R v Goboly [2016] ACTSC 322

1. Brandon Charles Goboly be convicted of committing an act of indecency on the victim, being a person under the age of 16 years.

2. Brandon Charles Goboly be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months from 24 October 2016.

3. Brandon Charles Goboly be convicted of engaging in sexual intercourse with the victim, being a person under the age of 16 years.

4. Brandon Charles Goboly be sentenced to 12 months imprisonment, commencing on 20 August 2016, to take into account pre-sentence custody.

5. That sentence be suspended from 24 October 2016 for 12 months.

6. Brandon Charles Goboly be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act for a period of 12 months from 24 October 2016, with the following conditions:

(i) a probation condition that he be under the supervision of the Director-General or her delegate for 12 months and obey all reasonable directions of the person supervising him;

(ii) a condition that he submit himself for assessment for suitability of the ACT Corrective Services Adult Sex Offender's Program and, if found suitable, undertake the Program.

7. Brandon Charles Goboly be convicted of committing a second act of indecency on the victim, being a person under the age of 16 years.

8. Brandon Charles Goboly be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act for four months, commencing on 24 August 2017.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - serious offences - multiple offences - victim aged 13 years old - committing an act of indecency on a person under the age of 16 years - sexual intercourse with a person under the age of 16 years - consideration - subjective circumstances - prospects of re-offending - remorse - guilty plea - suspended sentence - Good Behaviour Order - Adult Sex Offenders Program

Crimes Act 1900 (ACT), ss 55(2), 61(2)

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 13, 33, 33(1)(za)

Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43

Clarkson v The Queen (2011) 32 VR 361

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

Gillard v The Queen [2016] ACTCA 50

Gordon (1994) 71 A Crim R 459

Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

Martin v The Queen [2013] VSCA 377; 238 A Crim R 449

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

McKenna v The Queen (1992) 7 WAR 455

OH v Driessen [2015] ACTSC 148

R v Barker [2014] ACTSC 115

R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1

R v BNS (No 2) [2016] ACTSC 145

R v CC (No 2) [2016] ACTSC 220

R v CV [2013] ACTCA 22

R v Harrington [2016] ACTCA 10; 11 ACTLR 215

R v Hunt [2016] ACTSC 52

R v Kamara [2016] ACTSC 294

R v McGrail [2016] ACTSC 142

R v NCE [2016] ACTSC 111

R v NF (No 1) [2016] ACTSC 216

R v PM [2009] ACTSC 24

R v QI (No 2) [2016] ACTSC 188

R v Ridley [2014] ACTSC 382

R v Scott [2009] VSCA 20; (2009) 22 VR 41

R v Sheedy [2016] ACTSC 256

R v Smith [1964] Crim LR 70

R v Sulemanov [2007] VSCA 288

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Shorter Oxford English Dictionary (Clarendon Press, 6th ed, 2007)

Legal Aid ACT (Accused)

1. On 23 April 2015, the accused, Brandon Charles Goboly, met the complainant, QQ, and her mother at a sporting social club in Canberra.

2. QQ and her mother regularly attended the club and made friends with other regular attendees, which is how Mr Goboly came to meet them.

3. A relationship between Mr Goboly and QQ developed, though he was then 20 years old and she was then 13 years old.

4. Some days later, they met at Garran shops and engaged in sexual activity.

5. Later, in December 2015, they met again at the social club and Mr Goboly kissed QQ, forcibly introducing his tongue into her mouth.

6. As a result of a complaint to police, Mr Goboly was arrested in January 2016 and charged with two counts of committing an act of indecency with a person under the age of 16 years and one count of sexual intercourse with a person under the age of 16 years. He has pleaded guilty to these offences and I must now sentence him for them.

7. Sexual intercourse with a person under the age of 16 years is an offence against s 55(2) of the Crimes Act 1900 (ACT), the maximum penalty for which is 14 years imprisonment.

8. Committing an act of indecency with a young person under the age of 16 years is an offence prohibited by s 61(2) of the Crimes Act and it attracts a maximum penalty of 10 years imprisonment.

9. While these maximum penalties show that the offences are to be regarded as serious, the sentence must be proportionate to the precise facts as the offences cover a wide variety of acts and circumstances. See Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 451-2.

