SUPREME COURT OF NORFOLK ISLAND

The Queen v Christian (No 2) [2018] NFSC 4

ORDERS

THE COURT ORDERS THAT:

1.    The offender, Tiaan Linley Christian, is convicted on counts 2, 3, 4, and 5 in the indictment dated 5 April 2018, and count 1 in the indictment dated 25 May 2018.

2.    In relation to count 2 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 9 months to commence on 7 June 2018 and expire on 7 March 2019.

3.    In relation to count 1 in the indictment dated 25 May 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 September 2018 and expire on 7 September 2019.

4.    In relation to count 3 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 December 2018 and expire on 7 December 2019.

5.    In relation to count 4 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 March 2019 and expire on 7 March 2020.

6.    In relation to count 5 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 June 2019 and expire on 7 June 2020.

7.    Pursuant to s 39 of the Sentencing Act 2007 (NI), the execution of the whole of the sentence is suspended for the period of two years subject to the following conditions:

(a)    the offender, Tiaan Linley Christian, be of good behaviour for the period of two years; and

(b)    the offender, Tiaan Linley Christian, enter into a home detention order pursuant to s 43 of the Sentencing Act for the period of 12 months subject to the terms and conditions specified in the following order.

8.    The home detention order entered into by the offender, Tiaan Linley Christian, be subject to the following terms and conditions. The offender, Tiaan Linley Christian:

(a)    must not leave [redacted for privacy reasons] (“approved residence”) except at the times and for the periods as prescribed or as otherwise permitted by a magistrate or the Officer in Charge of the Norfolk Island Police (“the supervisor”);

(b)    must obey all reasonable directions of a magistrate or the supervisor;

(c)    must be of good behaviour and must not commit any offence;

(d)    must reside only at the approved residence or any other premises approved in writing by the supervisor;

(e)    must remain at the approved residence or any other premises approved in writing by the supervisor at all times other than:

(i)    when engaged in activities approved or arranged by the supervisor, or

(ii)    when faced with immediate danger (such as in a fire or medical emergency) and must advise the supervisor as soon as practicable after leaving the approved residence due to immediate danger;

(f)    must adhere to an approved activity plan during approved absences from the approved residence;

(g)    must submit to searches of places or things under his immediate control as directed by the supervisor;

(h)    must comply with any direction of the supervisor in relation to association with specified persons or class of persons;

(i)    must not consume alcohol;

(j)    must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained;

(k)    must submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use as directed by the supervisor;

(l)    must engage in personal development activities or in counselling or treatment programs, as directed by the supervisor;

(m)    must authorise his medical practitioner, therapist, counsellor or other professional involved in any treatment or assessment of the offender to provide information about the offender to the supervisor;

(n)    must accept any direction of the supervisor in relation to the maintenance of or obtaining of employment;

(o)    must inform any employer of the home detention order and, if so directed by the supervisor of the nature of the offence that occasioned it;

(p)    must authorise contact between any employer of the offender and the supervisor;

(q)    when not otherwise employed, the offender must undertake community service work (not exceeding 20 hours per week), as directed by the supervisor;

(r)    must not have any planned contact with the complainant, [redacted for privacy reasons], either directly or indirectly;

(s)    must not obtain or use a mobile telephone, or use any other telephone, unless permitted to do so in writing by the supervisor and must adhere to any conditions of such usage prescribed by the supervisor;

(t)    must, if approval by the supervisor is granted under condition (s), provide to the supervisor the details of the mobile telephone number or other telephone obtained or used by the offender and must provide the supervisor with access to the mobile telephone on request;

(u)    must not use any computer or electronic communication device unless permitted to do so in writing by the supervisor and must adhere to any conditions of such usage prescribed by the supervisor;

(v)    must, if approval by the supervisor is granted under condition (u), provide the supervisor with access to the computer or electronic communication device on request;

(w)    must not leave Norfolk Island without the prior written approval of the supervisor and must adhere to any conditions imposed by the supervisor relating to any approval granted;

(x)    must not possess or have in his control any firearm or other offensive weapon.

