JUDGMENT No, sn B Ql wt Son CATCHWORDS APPEAL - Crown Appeal against inadequacy of sentence - consensual sexual act with person aged 12 - no element of exploitation - mentally retarded offender - non-custodial sentence within discretion. CRIMINAL LAW .- penalties for sexual assault - legislative intent when altered - purpose to protect young persons under 16 from sexual exploitation. SENTENCING - consensual 'sexual act with person aged 12 - no element of exploitation - mentally retarded offender - non-custodial sentence not inadequate - reluctance to increase sentence on Crown appeal ~ victim impact evidence - need for same to relate to facts as proved. \ Crimes Act 1900, s92E Criminal Code (WA), s319(2) R v McClymont, unreported, NSW 'CCA, Gleeson CJ, Mahoney JA and McInerney l, 17 December 1992 Rv Herring, unreported, WA CCA, Pidgeon, Seaman and White JJ, 22 September 1994 Parnis v R (1993) 126 ALR 423 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY THE QUEEN v WAYNE COLIN CHALMERS No, ACT G29 of 1995 Coram: Wilcox, Hill and Higgins JJ Date: 12 September 1995 Place: Canberra 15 SEP 1995 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY wa ww DISTRICT REGISTRY No ACT G 29 of 1995 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN — Appellant \ : AND: WAYNE COLIN CHALMERS Respondent MINUTE OF ORDER CORAM: - Wilcox, Hill and Higgins JJ DATE: 12 September 1995 PLACE: Canberra THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) No. ACT G29 of 1995 AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: WAYNE COLIN CHALMERS Respondent CORAM: WILCOX, HILL & HIGGINS JJ PLACE: CANBERRA DATE: 12 SEPTEMBER 1995 REASONS FOR JUDGMENT WILCOX J: 'On 22 June 1995 the Court heard and dismissed an appeal by the Crown against the sentence imposed upon the respondent by Gallop J. We indicated that we would give reasons in Que course. I have read the statement of reasons prepared by Higgins Jd. I adopt this statement as an expression of my reasons for joining in the dismissal of the appeal. I do not wish to add to what his Honour has written. However, I wish to emphasise that our decision did not reflect any lack of appreciation of the necessity of protecting young people from sexual exploitation, even when the exploitation is consensual and the contact initiated by the young person. In this case 2. the young person was only 12 years old, although she had told the respondent she was 15. The critical aspect of the case, so far as I was concerned;-was~ the. psychological..evidence..,..As..Higgins..J has noted, the sentencing Judge had before him a young man with a low mental capacity, and the social operating capacity of a 10 year old. Important though it is to protect the young, it was, in my opinion, well open to the sentencing Judge to take the view that no good purpose would be achieved by sending such a person to gaol for an act of casual, consensual sex. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of his Honour Justice Wilcox. "7? Associate: Foe Ja Dated: 12 September 1995 IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No ACT G 29 of 1995 ew GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY 7 BETWEEN: ~ THE QUEEN Applicant AND: WAYNE COLIN 'CHALMERS Respondent CORAM: WILCOX, HILL & HIGGINS JJ PLACE: CANBERRA DATED: 12 SEPTEMBER 1995 REASONS FOR JUDGMENT HILL J: I have read the judgments of Wilcox and Higgins JJ and agree with the reasons given and the comments made by them. I certify that this page is a true copy of the Reasons for Judgment herein of his Honour Justice Hill. Associate: > OMe Date: 12 September 1995 IN THE FEDERAL COURT OF AUSTRALIA — ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY } No ACT G29 of 1995 GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF. THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN. - Appellant \ AND: WAYNE COLIN CHALMERS Respondent CORAM: —__ Wilcox, Hill and Higgins JJ ' DATE: 12 September 1995 PLACE: Canberra REASONS FOR JUDGMENT HIGGINS J: The respondent had, on 9 January 1993, been charged: That he, in the Australian Capital Territory, on the 12th December 1992, did engage in sexual intercourse with a person, namely, S [name suppressed], the said S then being a person above the age of 10 years but under the age of 16 years, to wit 12 years. On 4 November 1993, a plea of guilty was tendered. It was confirmed before his Honour, the sentencing judge, on 30 March 1995. A plea of guilty had been tendered previously on 1 April 1993 but was changed to "not guilty" on 15 June 1993. There was a delay in the finalisation of the matter because of the failure of the respondent to appear on two occasions. The respondent was remanded in custody as from 28 February 1995 until the date sentence was imposed on 30 March 1995, On that day his Honour ordered that a conviction be recorded without further sentence, upon the respondent entering into a recognisance, self in the sum of $1,000.00 to be of good behaviour for 12 months and submit to supervision and direction from Adult Corrective Services. On 22 June 1995, the full court of the Federal Court, comprising Justices Wilcox, Hill and myself, heard 'and dismissed an appeal by the Crown against the sentence imposed upon the, respondent by Gallop J. At that time we indicated that we would give reasons in due course. These are my reasons. The facts alleged by the Crown and accepted by the respondent were that, on the date of the offence, the complainant, her father and her brother