10. As noted above, Mr Goboly met QQ and her mother when they attended the social club on 23 April 2015. Mr Goboly and QQ exchanged mobile telephone numbers and later exchanged a very large number of short message service (SMS) texts, including messages regarding their respective ages. Initially, Mr Goboly's messages were polite and about general topics, but, on 25 April 2015, when QQ suggested they "meet up soon", Mr Goboly asked what they would do. After some further messages he said "seriously what would we do go to a park? Or sexual things baha or chill and chat then bairn lol!" to which QQ answered "probably all of those things tbh hahaha."

11. On 26 April 2015, QQ invited Mr Goboly to meet her at Garran shops. The conversation included the following:

Goboly: and then do what? Is your mum at your house

QQ: yeah she is but there's heaps of private places around the shops

Goboly: private places to do what?

QQ: whatever you want ;)

Goboly: Hahaha really now hey ;)

Goboly: Would you actually chill with me if I came?

QQ: Of course I would

Goboly: Well what if I said I was busing to Woden right now haha?

12. Later in the evening of 26 April 2016, QQ and a friend met with Mr Goboly and walked to Garran shops. QQ's friend left shortly afterwards. QQ and Mr Goboly walked to a nearby underpass, sat on a wall, and talked for about 20 minutes.

13. While initially they did not sit closely, Mr Goboly later moved closer to QQ and started rubbing the inside of QQ's left thigh. They then started kissing. Mr Goboly then stood up pulling QQ to her feet with him and started kissing and touching her on both breasts. This was the first offence of committing an act of indecency on a person under the age of 16 years.

14. Mr Goboly then pushed his right hand down the front of QQ's jeans and under her underpants, touching her vagina. He inserted his fingers into her vagina and proceeded to move them in and out for about two minutes. This was the offence of engaging in sexual intercourse with a person under the age of 16 years.

15. Mr Goboly removed his fingers from QQ's vagina but they continued kissing for a few more minutes. QQ, however, felt that things between them were moving too fast. About 7:00pm, they walked off in different directions.

16. QQ's mother had become concerned that her daughter had not returned home and she called the police. When QQ returned home, she noted that the police were at her home. Mr Goboly sent an SMS message to QQ, "well it was really lovely to spend the time we did tonight together haha" and QQ replied, "hahaha yes it was ;) the police are at my house though".

17. On 17 December 2015, QQ, who was by that time 14 years old, again attended the same social club with her mother. She sent a message to Mr Goboly, "are you at the club?" and he replied that he was not but was at another club. Twenty minutes later, Mr Goboly arrived at the social club, which he told QQ by text message. Shortly after, QQ and her mother met Mr Goboly and another male friend accompanying, but they did not stay together.

18. About 30 minutes later, Mr Goboly sent a message to QQ, suggesting that she "go to the toilet right now", but she said she could not and invited him to come to where she was.

19. Mr Goboly then sent a message to QQ stating, "I wanna kiss you though I can't with here [sic] there I shall have to bail as soon as I made contact with them lips imma have to go."

20. Shortly afterwards, Mr Goboly and his friend met QQ and her mother in the smoking area of the club and greeted them. QQ and her mother left to go inside and Mr Goboly and his friend then walked to where QQ and her mother were sitting inside and they sat with them. Mr Goboly later told QQ that he was leaving the club and asked her for a hug. She agreed, got up from her chair and took a step forward to hug him. He grabbed her with both of his hands around her waist, pulled her in towards his body and kissed her on the lips. QQ was shocked about what happened and tried to keep her mouth shut but she felt Mr Goboly's tongue inside her mouth. This was the second offence of committing an act of indecency on a person under the age of 16 years.

21. QQ's mother saw what was happening and pulled Mr Goboly off saying, "What are you doing?" Mr Goboly started to apologise, at which time Mr Goboly's mother approached the table and told him to go home because he was "drunk".

22. There were some further text messages between QQ and Mr Goboly, which ended with Mr Goboly stating "your [sic] sexy and I love you".

