R v Fenwick, Adam [2009] NSWDC 195

New South Wales District Court

CITATION: R v Fenwick, Adam [2009] NSWDC 195

HEARING DATE(S): 17/02/09, 20/02/09, 08/05/09

JUDGMENT DATE: 29 May 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Granted conditional section 11 bail.

CATCHWORDS: Crinminal Law - Sentencing - Sexual Intercourse with person aged 14 but under 16 (x7) - s.11 bail - complainant aged 15 - offender aged 25 - genuine commitment between offender and complainant - non-predatory behaviour - protective purpose of legislation - on bail at time of offending - breach of trust towards complainant's parents - prominent drug and alcohol issues - low level of criminality.

LEGISLATION CITED: s.11 Crimes (Sentencing Procedure) Act 1999

PARTIES: Regina Adam Peter Fenwick

FILE NUMBER(S): 2008/00017994

SOLICITORS: Crown: Mr Stollery Defence: Mr D Tyler

JUDGMENT 1. Literature, poetry and drama have all been used as vehicles to assess issues involving the love between an older man and a significantly younger woman. 2. Adam Peter Fenwick aged twenty-five is before the court for seven counts of sexual intercourse with JMW at a time when she was under the age of sixteen but over the age of fourteen. 3. All of these offences occurred during a six-week period from 1 August 2008 to 15 September 2008. At the time of the offences Adam Fenwick was on bail. A condition of his bail was that he reside at the address of his "uncle" CW. JMW was the eldest of CW's six children. 4. This case raises issues as to the hallmarks of objective criminality to be discerned in proved s. 66C Crimes Act offences. Adam Fenwick today is to be held accountable by the sentencing options available to the court for his criminal conduct arising from these seven charges. 5. Fenwick had known of JMW all of her life. But his interest in her would appear to have commenced when the two "got together in Sydney". She was staying with family there and "we went to the movies and we kissed and stuff". Thereafter they did not see each other for a while. Whenever they did see each other they were "together sort of thing". (record of interview Q&A 42) 6. Further initial events are dated about one year before these offences are said to have occurred. The accused told police before they had kissed, "we were...just mates but I really liked her". (record of interview Q&A 46) When asked about the relationship since he had moved into CW'S home, Fenwick's response was "we sort of just see each other and be together whenever we could stealing kisses and stuff while no-one was looking and having a hug." "When no-one was looking we were together". (record of interview Q&A 54) He added "We were promised to each other..." that is, as I understood his evidence, neither were supposed to look elsewhere for other attachments. 7. The accused gives an account of JMW's attitude towards him. Apparently she had truanted school on a number of occasions to see him. He was not happy about that. It was she who revealed first her love for him before he told her of his love for her. They had been seeing each other for months before any sexual connection. 8. The agreed facts set out the first offences occurring in these circumstances:- a tent was set up in the rear yard of the residence some time early in August 2008. The complainant went out to the shed where the accused slept late one evening. After smoking cigarettes and kissing for a period the accused asked the complainant to walk outside and come into the tent, which she did. He and the complainant then had consensual penile/vaginal intercourse. He used a condom during that intercourse. They returned to the shed and shared another cigarette. The accused placed the used condom in a box containing his personal belongings. He later explained that he did not want to place the used condom in a garbage bin for fear of being caught. 9. Fenwick's account of this conduct in the record of interview in the tent is worse for recounting. It is to be found in questions 151-185. "We were kissing and stuff and then we got naked". He was asked whether he touched JMW first and he said, "I really don't know how to answer that". Asked whether they were touching each other he said, "we were both happy to be with each other. I know I didn't force anything on her and she didn't force nothing on me". He agreed that he was well aware that she wanted to have sex with him and that he wanted to have sex with her. Having finished the intercourse he was asked at Q181. "What did you do then?" and he answered "We cuddled". He was unsure how long they stayed in the tent. They just cuddled and whispered and were just happy. While detail of the other six offences is not available to demonstrate the consensual intimacy of each occasion, there can be no doubt that each was a loving encounter. 