were spending the night at the home of the respondent, That home consisted of a single room plus kitchen, laundry and bathroom. The sleeping arrangements were that the complainant's father was to sleep on the lounge, her brother in a single bed, the complainant on a mattress on the floor and the respondent in his own double bed. During the evening the three adult males and the complainant had been watching television. After all four had gone to their respective beds, the complainant and the respondent began to converse with each other, he sitting on the end of his bed, she in her bed. The respondent then got into the complainant's bed and sexual intercourse occurred between them. The following evening the father woke to find the respondent and the complainant kissing and lying together in the complainant's bed. As a result of this, the father later questioned the complainant and _ she told him the respondent had had sexual intercourse with her. That led to a complaint to the police. SNE RE GaP Aa hl aN ae ae Re tenner 9S wane oie o In response to police questioning, the respondent admitted to engaging in sexual intercourse with the complainant. The statement of facts summarised his admissions in the following terms, He admitted engaging in sexual intercourse with S but stated that this. was only after the complainant made advances towards him by playing with his leg. He also stated that on prior occasions S had shown a romantic interest in him by holding his hand while they were sitting inthe back of her-father's- car: He-stated-that-he and-S. had kissed.and_that.S -had thrown her bedclothes off her before they had sexual intercourse. He stated that she had removed her own clothing including her underpants and that he rubbed her naked vaginal area for a short time before penetrating her. He had not totally removed his own trousers but had extracted his penis from his trousers in order to have. sexual intercourse with her. Although she had not stated her consent, hé believed she was a willing participant. From her appearance he believed her to be 14 or 15 years old and he stated that in any case S had told him she was 15 years old. He was aware that it was an offence to have intercourse with a person under 16 years of age. The respondent gave oral evidence in the sentencirig proceedings. He said that at the time of the offence he had an alcohol problem. He was on a disability pension. Before going to bed he had consumed four glasses of wine and four glasses of beer as well as his prescribed medication, Melleril." He confirmed the truth of his statement to police. Counsel for the Crown suggested to him in cross-examination that the complainant had not consented to the sexual activity and that she had indicated unwillingness to participate in it. The respondent denied each of those suggestions. The Crown called no evidence to support the suggestions so made. Accordingly, his Honour was bound to proceed with sentencing on the basis that the sexual intercourse which occurred had not only been consensual but had been initiated by the complainant. His Honour was also obliged to accept that the complainant had appeared to the respondent to be 14 or 15 and had told him that she was 15. That was the factual basis on which his Honour proceeded. N At the time of the offence, the respondent had only just attained the age of 19 years. His birth date was 18 November 1973. The personal circumstances of the respondent were not disputed. His parents had separated when he was very young. When he was 12 or 13 his mother remarried. The respondent did not enjoy a good relationship with his step-father. His school performance was, he thought, "average". An objective assessment would indicate that it was considerably less than average. Between February 1989 and 29 November '1993 the respondent had been sentenced for various offences of dishonesty. There were no sexual offences recorded against him. He was, as he confirmed in his evidence, sincerely regretful of the offence in question. He said that he had formed a relationship with a woman in Queensland and had good prospects of obtaining work as a plasterer. Both these matters reflected, it would appear, unrealistic expectations of perceptions on his part. The pre-sentence report noted a disturbed childhood. In his early teens the respondent had suffered depression and suicidal ideation. He had been subjected to violence by his step- father. He lived for a time on the streets until, at 17, he went to Melbourne. He began abusing alcohol and marijuana at the age of 10. By 15 he had progressed to the abuse of harder drugs. By 18 his alcohol and drug habit had expanded. He began stealing to maintain his habit. He had been prescribed anti-depressants since age 13 and had been hospitalised at that time because of his mental state. His disability pension, granted about a year after the current offence date, was because of his psychiatric condition. His attitude to the offence was described by the Corrections Officer who prepared the pre-sentence report as "naive, juvenile and very immature". The respondent -maintained that the complainant had initiated the sexual activity. He did not seem to the Corrections Officer to understand why his conduct was regarded as a serious offence. The respondent had since the offence date made sincere and effective efforts to improve his life, He had given up alcohol and illicit drugs. His unrealistic presentation led to psychological testing