23. Shortly afterwards a public announcement requested that all the persons under the age of 18 leave the premises and QQ and her mother left. QQ was seen to be crying and visibly upset and the receptionist followed her and spoke to her. QQ then disclosed details about what had occurred to her, as did a security guard who had also been advised of it by a member of the bar staff who had seen what had happened.

24. QQ's mother arranged for QQ to be collected by a family friend and she went back into the club, where she was confronted by Mr Goboly's mother and another male, believed to be her elder son, who apologised for Mr Goboly's actions.

25. Mr Goboly sent some further messages to QQ expressing that he was attracted to her and later asked whether he was in trouble, but she did not reply.

26. The following Monday, QQ and her mother attended Woden Police Station and reported the matter to police. Police later arrested Mr Goboly and he was taken to the City Police Station, where he was interviewed. He admitted inserting his finger into QQ's vagina in April. He said that, although QQ wanted more sexual activity, he had told her that "nothing like that was going to happen" because of the difference in their ages.

27. He also said that, while he admitted that, in the December incident, he gave her a hug, it was QQ who kissed him.

28. He said that he felt like a victim. When police read the content of messages he had sent to QQ he said he "felt physically ill". He said to police, "I'm disgusted with myself."

29. Mr Goboly appeared in the ACT Magistrates Court on 13 January 2016.

30. He was remanded in custody but granted bail with strict conditions on 13 March 2016. The agreed statement of facts noted that he had been in custody for 65 days in relation to these offences.

31. On 17 February 2016 he pleaded not guilty to the charges. After a number of adjournments, he pleaded guilty on 7 July 2016 and was committed to this Court for sentence.

32. There is no doubt that sexual offending with minors is a serious offence and, indeed, the maximum penalties provided reflect community abhorrence of such offences. See R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at [6]- [20].

33. Consent in such cases is not a matter of mitigation although lack of consent may be a matter of aggravation: Clarkson v The Queen (2011) 32 VR 361. In that case, the Court published a summary of its decision at the beginning of its reasons and this is very helpful to crystallise the issues. The Court said at 364-5; [4]-[7]:

1. We have concluded that a child's consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child's consent cannot be established (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender).
2. 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.
3. 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.
4. 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.

34. In this case, there was a significant age difference of approximately seven years, Mr Goboly being 20 and QQ being 13 and 14. That is a significant factor. It is, however, not a circumstance where the perpetrator was substantially older than the victim, as regrettably seen in this Court from time-to-time, and it does seem to me to be close to, if not included, in one of those exceptional circumstances to which the Court referred in R v Clarkson at 365; [7].

35. Nevertheless, there is no suggestion that Mr Goboly misused his age or coerced QQ into the sexual activity. Indeed, it appears that, at least until the December incident, she was a willing participant. Even in the December incident, she evinced a degree of affection for Mr Goboly.

36. There was no question of Mr Goboly being in a position of trust: see OH v Driessen [2015] ACTSC 148 at [138]- [144]. There was, apart from the significant age difference, which is relevant, no evidence that Mr Goboly took improper advantage of QQ. None was suggested by the Crown and there is no suggestion the sexual activity in April was other than motivated by affection.

37. The act of sexual intercourse was a serious invasion of QQ's body but, perhaps, not as serious as penile-vaginal intercourse would have been.

38. Sexual intercourse with a person under the age of 16 years is always a serious offence. There is, in effect, a presumption of harm, unless rebutted by an offender. See Clarkson v The Queen at 375; [52]. Nevertheless, it seems to have been a relatively brief act of intercourse.

39. The first act of indecency was Mr Goboly kissing and touching QQ's breasts. That is clearly an act of indecency and a relatively serious one, though not as serious as touching the genitals. Kissing may be an act of indecency, especially if it is full lips to lips, but, while not trivial, it is not the most serious act of indecency: R v Ridley [2014] ACTSC 382 at [36]. The introduction of Mr Goboly's tongue into QQ's mouth in the December incident did seem to me to make it somewhat more serious, but still a relatively less grave offence.

40. It was accepted that Mr Goboly's behaviour was not predatory. An allegation of predatory behaviour is one of the allegations, like a breach of trust, which is often made in submissions rather too readily without a careful analysis of what is involved. It is almost a synonym for deliberate.