10. I come to the agreed facts of offences 2 through to 7. The offender's grandmother who formerly resided in Sydney, moved into unit 7/13 Avoca Street Goulburn. Prior to her moving in the offender had a key to the unit. At around 12.30 on Tuesday the 16th he and the complainant walked from Kerr Place to Avoca Street. He used his key to enter the grandmother's unit and he and the complainant had consensual penile/vaginal intercourse in the lounge room. Charges 3 and 4 occurred between 1 August and 15 September when the offender took the complainant to Tattersall's Hotel in Goulburn, paid for a room and there had penile/vaginal intercourse with JMW. Charges 6, 7 and 8 occurred between 1 August and 15 September on three separate occasions in a tent set up in the backyard of the premises he was then bailed to. Objective Criminality 11. The court's task is to assess the objective criminality of this offence by comparing it with offences of a similar kind. It is in that way that the objective seriousness of this offence can be assessed. The objective seriousness is one of the important determinative factors in the ultimate outcome of a case such as this. 12. At a minimal level the objective criminality requires an acceptance that each of the essential elements of the offence be established; namely sexual intercourse with the complainant being at the time between the ages of fourteen and sixteen years. On the admissions by the accused's plea, by agreement to the facts and by his interview, all of the elements are proved. Consent of the complainant is not, at least in the circumstances of this case, a defence. That clearly indicates that the purpose of s 66C is about the protection of young children under the age of sixteen, because of a power imbalance existing between the child on the one hand and the mature adult on the other. The mature adult I might add, is usually a male. 13. An analysis of the history of s 66C and its equivalent in other jurisdictions gives insight into the purposes of s 66C as it appears in its modern form. In its older form, its predecessor was in England. And in England until the 1880s there had been no statutory sanction against men having sexual intercourse with females above the age of twelve years. Presumably that situation still reflects the common law position. Breathtaking as that may seem to us in New South Wales today, the Attorney of this State in 2003 in his second reading speech to the most recent amendments to this area of the law made this observation: "The age of consent in France is fifteen. In Italy the uniform age of consent is fourteen. In Germany sixteen, Poland and the Czech Republic have an equal age of consent of fifteen, while in Spain it is thirteen". 14. In New South Wales in 1883 the Criminal Law Amendment Act made carnal knowledge of a girl of or above the age of ten and under the age of fourteen liable to ten years penal servitude. In the United Kingdom the Criminal Law Amendment Act 1885 made carnal knowledge of a girl of or above the age of thirteen and under sixteen a misdemeanour. 15. It can be seen from a study of the history of these offences, two things; firstly, that our Parliament was well aware of the lower ages in other jurisdictions but nonetheless chose to protect girls under the age of sixteen; and secondly, that there has been a general trend upwards moving the age towards sixteen throughout the world. 16. The Government of New South Wales is interested in protecting all boys and girls under the age of sixteen. The age of sixteen has not been plucked from a Ouija board. The history just outlined reveals a rising of the age of consensual intercourse for girls from perhaps as low as twelve in the nineteen century to sixteen in modern times. That can only be because [parliament recognises] judgments would be made by girls under sixteen who were emotionally and psycho-sexually immature - too immature to consent to sexual experiences. 17. The age of consent for sexual activity is a matter that parliament can set and set as an absolute if it wished. Over the past 125 years that rising age from twelve to sixteen for women, and in fact lowering the age from eighteen to sixteen for men, has occurred because after study the general consensus is that sixteen is the very lowest age children are in any position to consent. Even then one has to be careful of power imbalance issues. 18. Whatever may have been the reality, or the reality so far as Adam Fenwick was concerned, in the eyes of the law JMW was too young to participate in sexual activity. Her psycho-sexual development by standards applied today in New South Wales is deemed by the law to be too immature in its development for consensual sex. 19. It may well be the accused in all sincerity differs in this assessment, but he would have to concede he is too biased and too emotionally involved to make an objective assessment. 20. The objective criminality I am dealing with is, the man of goodwill and loving disposition towards the complaint with her encouragement participated in sexual intercourse with her on seven occasions in circumstances where the law says her emotional and psycho-sexual development were too immature. 