CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - sexual intercourse with a young person under the age of sixteen - using a child for the production of child exploitation material - no prior criminal record.

Crimes Act 1900 (ACT) ss 55(2) and 64(3)

Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7

Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; 219 A Crim R 369

Clarkson v R; EJA v R [2011] VSCA 157; 212 A Crim R 72

R v Dickerson [2016] ACTSC 337

R v Goboly [2016] ACTSC 322

Office of the ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

1. On 25 July 2017, the offender pleaded guilty to six counts in an indictment filed that day. The offender was first charged in the Magistrates Court on 14 June 2016. A further charge was added in October 2016.

2. In January 2017, the charges were committed to the Supreme Court for trial. Following negotiations, pleas were entered as stated above. Although the offender's pleas were only entered a week before the pre-trial hearing was due to take place, there is significant utilitarian value in the pleas. I also note that the victim is no longer required to give evidence. Accordingly, I think that the offender is entitled to receive a discount on his sentence.

3. The offender is also entitled to a degree of leniency because of his lack of a criminal record.

4. The six counts include five counts of sexual intercourse with a person under the age of 16 and one count of using a child for the production of child exploitation material.

5. The five counts of sexual intercourse with a young person are offences under s 55(2) of the Crimes Act 1900 (ACT). They carry a maximum penalty of 14 years imprisonment.

6. The single count of using a child for the production of child exploitation material is an offence under s 64(3) of the Act. It carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

7. The length of the respective maximum terms of imprisonment is an indication of the seriousness of these offences. It must also be noted that any sentence that I impose must take into account the particular facts of the offences committed.

8. The offender was born in 1992. He is now 25 years of age. He had a stable upbringing and enjoys positive relationships with his parents, siblings and a stepfather. The offender is of Aboriginal heritage and is close to his Aboriginal grandmother.

9. The offender completed year 12. In his teenage years, the offender became interested in computer games. He also took part in leadership camps within his Aboriginal community group.

10. In October 2013, the offender began working at a fast-food outlet as a full-time assistant manager. He apparently found the job difficult and turned to alcohol to combat his stress. The offender told the authors of the pre-sentence report that, at the time of his offending, he was drinking so much after work that he had little recollection of his behaviour.

11. The offender has since reduced his alcohol consumption, restricting it to social occasions on weekends.

12. The offender now works in his mother's business and is enrolled in a Certificate III in Business Administration.

13. The offender is not in a relationship and has no children. He has deferred entering into a relationship until this matter is finalised.

14. The victim started working as a casual employee at the same fast-food outlet as the offender while she was a high school student. She was then aged 14. She became friends with the offender. The relationship became intimate in March 2014.

15. Count 6 is the exploitation charge. The offender asked the victim to send him naked images of her breasts. She transmitted images via her iPhone.

16. The relationship then became more involved. The offender asked the victim if she wished to have sex with him. She agreed.

17. The first act of sexual intercourse occurred on 6 March 2014 at the home of a friend of the offender. After watching a movie, the offender and the victim had sexual intercourse, which included digital penetration, penile-vaginal intercourse and oral sex. These events make up Count 1.

18. About two weeks later, sexual intercourse occurred between the victim and the offender in the offender's bedroom. This constitutes Count 2.

19. Count 3 occurred in early April 2014, when there was both penile-vaginal intercourse and anal sex in the offender's bedroom. The latter act caused the victim intense pain.

20. Count 4 occurred a short time later. Penile-vaginal intercourse occurred at the offender's residence.

21. Count 5 occurred later that month and involved anal sex.

22. The victim kept a diary note of all sexual encounters between herself and the offender in an electronic journal.

23. On 23 April 2014, the victim told the offender that she did not wish to see him anymore. The offender resigned from his employment the following week and has since had minimal contact with the victim.

24. According to the pre-sentence report, the offender agreed with the Statement of Facts, although states that, due to his alcohol consumption, he has limited memory of the specific offences. He maintains that there is a degree of unfairness in the charges because the sexual intercourse had been consensual. He seems to not fully understand that a 14-year-old person is unable to give consent to sexual intercourse.

25. The offender acknowledged that his role as manager may have influenced the victim's decisions. He denied, however, that he had manipulated the victim by using his position as manager. He attributed some blame to the victim for being flirtatious while at work.

26. The offender said that he did not think that the victim had been negatively affected by his conduct, but that he had entered a guilty plea to protect her from the ongoing trauma of a court case.