41. Predatory behaviour is, in fact, quite serious behaviour. The Shorter Oxford English Dictionary (Clarendon Press, 6th ed, 2007) at 232, defines it as:

of, pertaining to, or involving plunder, pillage or depredation; ruthlessly acquisitive, rapacious, exploitative; sexually rapacious or exploitative; of business practice: unfairly competitive or exploitative, esp so as to facilitate takeovers.

42. In R v Scott [2009] VSCA 20; (2009) 22 VR 41 at 60; [97]- [98], Neave JA, with whom Redlich JA agreed, Robson AJA making comments to the same effect, said:

1. In appellate decisions, the word has generally been used to describe offences against multiple complainants involving some element of premeditation, although reference has also been made to the vulnerability of the victim, the existence of a relationship of trust and/or the fact that the offence occurred in a context where the victim expected to be safe. In R v Fuller-Cust, the appellant was an Aboriginal man with a very difficult childhood who had committed multiple sexual offences against two victims. Eames JA said that:

[t]he applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who is likely, if free, to prey on members of the public at large ... The applicant's attacks were upon persons with whom he had what he considered to be a relationship (using the term very broadly) and [were] triggered by factors deeply embedded in his past, coupled with a fear of rejection.

1. Although the word 'predatory' is generally used to describe more serious offending than the offence committed by the applicant in this case, it is an adjectival description of conduct, rather than a legal term of art. It is unfortunate that his Honour used the expression in this case, but in the context in which he did so it is apparent that he meant that the offence was 'audacious' and involved a breach of trust ...

43. The term predatory is often used in contrast to "opportunistic", as in Martin v The Queen [2013] VSCA 377; 238 A Crim R 449 at 475; [109]. It has, as is clear from CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 at 490; [172], an implication of sexual exploitation, and as suggested in McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 at 146; [75], behaviour that renders the perpetrator a danger to the community.

44. Thus, it is possible, but sufficiently unlikely that it would need careful scrutiny of the facts, that it can be constituted by conduct in relation to one victim. It is not ordinarily behaviour, especially with adults, occurring within a relationship of affection, especially an ongoing relationship, nor where the acts are genuinely consensual, but where the victim is a child, these characteristics may well often not be inconsistent with predatory behaviour where the offender seeks merely sexual gratification from minors rather than an expression of affection. In any event, the asserted affection in such a case will often be a perversion of real affection where there is a great age gap.

45. Thus, it will not be enough to demonstrate predatory behaviour because the conduct is deliberate and for sexual gratification; this will be so when consenting adults engage in affectionate sexual conduct. It will, however, be a necessary though not sufficient condition for predatory behaviour.

46. Having carefully considered the facts in this case, I am not satisfied that the conduct of Mr Goboly was predatory.

47. I am required by s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) to have regard to current sentencing practice. In this case, I have regard to what I said in R v BNS (No 2) [2016] ACTSC 145 and the cases referred to there at [59].

48. I have also had regard to other recent decisions, including R v NCE [2016] ACTSC 111, R v QI (No 2) [2016] ACTSC 188, R v CC (No 2) [2016] ACTSC 220, R v Sheedy [2016] ACTSC 256, R v Hunt [2016] ACTSC 52, and R v Kamara [2016] ACTSC 294.

49. While, of course, no other sentences are precedents (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57]), these are helpful to assess the sentencing practice to which, by statute, I am required to have consideration and also the range and approach of courts to sentencing for these offences.

50. Particular reliance was placed by Ms K Marson, counsel for Mr Goboly, on R v Barker [2014] ACTSC 115, where a young man was sentenced for 11 counts of sexual offending. These included one count of possessing child pornography, and three counts of using a child for the production of child pornography, to which he pleaded guilty, and all of which involved Mr Barker, then 22 years old, taking sexually explicit photographs of his girlfriend, who was 15 approaching 16 at the time of the offences.

51. He was then found guilty at trial of two counts of committing an act of indecency on a person under the age of 16 years and five counts of engaging in sexual intercourse with a person under the age of 16 years. The offending occurred over five months.

