R v QI

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - sexual offences - sexual intercourse with person under 16 years - intoxication - abuse of position of trust - low risk of reoffending

Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35

Crimes Act 1900 (ACT) s 55(2)

R v AM (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014)

R v Barker [2014] ACTSC 115

R v Bye (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 3 July 2012)

R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012)

R v P (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 9 January 2013)

R v Payne [2015] ACTSC 345

1. The offender pleaded guilty to two offences of engaging in sexual intercourse with a person under the age of 16 years contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 14 years' imprisonment.

2. The pleas of guilty were entered in the week preceding the trial date, and after tendency and relationship applications had been granted. As a result of the negotiations, the prosecution accepted pleas to Counts 3 and 6 in the indictment in full satisfaction of the remaining counts.

3. The offender gave evidence that he had decided to plead guilty at the last moment because he realised that he did not want to put the victim and her family through the trauma of a trial. Previously, he "was in denial" and "couldn't come to grips with what he had done." Additional factors that motivated the offender to plead guilty were that he did not want to put his own family through the trial and he decided to accept responsibility for his actions.

4. Taking into account the matters referred to in s 35 of the Crimes (Sentencing) Act 2005 (ACT), a discount of approximately 12.5% should be allowed on the sentences that I would otherwise have imposed.

5. In about 2004, the victim met the offender when he began to date her older sister. The victim was about 10 years old.

6. By 2008/2009, the victim and the offender had a close relationship. They would often discuss personal matters, including matters of a sexual nature. The offender became a confidant to the victim.

7. On about 30 September 2009, when she was almost 15 years old, the victim contacted the offender and asked him to purchase alcohol for her to take to a party. He agreed, on condition that the victim accompany him. In order to do so, she truanted from school. The offender collected the victim from her residence in Woden and drove her to Gungahlin, where he went into a liquor store and purchased the alcohol. The victim offered to pay, but the offender declined payment. He drove the victim to his home.

8. After they arrived at the offender's home, he suggested that they play Mortal Kombat, and that each time the victim lost she would drink a shot of Absinthe. The victim agreed. She drank several shots of Absinthe as well as a Lemon Ruski.

9. The offender obtained a DVD that included images of sexual intercourse. The offender and the victim watched it for about 10 minutes. The offender drew the victim towards him and positioned her between his legs with her back against his groin.

10. The offender left the living room, returning naked from the waist down. He placed his erect penis in the victim's mouth and thrust his hips a number of times towards the victim's face before removing his penis from her mouth. He then removed the victim's shorts and positioned himself on top of her. At this point, the victim mentioned her sister, the offender's girlfriend, and the offender reassured the victim that he still loved her sister. He then inserted his penis into her mouth while he licked her genital area. The subject matter of the first incident was this oral intercourse, which had several facets.

11. The offender repositioned himself and inserted his penis into the victim's vagina, moving it in and out before removing it. The victim was in shock. This penile/vaginal intercourse is the subject matter of the second charge.

12. The victim went to the bathroom, where she vomited.

13. The offender gave her a glass of water before driving her to a McDonald's outlet. He told her: "Don't tell anyone or I could get into a lot of trouble. I could go to gaol and lose ... [your sister]". The offender asked the victim whether she was taking the contraceptive pill. When she said that she was not, he said that he would take her to a doctor for that purpose. He drove her home.

14. The following day, the offender collected the victim from her home and drove her to a medical clinic where a doctor prescribed the contraceptive pill.

15. Over the next few years, the victim made several complaints to friends about the incident. In mid-2014, she disclosed the incident to her family. The victim's father confronted the offender who said:

I don't remember, but if ... [the victim] says it happened then yeah it happened. Back then I was very heavily into the gear. I don't remember everything that happened. I was taking a lot of drugs at the time and I can't really remember what happened.

16. In a victim impact statement the victim's father stated that, during his meeting with the offender, the offender did not deny the incident and stated that "he wanted to find a solution that would cause the least pain to all involved as possible."

17. In evidence, the offender agreed that he had made the statement in [15], but said that the content of the statement was untrue: the offender was not on drugs and he could remember what had occurred. He gave evidence that he had made a false statement to the victim's father because he "was in a state of denial" and had decided to raise drug use and lack of memory as excuses for his conduct.

