6. His mother also provided a victimimpact statement which records not only the impact on her but concern at the fact that her son has not completed school and the financial implications of him not completing his school education. It also expresses concerns about his obligation to support the child conceived as a result of the offence.

7. The pre-sentence report discloses that the offender is an only child. She described her childhood in positive terms despite being raised in a sole-parent household. She has only ever had contact with her mother and has a close supportive relationship with her. She resides in her mother's house with her young daughter.

8. The offender was in Year 12 at the time of the offence. She completed Year 12. She had some support at school due to academic learning difficulties. She described that she was the victim of ongoing bullying at school.

9. She reported that she intended to pursue employment in the field of childcare.

10. She is currently on a Centrelink sole-parent pension.

11. She is assessed as having a low risk of alcohol abuse. She has had some minor use of cannabis and is assessed as having a low level of drug abuse requiring no intervention.

12. She suffers from a genetic medical condition known as Turner's syndrome. That has some effect on her and may be a factor in her need for learning support at school. However, there is no causal relationship between the genetic disorder and her offending conduct. Her mother and grandmother also have that condition. Her daughter has inherited that condition. The pre-sentence report authors make some adverse comments in relation to her attitude to the offence. It is not clear the extent to which these comments were influenced by the fact that the pre-sentence report author was provided with the AFP statement of facts which differed in important respects from the agreed facts for the purposes of sentencing. The author of the report noted that she did not express victim awareness or empathy and appeared preoccupied with the impact of the court processes on her own well-being. She was assessed using the Sexual Violence Risk 20 ('SVR-20') assessment tool as being at a low risk of further sexual offending. She was also assessed as being at a low risk of general reoffending.

14. The offender tendered a reference from her grandparents, which is very positive. She also tendered a letter from her general practitioner who describes her medical condition and describes the offender as a "charming, law abiding, well behaved girl". I do not place any weight on the suggestion in the letter that any vulnerability to exploitation had any causal relationship with the offending conduct.

15. The offender also tendered a letter dated 2002 from a clinical geneticist at the Canberra Hospital describing the nature of her genetic condition as well as that of her mother and grandmother.

16. In this case the victim was 15 years and four months old and the offender was 18 years and two months old. The sexual intercourse was apparently consensual although the apparent consent on the part of the victim masked his underlying discomfort. The offender was not aware of that. It is an illustration of the reasons why the law presumes an absence of consent.

17. The offending conduct was clearly at the low end of objective seriousness for this offence. The age difference between the parties was relatively small. They were in a relationship of some months standing.

18. The offence is very clearly a serious one having regard to the maximum penalty set by the legislature. That maximum penalty clearly reflects the need for deterrence of conduct which exploits the vulnerabilities of underage people.

19. The extent of the harm caused by the offending conduct is not clear. It is clear that it was a source of anxiety and distress to the victim. It appears that one of the sources of anxiety has been the potential for there to be an obligation to support the child who was conceived as a result of the offence. Any intention to seek support has been disavowed by the offender. I was told by counsel for the offender without objection that the victim is not recorded as the father on the birth certificate and steps have been taken so as to ensure that there is no capacity to make any claim for child support.

20. The evidence about the causal relationship between the victim ceasing school and the offending conduct is not very clear. I accept that the offending conduct is likely to have increased the victim's difficulties with school. I further accept that the offence and its consequences are likely to have longer term effects upon the victim which he was entitled under the law to be free of: R v EO [2017] ACTSC 138 at [9].

21. Counsel for the offender submitted that an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) would be appropriate. Counsel for the Crown contended that such a course would be inappropriate. Counsel for the Crown did not contend that a sentence of imprisonment was the only appropriate sentence but did contend that in the circumstances of this case it was inappropriate to make a s 17 order.

22. The principal reason why the offender sought an order under s 17 was the operation of the Crimes (Child Sex Offenders) Act 2005 (ACT). The purpose of that Act is set out in s 6(1). Sexual intercourse with a young person contrary to s 55(2) is a registrable offence in class I described in that Act. The effect of a conviction would be to require the offender to be subject to reporting requirements for a period of 15 years: s 84.

23. The offender was concerned particularly about her capacity to pursue work in the area of childcare if she was on the register. I accept that there would be very little chance that she could pursue such employment if she was on the register. I also accept that there is the potential to affect her capacity to be fully involved in her child's curricular or extracurricular activities if she was on the register. However, I note there was no particular evidence about how she would be affected in this latter respect.

24. I observe that this is a case in which entry onto the sex offenders register may have a significant burden upon the offender. In addition to the reporting requirements, the effect of being on the register may have significant consequences for the offender. The processes as required by the register appear to me to serve no useful purpose in the context of the specific circumstances of the offender. Had the offender been two months younger then she would have been under the age of 18 and the legislation would have permitted an application for an order excluding her from inclusion on the register. Having regard to the circumstances that the Court must consider under s 9(3) of the Act I would have made such an order. However because she was older than 18 years the legislation compels that she be included on the register if she is convicted. It is for that reason that counsel for the offender submitted that s 17 order with a good behaviour order would be appropriate. That would permit the offender to avoid going on the sex offenders register.

25. The issue seems to me whether or not having regard to the need for general deterrence and the factors in s 17(3) it is appropriate to make such an order. Under s 17(3) the matters to consider are:

(a) The offender's character, antecedents, age, health and mental condition: the offender is of good character. She is young. She is in good health and sound mental condition. She does suffer from the genetic disorder but is able to live a relatively ordinary life.

(b) The seriousness of the offence: the offence is a very serious one. However the offending conduct in this case is at the low end of objective seriousness for the offence.

(c) Any extenuating circumstances in which the offence was committed: I do not consider that there are any particular extenuating circumstances. I do not consider that the existence of apparent consent within a genuine relationship between two young people is an extenuating circumstance. Rather it represents the absence of an aggravating circumstance: R v CV [2013] ACTCA 22 at [23].

26. Section 17(4) makes it clear that the Court can consider anything else that the Court considers relevant. I have outlined above the fact that the offender has been assessed at a low risk of reoffending. I have also expressed above my conclusions in relation to the lack of utility of the restrictions that would be imposed by the Crimes (Child Sex Offenders) Act 2005 in the particular circumstances of the offender.

27. Section 17 does not require the offence to be a trivial one and is not confined to cases in which there are extenuating circumstances. I was initially of the view that the seriousness of the offence and the need for general deterrence was such that a conviction should be recorded along with the imposition of a good behaviour order. Having regard to the consequences that would flow from the recording of a conviction, the lack of utility of those for the protection of the community and the impact that those restrictions would have upon the future employability of the offender, I consider that an order under s 17 is warranted. I will impose under s 17 the same good behaviour order that I would have imposed had I recorded a conviction.

1. Without convicting the offender of the offence I make an order under s 17 of the Crimes (Sentencing) Act requiring the offender to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years on the following conditions:

(a) That she give security without a surety in the sum of $1000 for compliance with the order.

(b) A probation condition and a condition that during the period of the order or such lesser period as it is determined by the director-general she be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person.

(c) That the offender attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.