R v Sheedy [2016] ACTSC 256

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Particular Offences - offences against the person - sexual offences - engaging in sexual intercourse with a person under 16 years - found guilty after trial by jury - no prior convictions - offender immature - conduct not predatory - reasonable prospects for rehabilitation - general deterrence - Good Behaviour Order imposed.

1. Jake Sheedy, you were found guilty by a jury after trial of one offence alleging that between 1 November 2014 and 1 January 2015 you engaged in sexual intercourse with a person under the age of 16 years, namely, OX. At the time of that offence, the victim was 14 years of age but almost turning 15. You were 19. The Crown has quite rightly pointed out the difference in chronological ages as being significant in determining the objective seriousness of this offence; however, the difference in chronological age is only part of the picture.

2. I am satisfied, from the material that was put before me, that at the time of this offence you were a very immature young man. That would explain your continuing social interest in people who were still at school, although you had left school. The offence is constituted by one act of fellatio, which did not proceed to ejaculation. The maximum penalty is a sentence of 14 years imprisonment. I note that you were found guilty after trial but you did not dispute the act itself. The only issue which you raised was your belief as to the victim's age. In that regard, the victim gave evidence that he had told you his age.

3. Clearly, the jury rejected your evidence in which you said you were not aware of the victim's age at the time of this offence. I am satisfied that you were aware of his age. I am also satisfied that at the time, because of your immaturity, you did not turn your mind to the question of the serious nature of what you were doing and the potential for any harm to come to the victim. There is no evidence of any particular harm to the victim as a result of this offence. However, as has been pointed out, it may be presumed that the victim has suffered harm. That indeed is the reason why the law prohibits sexual activity with people under particular ages.

4. The offence of engaging in sexual intercourse with a person under the age of 16 years is an offence which covers a multitude of different factual situations. The seriousness with which the legislature views this type of offending is reflected in the fact that it carries a maximum penalty of 14 years imprisonment. However, in my opinion this offence falls towards the bottom of the range of offences of this nature.

5. You are currently 21 years of age and I accept that you have a growing maturity, including a growing recognition of the effects of your actions on the victim and the need for you to accept responsibility for your actions. As such, I am satisfied that you have reasonable prospects for rehabilitation. Your age at the time of this offence and also your current age mean that rehabilitation is a very significant sentencing consideration with respect to this offence.

6. You have no prior convictions, which is also a matter which militates towards leniency with respect to this matter. You have continuing family support, which is also a strong protective factor and is likely to protect against the prospect of any further offending. The evidence before me is that you, with your growing maturity, now move in a different social group and with people who are much more of your own age.

7. I am not satisfied that this is a case in which personal deterrence has any significant part to play, however, offences of this nature require a sentence which is designed to deter others from committing this type of offence. That is, there is a need to recognise the requirements of general deterrence in sentencing.

8. I have formed the view that you are an unsophisticated young man and that at the time of this offence you were particularly immature. I am satisfied that your conduct was not predatory. In my opinion, a sentence of imprisonment, wholly suspended, will be sufficient to satisfy the requirements of sentencing.

9. I will record a conviction with respect to one charge of sexual intercourse with a person under the age of 16 years and you will be sentenced to 15 months imprisonment. That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of two years with a requirement that you:

(a) accept the supervision of ACT Corrective Services for that period of two years or such lesser period as may be deemed appropriate by your supervising officer; and

(b) are to undertake such counselling and programs as directed by ACT Corrective Services, particularly directed towards sex offending.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice.