The Queen v CV [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Higgins CJ,Burns,Katzmann JJ
• Judgment Date: 24 May 2013
• Docket Number: No. ACTCA 69 - 2012
• Date: 24 May 2013

[2013] ACTCA 22

IN THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Higgins CJ, Burns & Katzmann JJ

No. ACTCA 69 - 2012

No. SCC 55 of 2012

Between:

The Queen

Appellant

and

CV

Respondent

Counsel for the Appellant: Ms M Jones

Counsel for the Respondent: Ms A Tonkin

Clarkson v The Queen (2011) 32 VR 361

CTM v The Queen (2008) 236 CLR

Director of Public Prosecutions (Vic) v Arvanitidis (2008) 202 A Crim R 300

Everett v R (1994) 181 CLR 295

House v The King (1936) 55 CLR 499

Markarian v The Queen (2005) 228 CLR 357

Re Attorney-General's Application (No 3 of 2002) (2004) 61 NSWLR 305

R v Chad (Unreported, NSWCCA, Gleeson CJ, Hunt CJ at CL and Sully J, 13 May 1997)

R v Clarke [1996] 2 VR 501

R v Ingrassia (1997) 41 NSWLR 447

R v Kama (2000) 110 A Crim R 47

R v KNL (2005) 154 A Crim R 268

R v Mauger [2012] NSWCCA 51

R v SDM (2001) 51 NSWLR 530

R v Tait and Bartley (1979) 24 ALR 473

R v TW (2011) 6 ACTLR 18

R v Wilton (1981) 28 SASR 362

TMTW v The Queen [2008] NSWCCA 50

Crimes Act 1900 (ACT), s 55(2)

Crimes (Child Sex Offenders) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 17, 33, Ch 8A

CRIMINAL LAW AND PROCEDURE — Sentencing — Crown appeal against non-conviction order — young offender — sexual offences — sexual intercourse with a child between ages of 10 and 16 years — plea of guilty — consequences of conviction — relevance to exercise of sentencing discretion — registration as a sex offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) — purposes of sentencing young offender — Crimes (Sentencing) Act 2005 (ACT), Ch 8A — principles different from adults — importance of rehabilitation — non-conviction order — — whether sentencing judge erred in failure to have regard to ‘very young age’ of complainant, failure to observe requirements of s 17 of the Crimes (Sentencing) Act 2005, placing too much weight on apparent consent of complainant, allowing consequences of conviction to override considerations of punishment and deterrence — whether becoming a ‘registrable person’ a relevant consideration — whether sentencing judge erred in finding that respondent would be stigmatised and face adverse consequences in relation to his employment and ability to travel interstate and overseas if a conviction was recorded.

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

REASONS FOR JUDGMENT

THE COURT:

1 On 5 September 2012 CV was sentenced on a charge of engaging in sexual intercourse with a child above the age of 10 years but under the age of 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT). The sentencing judge declined to record a conviction but imposed a bond that the accused be of good behaviour for a period of 12 months. The Crown now appeals from that order. It does not urge that the bond be set aside. Its sole contention is that the sentencing judge erred in failing to record a conviction. Indeed, whether or not a conviction should be recorded was the only issue in the court below. In our opinion, the appeal should be dismissed.

Background

2 CV is 19 years old. Some time before 22 February 2011, when he was 16, he and S became friends on Facebook. S was then 12 years old, but on Facebook she stated she was 16. S started a Facebook account because ‘she was bored and wanted to meet guys’. The two had penile-vaginal sexual intercourse on at least two occasions, first on 22 February 2011, and each time at S's initiative, before S revealed her true age. When she did (in May 2011, soon after S had turned 13), CV was upset that she had lied to him about her age. He told her that she was too young to be in a sexual relationship and he could ‘get charged’. The relationship ended. Two weeks later, however, at S's request, the relationship resumed. At times S asked CV whether he ever thought she was too young for him but he professed not to care because he loved her. S attended a doctor twice, once with CV, to ask for Implanon contraception (an etonogestrel implant), which the doctor refused on account of her age. In July 2011, however, S obtained a prescription for the contraceptive pill, though she routinely forgot to take it and eventually stopped altogether. The evidence is silent about whether CV believed that S was taking oral contraceptives. Nor do the facts disclose whether S ever told CV that she had obtained a prescription, that she forgot to take her pills, or that she stopped taking them.