18. The Crown Prosecutor read the victim impact statements of the victim and her father.

19. The Court acknowledges the profound and ongoing impact of the offences on the victim and her family. Following disclosure of the offences, the victim's family was thrown into turmoil from which they have not recovered, and probably never will.

20. In her statement, the victim described the sort of serious impacts that one would expect a victim to experience given the nature of the offender's conduct and the context in which it occurred. The victim experiences unjustified feelings of guilt and shame, and feelings of betrayal. The impact of the incident was exacerbated by the fact that, after the incident, she had ongoing contact with the offender and she felt that she had no option but to keep the offences secret. During the victim's adolescence, her psychological strength and ability to cope with school and normal adolescent challenges was diminished. She has had difficulty trusting others and forming romantic attachments. There was a dramatic impact on the victim's self-image. The victim believes that the offender's friends, whom she sometimes encounters in public places, are antagonistic towards her for speaking the truth. She has obtained counselling, but is yet to fully address the sequelae of the offences.

21. The victim's father feels a strong sense of betrayal. At the time of the offences he employed the offender. He is deeply upset, not just because of the offences, but because after the offences the offender continued to benefit from a close relationship with the victim's family for years, and during that period family members had no idea of the conduct in question.

22. Any offence of this nature is serious, as indicated by the maximum penalty of 14 years' imprisonment.

23. These particular offences are of substantial objective seriousness when one considers the range of offences that may constitute a breach of s 55(2) of the Crimes Act.

24. The offences were part of the same incident, an incident that was probably relatively short lived, but they involved violation of the victim in two separate and serious ways. There should be a significant degree of concurrency in relation to the sentences, but in order to recognise the separate and distinct conduct, some degree of accumulation is required.

25. It is accepted by the defence that the offender took advantage of the victim's trust and the trust of the victim's family. The victim treated the offender as a sort of brother, as a trusted confidant. Because of that relationship, she asked him to purchase alcohol.

26. The victim agreed to go to the offender's home, where he encouraged her to consume alcohol. The consumption of alcohol lowered the victim's inhibitions, affected her capacity to assess the seriousness of the situation, and meant that she was less capable of expressing her opposition to the conduct. The offender must have realised that the consumption of alcohol would affect the victim.

27. I accept that the offences were not planned or premeditated. For example, there is no evidence that, at the time that he took the victim to the liquor outlet, the offender planned to sexually violate her. However, there is no doubt that he exploited the opportunity of the victim being at his house. The decision to sexually violate the victim did not occur within a matter of seconds; it occurred at an earlier point in time. That is evident from the fact that the offender caused the victim to watch a sexually explicit DVD for a period of about 10 minutes before the offences occurred.

28. The victim was almost 15 years of age (relatively close to the upper limit of 16 years) when the offences occurred. The offender was 22 years old. The seven-year age gap was a very significant difference in age and, more importantly, in the level of maturity between the offender and the victim.

29. The offender's conduct was shocking, confusing and unwelcome to the victim. It upset her deeply. Immediately after the incident, she vomited in the bathroom. Whether that was because of shock or over consumption of alcohol or both, is unknown, but in any case, the victim's reaction was caused by the offender's conduct.

30. The victim did not consent to the conduct. The complexities of the issue of consent in relation to offences such as those under s 55(2) were discussed by Penfold J in R v P (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 9 January 2013) (R v P). Subsection 55(2) assumes that a person under the age of 16 is incapable of giving consent. It is important for the Court to examine all the circumstances, even where there is apparent or ostensible consent, which is not the case here. The question of consent, while it may be relevant to the moral culpability of an offender, rarely diminishes a penalty because the victim agreed to the sexual intercourse. Even where there is apparent consent, it is not considered to be real consent and it does not diminish the penalty that would otherwise apply.

31. In this case, it is not clear that the offender knew that the victim did not consent, but he must at least have been reckless about that given that he had plied her with alcohol.

33. He is a person of otherwise good character. In 2009, he was convicted of minor matters, but those matters are irrelevant for present purposes.

34. The offender was born overseas, but an Australian family adopted him when he was an infant. He was raised in a loving and privileged environment by parents with strong family values. During his upbringing, he had a private school education and enjoyed many sporting and social opportunities.