9.    The offender and the Crown have leave to apply to the Court on 7 days’ notice for any variation of the terms and conditions of the home detention order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    On 5 June 2018, the offender, Mr Tiaan Linley Christian, was arraigned and entered pleas of guilty to five counts of the offence of sexual intercourse with a young person contrary to s 113(2) of the Criminal Code 2007 (NI). The offender first indicated that he would plead guilty to four of those counts before the Chief Magistrate at a very early stage of the proceedings. The offender had not previously been charged with the fifth count. He was originally charged with the offence of maintaining a sexual relationship with a young person contrary to s 114 of the Code. He had entered a plea of not guilty to that count. His trial in respect of that count was due to commence on 4 June 2018. On 31 May 2018, however, the Court was formally advised that the Crown would not be proceeding with that count and that the offender would, instead, plead guilty to a further count pursuant to s 113(2) of the Code.

2    It now falls on the Court to impose a sentence on the offender in respect of the five counts in the indictment.

THE OFFENDING CONDUCT

3    The facts concerning the offending conduct were not in dispute. They were set out in a Statement of Facts tendered by the Crown without objection. Following is a brief summary of the facts.

4    The offender and the complainant, who I will refer to as Ms A, both reside on Norfolk Island with their families. They have known each other through family and friends for a number of years. At the time of the first offence, the offender was 19 years old. Ms A was 13 years old and was in year 8 at school.

Offence committed on 26 August 2017

5    A short time prior to 26 August 2017, the offender and Ms A began communicating through social media. Some of those communications had a sexual content. Specifically, the offender asked Ms A if she wanted to “do it” with him; a clear enough reference to sexual intercourse. Ms A made it clear to the offender that she was 13 years old.

6    On the evening of the first offence, Ms A was at home with her [redacted]. One of Ms A’s friends, who I will refer to as Ms B, was having a sleepover at Ms A’s house that night. The offender was sending text messages to Ms A during the evening. In those messages, the offender asked Ms A if she wanted to go for a “cruise” with him in his car that night after he finished work and if she was willing to “do things” on the cruise.

7    It is again readily apparent that the reference to “do things” was a reference to sexual intercourse, or at least sexual contact of some kind. There is also no reason to doubt that Ms A understood what the offender meant. Ms A’s response was “let’s go on a cruise and see what happens”.

8    At about 9.30pm, the offender called Ms A and told her to meet him at a location a short distance from her house. Ms A and Ms B walked to that location and met the offender, who was in his car. There were several bottles of alcoholic apple cider and vodka “cruisers” on the back seat. The offender told the girls that they could help themselves to the drinks. The offender then drove the girls to Mount Pitt. During the trip, and on Mount Pitt, Ms A drank two bottles of cider and one cruiser. She subsequently told the police that she did not feel affected by the alcohol on the night in question.

9    A short time later, the offender and the two girls drove to a reserve near Headstone Reserve. There, the offender and Ms A exited the car, taking some cruisers with them. Ms B remained in the car.

10    The offender and Ms A started to hug and kiss. They walked to a grassed area away from the vehicle. There, they lay down. The offender helped Ms A to remove her jeans and underwear. Ms A asked the offender to put a condom on, which he did. They then had sexual intercourse. After a couple of minutes, Ms A felt stressed and asked the offender to stop, which he did immediately. They then returned to the car.

11    Shortly thereafter, the offender drove the girls back to Ms A’s house. Ms A told Ms B that she and the offender had had sex and that it was her “first time”.

12    At some stage, Ms A’s [redacted] must have become aware of the events. It is unclear how. On 2 October 2017, Ms A’s [redacted] took Ms A to the police station and a complaint was made. Ms A made a statement to the police on 3 October 2017. The offender was interviewed by the police, together with his legal adviser, on 14 December 2017. He admitted having sexual intercourse with Ms A and that he knew she was under 16 years of age.