52. The Court found (at [4]), that the offences occurred "within the context of a boyfriend/girlfriend relationship" and that Mr Barker "held genuine feelings for the victim" who, to him, "appeared ... that she was mature".

53. Mr Barker had no prior convictions. He demonstrated "limited remorse", but the Court (at [8]) was "unconvinced that [he] fully [appreciated] the seriousness of [his] actions". He was found to be "unlikely to re-offend".

54. Convictions would have an impact on his current (unspecified in the reasons for sentence) employment and on the prospects of overseas travel with his current partner. Mr Barker co-operated with police in the investigation of the offences which facilitated the administration of justice.

55. Mr Barker also tendered "numerous testimonials - which [spoke] of [his] good character". He pleaded guilty but at "a late stage". He was assessed as having "good prospects of rehabilitation". The Court held (at [15]), that registration on the Child Sex Offender's Register would "satisfy the requirements of general deterrence".

56. With respect to his Honour, I cannot accept that last proposition. It is inconsistent with R v CV [2013] ACTCA 22 at [44], where registration on the Child Sex Offender's Register was recognised as having consequences but that it was not extra-curial punishment and that it was not a matter of general deterrence; it could however permit the Court to give "less weight to deterrence and punishment". The distinction is subtle but, in my respectful view, is important, as it is very rare where the inevitable consequences of a conviction provided for by statute can be regarded as part of the general deterrence required to be considered on sentencing, as opposed, for example, as in R v CV, to interfering with an offender's rehabilitation such that it may "outweigh the requirements of punishment, denunciation and deterrence, both personal and general".

57. The Court in R v Barker then proceeded to convict Mr Barker for each of the offences but, without express explanation, imposed a series of Good Behaviour Orders under s 13 of the Crimes (Sentencing) Act; that is without imposing any sentence of imprisonment which would then have been suspended.

58. There are some significant differences between that case and this case. There was, in R v Barker, clearly a strong relationship of affection described (at [7]) as "a committed boyfriend and girlfriend relationship" between the victim and Mr Barker that had lasted for some time. The victim in R v Barker was a willing and, indeed, described to me by the Crown prosecutor, Ms S McMurray, as an "enthusiastic participant". Mr Barker had suffered adverse impacts on his employment and financially as a result of the laying of the charges. There were, as noted above (at [55]), numerous character references which appeared to attest to Mr Barker's positive good character (Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 at 184; [45]- [47]).

59. While the age difference was similar, the sexual offending did not occur while the victim was 13, as is the case here, but when she was "15 approaching 16."

60. My attention was drawn by the Crown to what Elkaim J said in R v Kamara at [44], namely:

I think it very important to emphasise that simply because a complainant is almost 16 years of age that there should not necessarily be any different treatment in cases where the complainant is a little younger.

61. With respect, his Honour is correct but I do not apprehend that his Honour was saying that the age of the victim is irrelevant. The point being made by his Honour is well explained by Vincent JA, with whom Redlich and Kellam JJA agreed, in R v Sulemanov [2007] VSCA 288 at [20], as follows:

There is no substance in the complaint that H was aged nearly 16 years at the time of the offence and that the sentencing judge placed excessive weight on the age difference between the appellant and H. The age of the victim of such an offence cannot, in my opinion, of itself constitute a mitigatory factor for sentencing purposes, although it may, in some situations be seen to aggravate its commission. The offence was created by Parliament to provide protection to young persons. That protection is not to be regarded as becoming less significant simply because the young person is approaching his or her sixteenth birthday. On the other hand, the younger, more vulnerable or less mature the victim is, the more heinous is the perpetrator's behaviour...

(emphasis added).

62. Thus, similar to the position with consent, the closeness to which the victim is to 16 years is no mitigation, but the younger age, or vulnerability, of the victim may aggravate an offence. Thus age is relevant, but in R v Barker, that the victim was 15 approaching 16 did not mitigate the offence, but made it not more serious as, in this case, is the position with a 13 and 14-year-old victim.

63. A Pre-Sentence Report was prepared and from that document and the submissions of counsel I make the following findings.

64. Mr Goboly was born in Canberra about 21 years ago and has three siblings who all live in Canberra. He had a difficult childhood, which he attributed to his parents' separation when he was seven years old.