21. Let us look at that. Fenwick presents in court as a strikingly handsome and presentable young man. It is easy to see how JMW became infatuated with him. Given her youth and for other reasons I shall explain, it would be impossible to find that she loved him in any way reflecting a mature person's concept of that word. There can be little doubt her girl-like expressions of "love" to him were genuinely and sincerely expressed and understood by the accused as such. As Leonardo Da Vinci's Last Supper portraits of St John and Judas Iscariot so clearly demonstrate, life experiences and age may work cruelly on the ephemerality of looks, for Judas Iscariot and St John are the same man but so different in their appearance after he had aged fifteen years. 22. While his [Fenwick's] looks and presence may have suggested mature manliness and strength his past life suggests otherwise. He is a young man with more than normal personal baggage and real problems, including real problems with alcohol. The complainant's immaturity would have been blind to all this. He is probably an alcoholic. If not, there is no denying he has longstanding massive issues with alcohol that have not resolved during this period. He also has real anger management issues that have not been resolved during this period. He has past and unresolved criminal justice issues. He has been a risk- taker in the past and his risk taking has seen him in trouble with the law. He was about to embark with her upon other episodes of risk taking including occasions of intercourse and drinking with a minor in a public park, when things unravelled for him. It would appear from the evidence that she appreciated none of his personal background issues in any mature way. She was taken by his charm, his deep sense of personal commitment and his body. He did not have the discipline in the circumstances to say "No" to her when she was keen. 23. Nonetheless these are not offences where there was manipulation, grooming, predatory behaviour, reluctance on the part of the under sixteen year old, or any form of callousness. Until brought up by the authority of the parents and the law, while the offender recognised what he was doing was illegal, he did not believe it to be harmful. To the contrary, he thought he was expressing his love for her. That she was immature seems apparent from her school truanting because of a desire to see him and also possibly by the tensions existing between the complainant and the offender on the nights prior to his arrest. There is no evidence of any harm being occasioned to the complainant. Clearly there is tension between her family and the offender. Her attitude to the offender since the arrest has not been revealed. 24. There is an age gap of twelve years between the complainant and Fenwick. There are many rewarding relationships in life between partners having an age difference of that, or sometimes of even greater magnitude. But the law seeks to protect those relationships beginning before a child is sixteen, at least from the sexual component of any relationship for reasons I have already mentioned. Even though the offender may have believed he was acting lovingly towards the complainant, despite his knowledge of the law's prohibition against his conduct, and because of it, he was breaching the trust the law requires of him towards the complainant. 25. The parents of the complainant are secondary victims of his conduct. Although he may not use that label towards them, he seems to realise his acts have caused them consternation. He has expressed regret for this. His conduct was in breach of their trust bestowed upon him when they opened their house to him in circumstances where he was desperate to be relieved of gaol, and to accept his bail conditions. That he had sexual conduct was also in breach of his bail conditions and aggravates the criminality of each offence. Nonetheless I come to a finding that the offences are really towards the bottom of the range, but the repetition of each offence must add to the total criminality. 26. These initial events were not planned. It is likely the hotel incidents were. On five of the seven occasions he had protected sex. It would appear on two occasions he did not. His prior sexual history is unknown to me, or to others concerned here. I have made the point that the law is concerned for the safety of those who are too young to be aware of sexual health issues. On those occasions when the sexual encounter was an unprotected one, the criminality must necessarily be greater. 