13    The offender was charged with the first offence on 14 December 2017. He was also charged with two offences of supplying liquor to a minor contrary to s 66(a) of the Liquor Act 2005 (NI). He was granted police bail.

14    On 19 December 2017, following a review by the Chief Magistrate of the granting of police bail, the accused was granted bail on conditions. Those conditions included that he have no contact directly or indirectly with any prosecution witnesses, including Ms A, Ms B and another friend of Ms A’s, and that he not approach within 100 metres of Ms A and her two friends.

Offence committed on 18 January 2018

15    The events the subject of the new count in the indictment, that had not previously been charged, occurred on 18 January 2018. As discussed in more detail later, it appears that these events were not apparent to the police or prosecuting authorities until recent times.

16    [redacted], they recommenced communications on social media. Amongst other things, Ms A and the offender discussed the fact that the offender’s bail conditions prevented him from seeing her. They returned to Norfolk Island on the same flight on 30 December 2017.

17    A week or two after their arrival back on Norfolk Island, the social media communications between the offender and Ms A again turned to matters sexual in nature. The offender asked Ms A if she would consider having sex with him again. Ms A agreed.

18    On about 18 January 2018, the offender and Ms A exchanged text messages while both were at work. Ms A asked the offender to message her when he finished work. The offender did so, and asked Ms A if she wanted to be picked up. Ms A agreed. At about 10.00pm, Ms A walked a short distance from her house to where the offender was waiting for her in his car. They drove to Puppies Point Reserve before parking at Headstone Reserve.

19    At Headstone Reserve, the offender parked his car behind some bushes. The offender and Ms A talked for a while before the offender suggested that they have sex. They undressed and had sexual intercourse in the back of the offender’s car. The offender used a condom. The offender later drove Ms A home. She arrived home at about 11.00pm.

20    Ms A had an application, or “app”, on her mobile telephone that allowed her to record information concerning her health and sex life during her menstrual cycle. She recorded that she had “protected sex” on 18 January 2018.

Offences committed on 25, 31 January and 8 February 2018

21    The facts and circumstances relating to the offence that occurred on 25 and 31 January 2018 and 8 February 2018 are not entirely dissimilar to the facts relating to the 18 January offence. There are, however, some relevant points of difference.

22    On the evening of 25 January 2018, the offender and Ms A were communicating via text message when the offender invited Ms A to go for a drive with him. Ms A met the offender near her house at around 9.30pm and they drove to Kingfisher. There, the offender and Ms A got into the back of the car and had sexual intercourse. The offender drove Ms A back to the vicinity of her home by about 11.00pm. Ms A recorded on the “app” on her phone that she had “protected sex” on 25 January 2018.

23    On the evening of 31 January 2018, the offender and Ms A were again communicating with each other by text. The offender asked Ms A to go for a drive after he finished work. She agreed. Ms A snuck out of her bedroom and the offender picked her up near her home. They drove to Middle Beach where the offender asked Ms A to go for a walk. They ended up having sex on the beach. Ms A does not think that the offender used a condom. She recorded, on the “app” on her phone, that she had “unprotected sex” on 31 January 2018.

24    On the evening of 8 February 2018, the offender sent a text message to Ms A asking if she wanted to meet after he finished work. Ms A agreed, but said she did not think she could have sex because she had just finished her period and was not in the mood. The offender said that was “fine”. The offender picked Ms A up in his car near her house and they went for a drive, ending up at Lime Kiln. There, the offender asked Ms A if she wanted to lie down in the back of the car. After lying down, they started hugging and kissing. They had a conversation during which Ms A said they could have sex if the offender wore a condom. He agreed, however Ms A realised during the ensuing intercourse that the offender was not wearing a condom. Ms A repeatedly told the offender not to get her pregnant. The offender did not ejaculate during intercourse. Ms A arrived home at around 11.30pm and recorded on her “app” that she had “unprotected sex” that evening.