27. The pre-sentence report assesses the offender as being at a low to medium risk of sexual reoffending.

28. The objects and purposes of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT), require a balance to be struck between meeting the expectations of the community, the demands of deterrence and the need to not impose a sentence which will deprive an offender of the prospect of rehabilitation. Section 10 provides that imprisonment is a last resort.

29. The balancing act is all the more difficult when the offender is a young person who, prior to the offending, had no criminal record, was leading a productive life, enjoyed the support of a stable family and could look forward to being a contributing member of society.

30. The written references that have been tendered (Exhibit 1) reflect the offender's otherwise admirable history.

31. Ms Cameron says that the offender's ambitions have been "destroyed" and his capacity to enter employment in law enforcement has been taken away from him. She describes him as a "trustworthy, generous, respectful and loving person". These sentiments are repeated in the reference written by the offender's mother, who also told the authors of the pre-sentence report that her son carries a sense of shame regarding his conviction. She describes his current employment in her business, which is devoted to providing services for women who have suffered breast cancer.

32. The offender's sister and stepfather have written that the offences are out of character and the offender is a decent person. There is a letter from the offender's father who emphasises the remorse that the offender feels. He makes a plea for leniency. There is a letter from his grandmother talking about his devotion to his family and his pride in his heritage.

33. I do not wish to blunt the offender's prospects of a rewarding future. However, it is important that he is punished for what are very serious offences. In saying this, I take into account that the particular facts behind these offences, set against the range of sexual offending, are towards the lower end of the range of objective seriousness.

34. However, it is important that I specifically mention the offender's attitude to the offences being consensual. He is wrong.

35. Firstly, consent cannot mitigate the seriousness of the offences (although a lack of consent can be an aggravating factor): Clarkson v R; EJA v R [2011] VSCA 157; 212 A Crim R 72.

36. Secondly, the nature of the consent is important. The law says that a young person under the age of 16 is unable to consent to sexual intercourse. There is very good reason for this legal position. There is an important difference between a person agreeing to have sexual intercourse with another person and giving informed consent. The latter involves a consideration of all manner of social, emotional and physical matters that the law says a person under the age of 16 is incapable of considering. The law is absolutely correct.

37. One of the cases I was referred to on behalf of the offender is R v Goboly [2016] ACTSC 322. In this matter, a young man received a suspended sentence after pleading guilty to one count of sexual intercourse with a 13-year-old girl and another count of an act of indecency. There is an important point of distinction in this case. Refshauge J pointed out that the sexual intercourse involved a short period of digital penetration and was "perhaps, not as serious as penile-vaginal intercourse would have been." In the present case, there are not only more than one episode of penile-vaginal intercourse, but there are also two occasions when anal intercourse took place. The offending here is unquestionably more serious than in Goboly.

38. Another case to which I was referred is R v Dickerson [2016] ACTSC 337, a decision of Burns J. This is another example in which the single act of sexual intercourse was constituted by digital penetration. It does bear some similarity to the present facts. In that case, the two participants were working in the same restaurant and the offender was the victim's supervisor. The age difference was 25 to 15. The offender was sentenced to 12 months imprisonment, wholly suspended, with a good behaviour order imposed for a period of two years. Once again, there are points of distinction with the present case.

39. The dilemma that faces me is to balance the need for punishment and deterrence against the possible destruction of a young man's future. This offender is a young man who has no prior record, has admitted his guilt and has demonstrated his value to society both actually and potentially.

40. It is also important that I take into account the victim impact statement (Exhibit B). In her statement, the victim describes her vulnerability at the time of the offences and her desire for a true friendship. She describes the destruction of the trust that she had in the offender and her continuing thoughts about the effects of her experiences with the offender. She, like the community at large, is entitled to feel that there has been appropriate punishment for the offences inflicted upon her.

41. The victim's statement is to be compared to the offender's act of boasting to his friend about his sexual encounters with the victim, stating "that's 12 years in jail if cops find out." This bravado is the very opposite of the real emotional damage suffered by the victim.

42. A prison sentence is inevitable and conceded. It is demanded by the nature of the offences. A full-time prison sentence, however, is not inevitable. There are alternatives.

43. The first is to proceed by way of a wholly suspended sentence. This would provide the best prospect of rehabilitation but also allow the imposition of a stern prison sentence which could take effect if the provisions of an associated Good Behaviour Order were breached.

44. The next option is a partially suspended sentence. This has the very real danger of allowing this offender to become enmeshed in the criminal population and for his future to be guided by that association.