being recommended. It was undertaken. That assessment concluded that the respondent was developmentally disadvantaged and had an IQ below 70. Indeed, the author of the pre-sentence report expressed the view that the respondent had "the social operating capacity of a 10 year old child". That assessment was supported by a report from Dr Patrick Cullen, a psychiatrist. Thus, his Honour was faced with the task of sentencing a young man, aged 19 at the date of the offence, effectively with the mental capacity and the social and moral responsibility of a 10 year old who had been persuaded by a 12 year old girl to have sexual intercourse with her, she having pretended to him that she was 15. He had already spent a month in custody. It must be emphasised that this was the evidence which was placed before his Honour and was uncontradicted by the Crown. If there was another version of the facts as perceived by the _ complainant or her family, it was not one which was proved before his Honour. a: The importance of that consideration is illustrated by the "victim impact" evidence tendered by the Crown. A report from Marymead Children's Centre assessed the complainant following the offence and concluded, S has been traumatised by the assault and its consequences. However, the deleterious effects described by the author relate only to the consequences of \ the complaint, not the act which gave rise to it. Further that act is incorrectly described in the report as a "sexual assault" or "rape". An addendum to that report added to the confusion referring to the complainant as having been a victim of "sexual abuse". Again, whether the reference to "abuse of friendship and trust" referred to the respondent, as the author of the report seems tacitly to have assumed, or to others, is not clear. However, the facts as proved before his Honour did not support the observations or conclusion expressed in the report insofar as it was intended to refer to the impact of the offence in question. A report from Dr Sue Packer, a paediatrician; added further to the confusion. She described a prior incident in which the complainant had been sexually interfered with by "her mother's 'current boyfriend". Presumably, that was non-consensual. It may have explained the complainant's behaviour as it appeared from the evidence put before his Honour. It would also explain the history of serious behavioural disturbance exhibited by the complainant both before and after the offence in question. Again, Dr Packer wrongly assumed that the incident in December 1992 was "a sexual assault". Her opinion of the effect of the offence on the complainant was, therefore, unhelpful. It is also important to have regard to the legislative intention as revealed by the state of the statute law as at December 1992 in respect of such conduct as the respondent had engaged in. The provision creating the present offence was inserted into the Crimes Act 1900 in 1985. Prior to that date, the offence of carnal knowledge of a girl aged between 10 and 16, which is conduct similar to that engaged in by the respondent, carried a maximum penalty of 10 years imprisonment: see S71. Consent was no defence, see s77A, unless, pursuant to s77, the complainant had been, in fact at least 14, had consented and the offender reasonably believed that she had been at least 16. Section 92E replaced ss71, 77 and 77A. The relevant offence is now created by s92E(2). That sub-section provides, (2) A person who engages in sexual intercourse with another person who is of or above the age of 10 years but under the age of 16 years is guilty of an offence punishable, on conviction, by imprisonment for 14 years. That differs from the previous offence in that the young person concerned need not be female. Further, the definition of "sexual intercourse" covers sexual acts other than carnal knowledge: see s92. By previous s79, buggery of any person had been punishable by life imprisonment. That offence is, in respect of young persons, now covered, insofar as it remains an offence, by the terms of s92E(2). Thus, s92E(2) was, therefore, intended to cover a wide range of sexual acts with persons aged 10 to 16 years. Some previously carried higher, and others lower, penalties than that now prescribed by s92E(2). It is by no means apparent that there was a legislative intention that any more stringent approach be adopted towards conduct which would have been prohibited. under the previous s71 compared with acts of a similar. nature falling within s92E(2). The defence to a charge under s92E(2) was also changed from that which had been prescribed by the former s77. Section 92E(3) provides, (3) It is a defence to a prosecution for an offence under sub-section (2) if the defendant establishes that: . (a) he or she believed on reasonable grounds that the person upon whom the offence is alleged to have been committed was of or above the age of 16 years; or (b) at the time of the alleged offence, the defendant was not more than 2 years older ' than the person upon whom the offence is alleged to have been committed; and that that person consented to the sexual intercourse. Section 92E(3) thus, in the case of consensual sexual intercourse, refers not only to reasonable mistake as to age but also to the relative similarity in the age of the parties to the relevant sexual act. It follows that the effect of s92E is not to prohibit young persons over 10 years of age from engaging in sexual acts until after their 