25    Ms A told a friend about what had been taking place with the offender. The police, in due course, contacted Ms A’s parents. Ms A subsequently made a further statement to the police. The offender was interviewed again by the police on 11 February 2018 and made admissions in relation to communicating with Ms A and having sexual intercourse with her in breach of his bail conditions.

Further charges, bail and pleas of guilty

26    Following his arrest and interview by the police on 10 and 11 February 2018, the offender was charged with a further three counts of having sexual intercourse with a young person between 13 January 2018 and 8 February 2018. He was also charged with an offence of maintaining a sexual relationship with a young person between 26 August 2017 and 10 February 2018 contrary to s 114 of the Code. That offence carries a maximum penalty of life imprisonment. The offender was refused police bail.

27    The offender appeared before the Chief Magistrate on 12 February 2018 and was refused bail. On 16 February 2018, however, the matter came back before the court as a committal mention. The offender entered pleas of guilty to each of the offences of sexual intercourse with a young person. He pleaded not guilty to the maintaining a sexual relationship charge. The question of bail was revisited. The Chief Magistrate ultimately granted the offender bail on strict conditions. They included, in summary, conditions which required the offender to reside in Bundaberg, Queensland with his parents and to be subject to their constant supervision. The offender spent a total of seven days in custody prior to the grant of bail.

28    An application to this Court by the Crown to revoke the grant of bail to the offender was dismissed on 2 March 2018: The Queen v Tiaan Linley Christian [2018] NFSC 2.

29    The offender maintained his plea of not guilty to the offence of maintaining a sexual relationship. The offender’s trial in respect of that count was listed to commence on 4 June 2018.

30    On 25 May 2018, however, the Commonwealth Director of Public Prosecutions, who is now responsible for prosecutions on indictment on Norfolk Island, gave notice that the charge of maintaining a sexual relationship with a young person would not be proceeded with. On the same day, the Director signed an ex officio indictment containing the charge of sexual intercourse with a person under the age of 16 years that was committed on 18 January 2018.

31    The Court was formally notified on 31 May 2018 that the maintaining a sexual relationship charge would not be proceeded with, and that the offender would plead guilty to an additional charge of sexual intercourse with a person under 16 years of age.

NORFOLK ISLAND SENTENCING LAW

32    The offence of engaging in sexual intercourse with a person under the age of 16 is punishable, on conviction, by imprisonment for up to 14 years.

33    By reason of s 119 of the Sentencing Act 2007 (NI), where the Court finds an offender guilty of a sexual offence, the Court must record a conviction and must order that the offender serve a term of actual imprisonment, or a term of imprisonment that is suspended in whole or in part. The Court may also make any other order in addition to those orders. An offence under s 113 of the Code is a sexual offence for the purposes of s 119 of the Sentencing Act: see s 3(1) of, and Sch 2 to, the Sentencing Act.

34    Section 5(1) of the Sentencing Act provides that the only purposes for which sentences may be imposed on an offender are: to punish the offender to an extent or in a way that is just in all the circumstances; to provide conditions in the Court’s order that will help the offender to be rehabilitated; to discourage the offender or other persons from committing the same or a similar offence; to make it clear that the community, acting through the Court, does not approve of the sort of conduct in which the offender was involved; to protect the Norfolk Island community from the offender; or a combination of two or more of those purposes.

35    Section 5(2) of the Sentencing Act contains a non-exhaustive list of factors or considerations that the Court must have regard to in sentencing an offender. Those factors include, relevantly, the maximum, and any minimum, penalty prescribed for the offence; the nature of the offence and how serious the offence was, including any physical, psychological or emotional harm done to a victim; the extent to which the offender is to blame for the offence; the offender’s character, age and intellectual capacity; the presence of any aggravating or mitigating factor concerning the offender; the nature and extent of the offender’s role and position in society and whether the offender took advantage, or sought to take advantage, of that role or position; the prevalence of the offence; whether the offender pleaded guilty to the offence and, if so, the stage in the proceeding at which the offender did so or indicated an intention to do so; time spent in custody by the offender for the offence before being sentenced; and any other relevant circumstance.

