Material tendered on the offender's behalf
73 The following relevant material was tendered on the offender's behalf.
74 First, four reports prepared by the offender's treating psychologist, Dr Kate Lemerle, were tendered without objection. Dr Lemerle was not cross-examined by the Crown and no issue was taken in relation to Dr Lemerle's ability to express the opinions in the reports based on her qualifications and experience. Dr Lemerle has been treating and consulting with the offender at regular intervals since December 2017.
75 Dr Lemerle's initial report, dated 9 January 2018, reported that the offender's "psychological profile [did] not indicate any obvious psychopathology at the time of testing" and that there was no evidence of "social or emotional difficulties". Dr Lemerle reported that the only "indicator suggesting a need for possible intervention is related to [the offender's] abnormal score for Conduct Problems, raised by his propensity to get into fights, lose his temper, or be accused of lying or cheating". Those results, however, according to Dr Lemerle, were not indicative of any serious social psychopathology and perhaps just indicated that the offender's overall development was "lagging behind", which was "not uncommon in young males, particularly where there have been negative life events that have impacted his developmental trajectory". The reference to "negative life events" would appear to be a reference to the fact that the offender's father and mother separated when the offender was fairly young and that his mother returned to New Zealand, where she died in 2013.
76 One rather disturbing aspect of Dr Lemerle's first report is that it contains an account of the offending behaviour, provided to Dr Lemerle by the offender, which is at odds with the Statement of Facts concerning the offences. In short, the account initially given to Dr Lemerle by the offender tended to apportion blame to the victim and minimise the offender's responsibility. Indeed, the offender tended to paint himself as the victim. If anything, this aspect of Dr Lemerle's report revealed a significant lack of insight by the offender into his offending behaviour.
77 It should also be noted, in this context, that the offender's counsel made it abundantly clear in her submissions that the offender accepted the version of facts in the Statement of Facts and that "[f]urther intervention is recommended and required into issues relating to insight and judgment relating to the offending behaviour". It was emphasised that the offender did not rely on some of the statements and allegations concerning Ms A that were recounted and referred to in Dr Lemerle's first report.
78 Somewhat inconsistently with her first report, Dr Lemerle's later reports painted a somewhat bleaker picture in relation to the offender's psychological state and well-being. In her second report, Dr Lemerle referred to a number of "life events" which contributed to the offender's current "situation". Those events included his mother's alcoholism and use of cannabis, a near-drowning when the offender was three years old, exposure to domestic violence for the first seven years of his life, the breakdown of his biological parents' relationship when the offender was seven years old, poor school performance, his father's remarriage when the offender was nine years old, the death of his mother in New Zealand when the offender was 15 years old and developmental immaturity. Dr Lemerle also referred to the offender's early sexual activity, apparently from the age of 12. That sexual activity at such a young age was, somewhat disturbingly, said to be part of the "Pitcairn tradition". In that regard, Dr Lemerle said:
Furthermore, traditional views of the "appropriate" age at which young people may begin engaging in sexual activity differ from the mainstream Australian legal system, and currently there is widespread confusion in the Norfolk Island population about what is "legal" and what is not. Tiaan admitted he was unaware of the "age of consent", and quite possibly the plaintiff, also being a Pitcairn descendent, may have been unaware of this also. Whilst such an argument may be questioned in mainstream Australia, cultural traditions and differences, such as those recognised within Aboriginal and multicultural communities in Australia, should be given some consideration in this case.
79 Counsel for the offender, perhaps wisely and not surprisingly, did not emphasise this aspect of Dr Lemerle's report, nor make any submissions based on it. Needless to say, there should now be no basis for any confusion or doubt concerning the age of consent and the "appropriate" age at which young people may begin engaging in sexual activity on Norfolk Island. It is admirable and understandable that Norfolk Islanders pride themselves on their history and traditions. If, however, there was or remains a "Pitcairn tradition" that in any way tolerates or is ambivalent towards sex with children under the age of 16 years of age, that tradition should be firmly jettisoned. Whatever may have been the traditional views and cultural traditions of Norfolk Island in that regard, the law is now abundantly clear. There is no scope whatsoever, in any civilised society, for such an attitude to sex with children.
80 If anything, this part of Dr Lemerle's second report perhaps underscores the need for general deterrence in fixing the appropriate sentence in relation to the offences in question.