16th birthday, rather is it to protect such persons from sexual exploitation by persons older than themselves by more than two years. In R v McClymont, unreported, NSW CCA, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992, a male person was sentenced to 18 months imprisonment with an additional term of 6 months on two counts of engaging in. sexual intercourse with a girl then aged 12. He appealed against the severity of that sentence. The appellant was then 20 years of age or thereabouts. He had a previous criminal record and, at least whén the third offence occurred, knew the complainant was only 12. The girl had been a willing participant. He asked for three drug offences and another sexual offence to be taken into account. Mahoney JA proposed that the appeal be denied, commenting at 7, Sexual offences were committed with a girl of twelve years of age. Taking full account of the extent to which she cooperated willingly in what was taking place, one has to bear in mind that the purpose of the law is to protect such a person from that kind of activity. It is to protect her from, in a sense, her willingly participating in such activities. The applicant is a person of twenty two years of age or thereabouts [the offences were about 2 years before] and, if I may say so, without attempting to be judgmental, he knew better. Particularly he knew better after the police approached him. The law requires that protection be given to young persons even against their will. Whilst agreeing with Mahoney JA, Gleeson CJ commented at 8, If the only offences that Grogan DCJ was taking into account when sentencing the applicant were offences for what used to be called carnal knowledge of a twelve year old person ... then I would have thought the sentences were far too severe. There was no suggestion of any diminished mental capacity on the part of McClymont. In R v Herring, unreported, WA CCA, Pidgeon, Seaman and White JJ, 22 September 1994, the Crown appealed against a sentence imposed upon a male person aged 18 years 6 months in respect of two counts of sexual penetration and one of indecently dealing with a girl aged 12 years 11 months. The offender initially believed she was 15 or 16 but knew her true age at the time of the second offence. The offender was otherwise of good character and was of normal mental capacity and sexual inclination. White J noted at 12, that, under s319(2) of the Criminal Code (WA), a child not yet 13 years of age could not consent to a sexual act, The only significance, therefore, of consent is to negative the additional aggravation attendant upon the utilisation of force in the commission of the offence, which element of aggravation would ordinarily result in a much harsher punishment than would be otherwise appropriate in the absence of the use of force. In his Honour's opinion, a custodial sentence had been called for instead of the probation and community service orders in fact made. Any other disposition in such a case would but "rarely" be warranted. However, as the respondent had partially completed his community service order, it was not appropriate on a Crown appeal to alter the sentence imposed. It will be noticed that the law of Western Australia prescribed a much higher penalty than does s92E and distinguished between persons aged under 13 and others. The former were singled out for absolute protection against engaging in sexual acts whether as a result of exploitation or otherwise. It is the legislative intention to avoid the sexual exploitation of vulnerable young persons that renders offences against s92E deserving of deterrent sentences. That is a narrower legislative policy than was perceived by the Court of Criminal Appeal pursuant to the Criminal Code (WA) in Herring (supra) in relation to persons under 13 years of age. It was certainly open to his Honour to have concluded that, given the mental capacity of the respondent, the element of exploitation was much diminished if not, -in the circumstances, virtually eliminated. 1] ' Whilst the young girl was clearly an abused child, and no doubt acted as the evidence suggested she did because of that abuse, it was not a background of which the respondent was aware or for which he could have been held responsible. Personal deterrence was not really a factor. The respondent, his Honour was satisfied, had learnt that girls under 16 were "out of bounds". He was seriously addressing his personal problems. So far as general deterrence is concerned, it has been many times observed that it is inappropriate to choose a mentally retarded offender as an object for general deterrence. That is particularly so where, as in this case, the mental retardation can be seen to have played a part in the commission of the offence: see Parnis v R (1993) 126 ALR 423. When one adds to the above considerations the additional element that this is a Crown appeal seeking to increase a penalty not clearly suggested to the-sentencing judge by Counsel for the Crown to have been appellable, it seems to me that the appeal should be dismissed and I would so order. I certify that this and the 10 preceding pages are a true copy of the Reasons for Judgment of Higgins JJ. ae Associate: Pe CON Dated: 12 September 1995 Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: -- Solicitors forthe Respondent: ......... Date of Hearing: Date of Judgment: Mr T Budden Director of Public Prosecutions Ms A Tonkin _ Gilpin. & Associates 22 June 1995 12 September 1995 \