36    Division 5 of the Sentencing Act contains provisions relating to custodial orders.

37    Section 39 of the Sentencing Act provides for suspended sentences of imprisonment. It is relevantly in the following terms:

(1)    A court which sentences an offender to a term of imprisonment of not more than 5 years may make an order suspending the sentence if it is satisfied that it is desirable to do so in the circumstances.

(2)    An order suspending a sentence of imprisonment may suspend the whole or a part of the sentence and the order may be subject to such conditions as the court thinks fit.

(3)    A court shall not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to this Act.

(4)    Where an offender is convicted of more than one offence in the same proceeding, a court may only make an order suspending a sentence of imprisonment imposed by it where the aggregate period of imprisonment imposed in respect of all the offences does not exceed 5 years.

38    Section 40 provides that an offender in respect of whom a suspended sentence has been imposed under s 39 has to serve the sentence or part of the sentence held in suspense only if he or she is ordered to do so under s 42. Section 42 provides for the situation where an offender whose sentence has been suspended either commits another offence or breaches a condition to which the order suspending the sentence is subject. In summary, in those circumstances the offender may be arrested and brought before the Court. The Court may then, amongst other things, restore the sentence or part sentence held in suspense and order that the offender serve it, or extend the operational period to a date after the date of the order suspending the sentence.

39    Section 43, which is within Division 5, makes provision for home detention orders. It is relevantly in the following terms:

(1)    A court which sentences an offender to a term of imprisonment may make an order suspending the sentence on the offender entering into a home detention order where it is satisfied that it is desirable to do so in the circumstances.

(2)    A court shall specify in the order the premises or place at which the offender is to reside or remain and the period, not exceeding 12 months, that the order is to remain in force.

(3)    A home detention order may be subject to such terms and conditions as the court thinks fit including, but not limited to, that the offender –

(a)    not leave the premises or place specified in the order except at the times and for the periods as prescribed or as otherwise permitted by a magistrate or a police officer;

(b)    wear or have attached a monitoring device in accordance with the directions of the Chief Magistrate, and allow the placing, or installation in, and retrieval from, the premises or place specified in the order of such machine, equipment or device necessary for the efficient operation of the monitoring device; and

(c)    obey the reasonable directions of a magistrate or police officer.

40    Importantly, having regard to the terms of s 119 of the Sentencing Act, it may be noted that a home detention order may be made when an offender is sentenced to a term of imprisonment which is suspended. It would, in those circumstances, appear that an available sentencing option in the offender’s case is to suspend any sentence of imprisonment which is otherwise considered to be appropriate on the offender entering into a home detention order under s 43 of the Sentencing Act. The Crown did not dispute that home detention was an available sentencing option under the Sentencing Act, despite the terms of s 119.

41    Whether such a sentence would be appropriate is another matter. The Crown’s primary submission was that, in all the circumstances, the appropriate sentence in the offender’s case was a sentence of actual imprisonment.

42    Subdivision 3 of Division 5 of the Sentencing Act makes provision for periodic detention. It is unnecessary to give any detailed consideration to those provisions. That is because periodic detention is not an available sentencing option having regard to the terms of s 119 of the Sentencing Act. Section 49(1) of the Sentencing Act makes it clear that periodic detention is an alternative to a sentence of imprisonment. It is, therefore, neither a sentence of actual imprisonment, nor a sentence involving a term of imprisonment that is suspended, as required by s 119.