65. He has, however, lived with his mother and one older brother since his release on bail, but that is not a satisfactory arrangement as there is a conflict between him and his mother. His mother and a sister, however, were present in Court during the sentencing proceedings.

66. His father lives interstate and so was not in Court, but their relationship is supportive and "pro-social".

67. Mr Goboly has been in a relationship with his present partner for approximately five years. There have been periods of separation due to conflict, but it now appears to be a stable and satisfying relationship. She also was present in Court during the sentencing proceedings. Mr Goboly would like to work towards living with his partner, although he has considered moving interstate to be close to his father.

68. Having completed his Year 10 School Certificate, Mr Goboly left school when he was 17 and completed a number of hospitality vocational courses.

69. He was employed from April 2013 at a Canberra based social club but lost his employment as a result of being charged with these offences. He has since then been unemployed and in receipt of Centrelink income support. The fact of the loss of his employment as a result of these charges is a relevant factor in sentencing.

70. Mr Goboly hopes to obtain employment in the future. That has been difficult until now because until 23 September 2016, he was not permitted under his bail conditions to access the Internet, even to conduct job searches. That condition was removed on 23 September 2016.

71. He did, however, manage to obtain some employment through his mother, though it was only intermittent work. I accept that this is further evidence to show that Mr Goboly has good prospects of rehabilitation. It certainly is to his credit. He also advised that the work made him feel better about himself.

72. Mr Goboly told the author of the Pre-Sentence Report that he rarely consumes alcohol, but when he does he tends to "binge".

73. He has used a variety of illicit substances since he was 12, including cannabis daily, spending between $80 and $150 on cannabis per week. When he was 18, he started using methylamphetamine and was, within a year, using it by himself. At the time of the offending, he was using three to five points every one to two days, costing him about $300 each time.

74. He said that, when he was committing the offences, he was under the influence of both alcohol and amphetamines. This, he said, meant he was "not himself" and lowered his awareness of what is normal and acceptable behaviour. Since his arrest and incarceration, however, he has ceased using both alcohol and methylamphetamine. He has been subject to six urinalysis drug screen tests and no illicit drugs have been detected on any of these occasions. Ms Marson told me that he was proud that he had, to the date of sentencing completed 281 days without consuming any drugs or alcohol. That is impressive and he is right to be proud of his behaviour.

75. Mr Goboly has also stopped spending time with his substance abusing friends, but he has a limited number of pro-social supports. This has, unfortunately, led to some boredom and his impending sentencing has led him to be hesitant about making future plans.

76. Mr Goboly suffers from depression and anxiety. He had been previously seen by a school counsellor when he was 15, attending five sessions. Mr Goboly has acknowledged that he may benefit from engaging with a psychologist, but has not sought any professional supervision to date and, indeed, has suggested to the

Pre-Sentence Report author that he has a minimal need for any mental health support. I was told that his anxiety was exacerbated by his period in custody, especially as he was a relatively young man with no prior contact with the criminal justice system. This period had a significant impact on him, as the period of abstinence from drugs and alcohol since then shows, gave him time to reflect on his behaviour. It is not clear, however, why he has not sought professional help for his depression. He has, however, clearly reflected on his behaviour and he acknowledges that his conduct was wrong. Further work will, however, help him address his depression and anxiety and employment, which hopefully he will obtain soon.

77. Mr Goboly has no prior criminal record. He is entitled to some leniency as a result. See R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at 234; [113].

78. He accepted that his offending was due to the use of alcohol and drugs, but he did appear to take responsibility for his offending. He tended, however, to impute some blame to QQ, but he was able to articulate the age of consent and why it exists, showing a deal of insight into his responsibilities as an adult. He acknowledged that his conduct was wrong.

79. Mr Goboly was subject to stringent bail conditions and, as noted above (at [70]), these limited his opportunities to seek employment. Strict bail conditions, especially when there is satisfactory compliance can be a relevant factor in sentencing: R v NF (No 1) [2016] ACTSC 216 at [79]. I take this into account.

80. Mr Goboly has been assessed as at a medium risk of general re-offending and as at a moderate to low risk of re-offending.