3 During the course of the relationship S and CV had penile-vaginal intercourse about seven times.

4 This is the context in which the offence occurred.

The offence

5 In late September 2011, when CV was aged 17 years and six months and S 13 years and five months, S asked CV when he was going to America. He replied that he was going the next day. She then told him she had a present for him. When he inquired what it was, she said ‘going away sex’. Unprotected penile-vaginal intercourse followed, after which the two watched television and then went to sleep.

6 On 24 October 2011 S attended a medical centre with stomach pains. She underwent a urine test which revealed she was pregnant. On 31 October 2011 she attended a police centre where she was interviewed. CV was arrested two weeks later and promptly admitted his guilt. He told the police that at the time of the offence he felt ‘pretty drunk’ and that S was ‘very drunk’.

7 An obstetric ultrasound undertaken on 3 November 2011 disclosed that S was seven weeks pregnant. On 8 December 2011 the pregnancy was surgically terminated.

8 No victim impact statement was presented to the Court.

The relevant principles on appeal

9 The principles governing Crown appeals against sentence are well-established. They were conveniently summarised by Refshauge J in R v TW (2011) 6 ACTLR 18 at [4]–[6], drawing on the analysis by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke [1996] 2 VR 501 at 522. It is unnecessary to repeat everything his Honour said in that case but it is useful to make the following points.

10 First, Crown appeals are considered anomalous in the criminal justice system and should only be brought in rare and exceptional cases to establish some point of principle.

11 Secondly, the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentence. It may only interfere with the sentence if there is error of the kind referred to in House v The King (1936) 55 CLR 499 at 504–5, that is to say, where the sentencing judge acted on a wrong principle; took into account irrelevant matters; failed to have regard to a material consideration; mistook the facts; or (even if the error is ‘undiscoverable’) the result is ‘unreasonable or plainly unjust’ so that the court might infer ‘that in some way there has been a failure properly to exercise the discretion’. A sentence will be ‘unreasonable or plainly unjust’ where it is manifestly inadequate or excessive: Markarian v The Queen (2005) 228 CLR 357 at [25].

12 Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error.

The grounds of appeal

13 In the present case there is no ground of appeal that the sentence was manifestly inadequate. The notice of appeal particularises four grounds, though in reality there are only three as the first is merely conclusory, and the appeal was conducted on that basis. They are:

• (i) His Honour erred in making a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (‘the Sentencing Act’);

• (ii) His Honour erred in failing to observe the requirements of s 17 of the Sentencing Act;

• (iii) His Honour erred in allowing the consequences of conviction to override considerations of punishment and deterrence; and

• (iv) His Honour erred by taking into account an irrelevant consideration, namely the consequences of the conviction.

14 No particulars were provided as to the requirements of s 17 with which the sentencing judge supposedly erred. Nor did the Crown elaborate in the notice of appeal about what was meant by ‘the consequences of conviction’. In submissions, however, it emerged that the Crown's complaints were that the sentencing judge erroneously:

• • Did not have regard to ‘the very young age’ of S;

• • Regarded as extenuating circumstances the facts that the sexual activity was consensual and that only one act of sexual intercourse occurred after CV became aware of S's true age when they were not ‘extenuating circumstances in which the offence was committed’;

• • Placed too much significance on S's apparent ‘consent’; and

• • Took into account the fact that if he were to record a conviction, CV would be required to register as a sex offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) (‘Child Sex Offenders Act’).

Did the sentencing judge fail to have regard to S's ‘very young age’?

15 It is not readily apparent whether this submission falls within any ground of appeal. It was not the Crown's contention that it would be an appealable error for a conviction not to be recorded in any case involving a 13 year old child. Ultimately, however, it is unnecessary to decide whether it does fall within a ground of appeal because we are satisfied that his Honour did have regard to S's age.

Did his Honour fail to observe the requirements of s 17 of the Sentencing Act?

16 Section 17 provides:

Non-conviction orders— general

• (1) This section applies if an offender is found guilty of an offence.

• (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

  • (a) an order directing that the charge be dismissed, if the court is satisfied that...