81 Perhaps more significantly, Dr Lemerle's testing apparently revealed that the offender's IQ was well below average and "therefore his capacity to fully appreciate the gravity of the charges against him and adapt his behaviour accordingly is under question". This finding was also emphasised in Dr Lemerle's third report, which stated that a "battery of psychological assessments has indicated that whilst [the offender] is chronologically and physically a mature 19-year old, his developmental age is somewhat lower than this". Dr Lemerle noted that her tests revealed that the offender's intellectual functioning was somewhere between 11 years and six months and 14 years, and that his "social-emotional and coping skills were all rated as significantly below that of an average male of his chronological age".
82 Dr Lemerle's final report, dated 4 June 2018, reiterated her opinion, apparently based on certain tests conducted by her, that the offender's "cognitive, social-emotional and moral development are not compatible with his chronological age" and were, in fact, "evidently consistent with that of a 12-14-year old".
83 As has already been noted, Dr Lemerle was not cross-examined and the opinions expressed by her in her reports were not challenged. Despite that, I have some misgivings and concerns about the objectivity and intellectual or scientific rigour of some of Dr Lemerle's opinions and statements. Accordingly, I have some concerns about the weight that should be given to some of her opinions. It would appear that, at least to a certain extent, the offender's counsel shared those misgivings. It should be noted, in that regard, that some of Dr Lemerle's testing and statements concerning recidivism were expressly not relied on by counsel for the offender, or it was at least suggested that the issue of recidivism should be the subject of further formal testing. Importantly, it was also submitted, on the offender's behalf, that "further investigations on issues including cognitive testing is required to confirm the testing results administered" by Dr Lemerle.
84 Nevertheless, the offender's counsel submitted that the results of Dr Lemerle's cognitive testing should be given some weight. That submission should be, and is, accepted, particularly in the absence of any real challenge by the Crown. It should also be noted that the offender's difficult childhood and his emotional immaturity were matters that were confirmed in, or corroborated by, some of the character references or testimonials, to which reference will be made shortly. As will be discussed in more detail later, the offender's apparent emotional immaturity is an important consideration in assessing the seriousness of the offending conduct.
85 Finally, in relation to Dr Lemerle's reports, the offender's counsel submitted that the reports raised issues that were considered to be "risk factors in relation to [the] offending behaviour" and that "further intervention including counselling and treatment is recommended and required". It was also submitted that the further treatment and counselling should be "formally administered by a professional, who has been independently assessed, as having the requisite expertise in addressing the [offender's] treatment needs". That submission is also accepted.
86 A bundle of character references or testimonials were also tendered on the offender's behalf. It is unnecessary to refer to these references in great detail. Suffice it to say that they generally spoke positively about aspects of the offender's character. Following are some of the pertinent points revealed by the references.
87 The offender's aunt, Ms Susan Bigg, confirmed or corroborated some of what Dr Lemerle had said about the offender's difficult upbringing, including his mother's alcoholism, the separation of his parents, his mother's death and his learning difficulties at school. The offender's previous employer, Mr Paul Kiernan, referred to his engagement of the offender in April 2017 as an indentured electrical apprentice. Importantly, Mr Kiernan made it clear that he would continue to support the offender in employment and training in the future and would be prepared to assist in supervising the offender if he was granted home detention. Mr Kiernan was aware of the offending conduct, and referred to the offender's lack of maturity by way of partial explanation of that offending.
88 It should also be noted, in the context of Mr Kiernan's character reference, that during the four months that the offender was subject to conditional bail and residing in Bundaberg, he completed a number of courses at a Queensland TAFE college relevant to his electrical apprenticeship. His record of results and academic transcript were tendered as further proof of the offender's efforts to pursue and progress his apprenticeship whilst on bail. I should note, in relation to the offender's TAFE results, that they Crown submitted that the fact that the offender was able to successfully complete the TAFE courses was inconsistent with Dr Lemerle's evidence concerning the offender's intellectual capacity. There is little merit in that submission. While undoubtedly some of the courses undertaken by the offender required a degree of intellectual input, they also appear to have a mainly practical focus. In any event, if anything, the offender's TAFE results reflect positively on the offender's application to the courses and his prospects for rehabilitation generally.
89 Two former Norfolk Island Magistrates, Mr Albert Fletcher Buffett and Mr Rees David Walden made positive observations concerning the character of the offender and his family. Mr Buffett referred to the offender's difficult upbringing and his naivety and lack of maturity. The offender's former teacher referred to the difficulties in the offender's early life and to the fact that, while he was not a natural student, particularly academically, he was nonetheless a hard worker and had other qualities.