35. Regrettably, the offender's father died very recently, but the offender still has the strong support of his mother.

36. The offender has been with his current partner for some years and they are now married. They have a stable and loving relationship. She supports the offender emotionally. The offender and his wife have a child aged six months old. They are buying a home and have a large mortgage. The offender has been in stable employment with the public service. Recently, he accepted a voluntary redundancy. He has not sought other employment as he is awaiting the outcome of these proceedings.

38. The offender has demonstrated insight into the impact of his actions on the victim and her family. Friends and the author of the pre-sentence report have accepted the offender's statements in that regard as honest. They also accept as genuine the offender's expression of deep remorse.

39. The offender expressed empathy for the victim and her family. The victim and her family may consider that the offender's remorse is not genuine, but I accept the evidence of the author of the pre-sentence report and the offender's friends and family that the remorse is genuine.

40. In character references, his friends and family describe the offender as a hard worker who is well liked in the workplace. He is a caring, respectful, generous, loyal and trustworthy friend. He is devoted to his wife and child and is an excellent father with a reliable income who has, at times, worked two jobs to enable his family to achieve their goals. He is a keen sportsperson who lives a healthy lifestyle and enjoys a range of sporting activities. He has a wide circle of friends.

41. The offender has undertaken charity and voluntary work, including managing and mentoring a basketball team that was established to encourage participation by young Aboriginal persons and Torres Strait Islanders.

42. Character references indicate that the offender has matured since the commission of the offences and is a different person from the relatively immature person who exercised such appalling judgment on the day in question. The delay in disclosure and consequent prosecution has been of benefit to the offender in that he can now show the Court that he has matured and has a stable adult lifestyle.

43. The offender's mother furnished a letter detailing the terminal illness recently suffered by her husband, the offender's father, and his chronic psychological problems with long-standing Post-traumatic Stress Disorder (PTSD). The offender helped his father through intense episodes of PTSD and provided a high level of care to his father during the recent terminal illness. By doing so, the offender provided invaluable support and assistance to his mother.

44. The offender has been assessed as having a low risk of sexual re-offending. I accept the defence submission that such an assessment is relatively rare. Because he has been assessed as at low risk of sexual re-offending, he is unsuitable for participation in an adult sex offender program. There is no real risk of other types of offending.

45. The Court was referred to a number of decisions. None was directly comparable to the present case, but taken overall the cases showed the pattern of sentencing in this Court. The cases included: R v P; R v Rootsey (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 23 August 2013); R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012); R v Bye (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 3 July 2012); R v Barker [2014] ACTSC 115; R v Payne [2015] ACTSC 345; and R v AM (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014).

46. The pattern for cases of this type which are of substantial objective seriousness is that a sentence of imprisonment is usually considered to be the only appropriate sentence. Not infrequently, an offender is required to serve part of the sentence by way of fulltime imprisonment and the remainder is suspended. Having regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I consider this to be the appropriate way to proceed in this case.

47. As pointed out in some of the cases to which I have referred, general deterrence is a very important sentencing consideration in matters of this type. Another dominant sentencing purpose is to recognise the harm done to the victim and to the community. The other sentencing purposes in s 7 are also relevant. In recognition of sentencing purposes such as punishment, accountability, denunciation and general deterrence, about 25% of the sentence should be served by way of full-time imprisonment.

48. I am required to consider relevant considerations set out in s 33 of the Sentencing Act. I have already referred to the considerations that are relevant in this case.

49. The offender is convicted and I impose the following sentences:

(a) On Count 3, the offender would have been sentenced to 24 months' imprisonment, but the sentence is reduced to 21 months' imprisonment for the plea of guilty. It will run from 6 July 2016 to 5 April 2018.

(b) For Count 6, the offender would have been sentenced to 30 months' imprisonment, but the sentence is reduced to 26 months' imprisonment for the plea of guilty. It will run from 6 November 2016 to 5 January 2019.

50. From 6 July 2016 to 19 February 2017, the sentence is to be served by way of fulltime imprisonment. Pursuant to s 12 of the Sentencing Act, the remainder of the sentence is suspended and I make a good behaviour order for a period of two years from 19 February 2017.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

10 October 2016 Replace "R v QI" with "R v QI (No 2)" Paragraphs: Case title