81. Mr Goboly has been assessed as suitable for the SMART Recovery Program. I have described the Program in R v McGrail [2016] ACTSC 142 [78]-[80]. He has also been assessed as suitable for the Adult Sex Offender Program and the Cognitive

Self-Change Program; both Programs conducted by ACT Corrective Services.

82. I did not have a Victim Impact Statement, but as pointed out in R v Clarkson, the harm likely to be suffered by a victim from offences such as this is well known to the courts and is to be assumed, although the actual details of the harm is helpfully described in many victim impact statements and will not necessarily be the same with all offenders.

83. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005. In this case, general deterrence is clearly a significant issue given the age of the victim and the repetition of the offending.

84. Despite the somewhat pessimistic assessment of Mr Goboly's risk of re-offending, I do note that he has no prior record and he appears to have become abstinent from further drug and alcohol use. He has the support of his family and has been able to obtain some employment. If he can maintain these matters, then he is at much lower risk of re-offending, and I accept that his prospects of rehabilitation are good.

85. I note that he has also been employed, although the convictions for these offences which I must enter will limit somewhat his further employment opportunities. Nevertheless, it may be that with the support of his father he will be able to obtain further employment which will be of significant value to his reform and, of course, to the community.

86. I note that his of plea of guilty which, although not entered at the earliest opportunity, was entered at a relatively early time and in the Magistrates Court. He is entitled to a significant discount under the statute as a result.

87. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act 2005. So far as I know them, they are set out in these reasons.

88. I accept that Mr Goboly is remorseful. His abstention from drugs and alcohol is a potent proof of that. His somewhat ambivalent understanding of the dynamics of the victim's part in the offending, particularly her apparent encouragement, is, in my view, in part due to his immaturity.

89. Thus, as the Court in Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43 at 53; [34], explained, young offenders, being immature, are "more prone to ill-considered or rash decisions". Thus, they "may lack the degree of insight, judgment [sic] and self-control that is possessed by an adult." Further, they "may not fully appreciate the nature, seriousness and consequences of their criminal conduct".

90. I rely, too, on what was pointed out in Gordon (1994) 71 A Crim R 459 at 469, that immaturity has an important role to play, even with an offender who is over the age of 18, though there still remains a difference between the relevant regimes for an adult and a young offender, as to which, see McKenna v The Queen (1992) 7 WAR 455 at 468.

91. As I explained in R v PM [2009] ACTSC 24 at [54], an approach approved by the Court of Appeal in R v CV, the Court must consider rehabilitation as an important purpose of sentencing for young offenders.

92. Indeed, the courts have long recognised the potential for young offenders to be redeemed and rehabilitated. As the English Court of Criminal Appeal commented in R v Smith [1964] Crim LR 70:

in the case of a young offender there can be rarely any conflict between his interests and the public's. The public have no greater interest than that he should become a good citizen. The court would take a risk and allow his release.

93. Nevertheless, I note that ordinarily a sentence of imprisonment will be imposed for offences of engaging in sexual intercourse with a person under the age of 16 years. It must be an exceptional situation where that does not apply. I do not consider that this is such an exceptional case.

94. So far as the offences of committing an act of indecency are concerned, I do not consider that they are so serious as to warrant a sentence of imprisonment in all the circumstances.

95. Because there are multiple offences I am also required to consider other principles applied by the courts.

96. I have considered whether the sentences should be partly or wholly concurrent, because, for example, they are part of the same enterprise or otherwise. That is relevant in this case because the initial contact in April 2015 was part of the one incident, although two discrete offences. See Gillard v The Queen [2016] ACTCA 50 [15]-[19].

97. I then reviewed the sentences to be imposed and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing, leaving open the realistic prospect of reform and the achievement of Mr Goboly's goals. Where necessary to achieve this, I have adjusted the cumulation and concurrency of the individual sentences.

1. I convict you of committing on 26 April 2015 an act of indecency on the victim, being a person under 16 years.

2. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months from today, 24 October 2016.

3. I convict you of engaging in sexual intercourse on 26 April 2015 with the victim, being a person under the age of 16 years.