45. The final alternative is an Intensive Corrections Order (an "ICO"). If the offender is found to be suitable for such an order, he will be monitored by the Department of Corrections for a substantial period of time, during which the possibility of full-time imprisonment will always be a close reality if he fails to comply with the directions he is given.

46. My initial thought was in favour of an ICO. However, I have decided not to proceed upon that course but rather to impose a fully suspended sentence. I have done so because I do not see the advantage of an ICO to the community in respect of this offender. He does not have any apparent problem with the abuse of alcohol or drugs and there is no suggestion of any general sexual offending tendency.

47. I think any monitoring of him can be best achieved through a Good Behaviour Order.

48. I have been particularly influenced by the decision of the Victorian Court of Appeal in Azzopardi (& Ors) v R [2011] VSCA 372. Commencing at paragraph [34], the Court set out sentencing principles in relation to young persons. Three principles are emphasised:

...Firstly, young offenders being immature are therefore "more prone to ill-considered or rash decisions". They may "lack the degree of insight, judgment and self-control that is possessed by an adult". They may not fully appreciate the nature, seriousness and consequences of their criminal conduct... [Footnotes omitted]

...Secondly, courts "recognise the potential for young offenders to be redeemed and rehabilitated". This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, "is one of the great objectives of the criminal law". [Footnotes omitted]

... Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed... [Footnotes omitted]

49. It might be said that at 21 years of age the offender was not a young person. Having regard to his background and to his lack of a criminal record I am satisfied that he should be treated within the bounds of the above principles.

50. It is also important to remember that there is no evidence of predatory conduct derived from the offender's position of seniority. It may be that the victim was influenced by him being a manager but the evidence does not reveal that he took advantage of this fact.

51. In relation to accumulation of sentences, I think there should be a degree of both accumulation and concurrency in order to both recognise that there are separate offences but also to avoid an overly long and crushing head sentence.

52. As to the lengths of the individual sentences, I think that the exploitation charge should attract a sentence of 9 months imprisonment. I think the sexual intercourse counts involving penile-vaginal intercourse (counts 1, 2 and 4) should attract a term of imprisonment of 15 months. The counts involving anal intercourse (counts 3 and 5) should attract a term of imprisonment of 18 months.

53. Each of the above terms of imprisonment has been reached after a reduction of approximately 25% as a result of the offender's pleas of guilty.

54. There should also be a requirement to enter into a Good Behaviour Order extending for the period of the head sentence and including, amongst other conditions, the performance of 300 hours of community service.

(a) In respect of each of the six counts in the indictment dated 25 July 2017, a conviction is recorded.

(b) In respect of count 1, sexual intercourse with a person under the age of 16 (CC 2016/6281), the offender is sentenced to a term of imprisonment of 15 months to commence on 18 September 2017 and end on 17 December 2018.

(c) In respect of count 2, sexual intercourse with a person under the age of 16 (CC 2016/6284), the offender is sentenced to a term of imprisonment of 15 months to commence on 18 December 2017 and end on 17 March 2019.

(d) In respect of count 3, sexual intercourse with a person under the age of 16 (CC 2016/6285), the offender is sentenced to a term of imprisonment of 18 months to commence on 18 March 2018 and end on 17 September 2019.

(e) In respect of count 4, sexual intercourse with a person under the age of 16 (XO 2017/31086), the offender is sentenced to a term of imprisonment of 15 months to commence on 18 June 2018 and end on 17 September 2019.

(f) In respect of count 5, sexual intercourse with a person under the age of 16 (XO 2017/31087), the offender is sentenced to a term of imprisonment of 18 months to commence on 18 September 2018 and end on 17 March 2020.

(g) In respect of count 6, using a child for the production of child exploitation material (XO 2017/31088), the offender is sentenced to a term of imprisonment of 9 months to commence on 18 September 2017 and end on 17 June 2018.

(h) The total sentence is 2 years and 6 months, to commence on 18 September 2017 and end on 17 March 2020.

(i) Each of the above sentences of imprisonment is suspended with immediate effect.

(j) The offender is required to enter into a Good Behaviour Order for a period of 2 years and 6 months to commence today and end on 17 March 2020 with the following conditions:

• (i) Accept the supervision of ACT Corrective Services until 17 March 2020 or such lesser period as deemed appropriate by the offender's supervisor and to obey all reasonable directions of ACT Corrective services.
• (ii) Be assessed for, and if found suitable, participate in the Adult Sex Offender program as directed by ACT Corrective Services.
• (iii) Complete 300 hours of community service as directed by an officer of ACT Corrective Services within a period of 2 years.
• (iv) Report to ACT Community Corrections within 48 hours.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.