27. The establishment of the elements of the offences and the proof of those aggravating features I have referred to must be balanced against the circumstances existing between Adam Fenwick and JMW before the overall objective criminality is determined. The Crown does not challenge his intention towards JMW was a loving and well meaning one. At the end of the day the criminality of each offence is towards the lower end of the range. The totality I also regard as still within the low parameters. Subjective Matters 28. Adam Fenwick is now a twenty-six year old man, aged twenty-five at the time of the offences. He was born in Goulburn and raised in Goulburn and Bellingen. There is an older brother, five years his senior, and a sister aged ten. His parents separated some years ago; the father moving to Sydney, the mother remaining initially in Bellingen but now I think in Goulburn. She is seriously ill with diabetes and kidney problems. The older brother is not in trouble with the law. Perhaps because of the mother's illness, Fenwick was not supervised to any great extent during his teenage years. By seventeen he was staying with friends and associates including persons ranging up to thirty years whose primary interests were drinking alcohol and "hanging around the riverside". At sixteen he came to Sydney to be with his father but that did not work out. He felt unwelcome. The father had a new partner. He moved in with friends at Waterloo. He was drinking heavily. There was an itinerant quality to his life. He lived in Queanbeyan for a couple of months, moved back to Goulburn, then Sydney. He worked in Sydney in a factory or at other jobs earning money but not gaining, so far as I can tell, any work skills. At Goulburn he worked with AFS working on or with aluminium. 29. He has a growing criminal history associated particularly with his alcohol abuse. It would seem to me, from knowledge I have gained in another case, that even perhaps during this period he was abusing alcohol in circumstances where he was involved in a fight. Again, an example of risk taking while consuming alcohol. He has had serious problems with illicit drugs, particularly cannabis and methylamphetamine. He had spent four months in a rehabilitation program up until 2007 but relapsed after leaving the program. He has also gambled extensively but he says did not waste much time on it. 30. I do not gain any sense from his offending conduct that he is a predatory sexual offender. As a consequence of his conviction, as must necessarily happen for these offences, he will be placed on a register. Can I indicate to those overseeing that register that my view is, that close consideration should be given to these offences and the circumstances of their occurrence, as I have set them out, when determining whether to maintain bans that would necessarily be put in place, particularly in respect to his young sister. 31. It is appropriate in my view to give to this offender an opportunity to demonstrate that he can rehabilitate, that is to say stay off or away from alcohol and illicit drugs. For that purpose rather than sentence him today to a further period of incarceration, I intend to place him on a s 11 bond to be of good behaviour for a period of nine months from today. 32. The conditions of the bail will be that he is to be of good behaviour, that he is to abstain from the consumption of all alcoholic beverages for the duration of the bail. Consumption of any alcohol for any purpose, including a celebratory purpose related to birthday or Christmas, will be deemed a breach of bail. He is to abstain from the consumption of any non-prescribed drug other than cigarettes. Any consumption of illicit drugs will be deemed a breach of bail. He is to submit to random urine testing for detection of cannabis or any other illicit drug. Failure to supply urine, or the supplying of urine that is not his, will be deemed a breach of bail. Consumption of those illicit drugs will also be deemed a breach of bail. 33. (Residential requirements were set out in the original judgment). He will accept supervision by Probation and Parole and accept all reasonable directions of his case management with Probation and Parole, and for that purpose he will report to the Probation and Parole office at Chatswood by 5 pm on Monday night. Failure so to do will be deemed a breach of bail. 34. He will seek to do all he can to find and maintain employment hopefully in an industry that will give him work skills. He will need in three months time to show me evidence that he has sought employment by dockets regularly from some employment agency. He will attend a Commonwealth employment agency by Friday 5 pm next week and make an application to have a personal program manager to assist him obtain employment and to deal with such issues as may be impeding his employment. In the event that there is a waiting list for such a person, he will need to get evidence of that next time he comes before me. 35. I wish to be notified of any breach of the bail conditions by police or Probation and Parole within forty-eight hours of such breach. 36. I also note on the record that a breach of the conditions in relation to alcohol or drugs will be sufficient, if proved to the satisfaction of the arresting officer, for him to be incarcerated and arrangements made to return him to me. 37. If there is any AVO in place he is to abide by the conditions of the AVO, but if he wants to go and visit his mother and grandmother I do not have a problem with that. 38. You are going to have to also notify your own solicitor of a change of address and within twenty-four hours, and he, in turn, will have to notify the Crown. It is no doubt that as soon as your address is changed you will be back before me so that I can satisfy myself it is a safe place for you to be.