4. I sentence you to 12 months imprisonment, to commence on 20 August 2016, to take account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.

6. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act for a period of 12 months from today, with the following conditions:

(iii) a probation condition that you be under the supervision of the

Director-General or her delegate for 12 months and obey all reasonable directions of the person supervising you;

(iv) a condition that you submit yourself for assessment for suitability of the ACT Corrective Services Adult Sex Offender's Program and, if found suitable, undertake the Program.

1. I convict you of committing on 17 December 2015 an act of indecency on the victim, being a person under 16 years.

1. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act for four months, to commence on 24 August 2017, that is to be cumulative as to two months on the Good Behaviour Order made in respect of the offence of engaging in sexual intercourse on 26 April 2015.

99. Mr Goboly, that is the formal legal order that I have made, but I am required to explain it to you. What I have indicated is that the committing of acts of indecency were not so serious that they justified a term of imprisonment. They were still serious and they warrant punishment. What I have done is made a Good Behaviour Order, which is an order that requires you not to commit any further offences punishable by imprisonment for the period of that Good Behaviour Order.

100. Given that the act of indecency of the kissing in April was really part of the same incident as the sexual intercourse, which was the digital penetration, I have made that wholly concurrent. Engaging in sexual intercourse with a 13-year-old is a very serious offence, and although in the case of Barker there were particular circumstances, and I do not regard that as a case that particularly helps me, it still justifies a sentence of imprisonment. However, I do not require you to spend any more time in full-time custody as a result of that. Your sentence is suspended for a period of 12 months from today.

101. That is a little longer than the period left in the sentence, so during that 12 month period, if you commit any further offences punishable by imprisonment, then you can be brought back to the Court and that whole balance of 12 months can be imposed as formal imprisonment.

102. There are two conditions that I have made. One is a probation condition, which is a supervision condition that you be under supervision of the Director-General; that will be an officer of Corrective Services. You will be allocated a parole officer and you will be required to speak with that person probably weekly for a period of time, then fortnightly, and so on.

103. Probation has two aspects to it. One is a degree of control; that is there for an officer of the government to try and ensure that you do not commit any further offences. Secondly, it is also someone who is independent and has knowledge about resources and so on. So if things are getting tough for you, if you are not travelling well and things happen, such as if you go back to using drugs, then there is someone you can talk to who is independent but knows of agencies that might assist you or provide support to ensure that you get back on the straight and narrow, and that is important.

104. The second condition is a condition that you undertake the Adult Sex Offender's Program. I agonised for some time over that, because, in a sense, you will then be in a group with other people who are sex offenders. But it seems to me that at your age and stage of life it is really important that you get an understanding of the dynamics of sex offending, and that will prevent any further improper activity by you.

105. The final offence, in December, exhibited a lack of consent, so QQ says, and that has been accepted by me, and therefore I have extended the Good Behaviour Order by two months, so that it is now, in effect, a 14 month Good Behaviour Order. I am sure that you now have a better understanding of what you did. The short, sharp shock, although 65 days you probably think in custody was not short, has obviously brought you to your senses. You now have an opportunity, I hope, to renew your relationships with your mother and your current partner and develop them, and perhaps move to where your father is living, if that is still what you so desire. I certainly hope you obtain some gainful employment as well.

106. The registration on the Sex Offender's Program will be difficult for you, but the obligations there are not impossible. This is a mark against your character, and that can be problematic, but the obligations are not terribly difficult, as long as you understand what they are and comply with them. Do not breach those obligations; for instance, if you do move interstate to where your father resides, then you need to tell someone at the Sex Offender's Register about that and inform them of your new address, and have the matter transferred to the State where you would be living. A breach is regarded seriously and often will be visited by imprisonment for a breach of that obligation. So you need to understand your obligations and comply with them. It can be easy to forget about those.

107. You are here in the Court, a big court, a major court, facing a long period of imprisonment. However, I have no doubt that you understand that what you did was wrong, that you have turned your face against that kind of activity and I have every expectation that you will not be seen in the courts again, certainly not the criminal courts. I hope that the opportunity I have given you by simply making a relatively low level Good Behaviour Order will give you the opportunity to do that.

I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.