43    Subdivision 4 of Division 5 of the Sentencing Act contains provisions relevant to sentences of imprisonment. Relevantly, s 87 provides that, unless otherwise provided in the Act or by the Court, where an offender has been sentenced to serve a term of imprisonment for an offence and is sentenced to serve another term of imprisonment for another offence, the term of imprisonment for the other offence is to be served concurrently with the first offence. Section 88, however, in effect provides for cumulative terms of imprisonment. Where an offender has been sentenced to serve a term of imprisonment for an offence, and is sentenced to serve another term of imprisonment for another offence, the Court may direct that the term of imprisonment for the other offence start from the end of the term of imprisonment for the first offence or an earlier date. Section 89 of the Sentencing Act provides for aggregate terms of imprisonment for multiple offences. It does not, however, apply in cases involving sexual offences.

44    Section 134 of the Sentencing Act provides that where the Court may attach a condition to an order or require an offender to give an undertaking, the Court may, as a condition of the order or as part of the undertaking, require an offender to undertake a prescribed treatment program.

45    Part 6 of the Sentencing Act contains provisions relating to release on parole. The Sentencing Act does not, however, contain any detailed provisions concerning the fixing of non-parole periods, other than in respect of the crime of murder.

46    The final provision of the Sentencing Act that is relevant to this matter is s 142, which provides for the presentation of victim impact statements or reports in certain circumstances. Little guidance is given in relation to how such a statement or report is to be taken into account, other than that s 142(4) provides that the Court should consider any victim impact statement or report in relation to an offence before determining the sentence to be imposed in relation to that offence. It should also be noted that s 142(10) provides a right of cross-examination of the person who signed or presented the victim impact statement.

RELEVANT PRINCIPLES

47    Before considering the factors or considerations that are of particular relevance to the imposition of an appropriate sentence on the offender in this case, it is useful to outline some relevant principles that may be derived from decisions in other jurisdictions concerning offences in similar terms to s 113 of the Code.

48    The offence in s 113 of the Code is plainly a very serious offence. That is readily apparent from the fact that the legislature has seen fit to make the offence punishable by imprisonment of up to 14 years. One of the difficulties in sentencing for such an offence, however, is that it can be committed in such a wide variety of different circumstances: R v Sea (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Wood and Badgery-Parker JJ, 13 August 1990); R v Taylor; R v Simons; R v Roberts [1977] 3 All ER 527 at 529; R v KB; R; JL; R v RJB [2011] NSWCCA 190 at [53]; R v Clifford; ex parte Attorney-General (Qld) [2006] QCA 492 at [23] (Keane JA with whom Williams JA and Chesterman J agreed).

49    The principal aim of the offence, which does not involve any defence of consent on the part of the victim, is to protect children and young adolescents not only from older and more mature persons who might seek to take advantage of them, but also from themselves: R v Thai Nguyen (2001) 124 A Crim R 477 at 481 (Chernov JA, with whom Callaway and Buchanan JJA agreed); Kakai v The Queen (unreported, Court of Appeal of the Supreme Court of Western Australia, Malcolm CJ, Ipp and Anderson JJ, 23 February 1999 at p 9).

50    The age of the victim is generally relevant to the question of objective seriousness; that is because it is generally the case that the younger the victim, the greater the likelihood of exploitation: R v KB at [58]; R v T (1990) 47 A Crim R 29 at 30; MLP v The Queen (2006) 164 A Crim R 93; [2006] NSWCCA 271 at [22]. Even this proposition, however, must be considered having regard to the facts and circumstances of the particular case.

51    Another relevant factor is the age of the offender and the difference in, or comparison between, the age of the victim and the age of the offender: R v Nelson [2016] NSWCCA 130 at [14] (Basten JA, with whom Rothman J agreed; see also Fagan J at [93]); R v Lee [2010] NSWCCA 88 at [31]. As a general proposition, it would seem that the greater the age differential between the offender and the victim, the more serious the offence. It has been observed in some cases, however, that an age difference between a 13-year old girl and an 18-year old man is nonetheless significant. In R v Nelson, for example, Basten JA (with whom Rothman J relevantly agreed) said (at [25]) that “[a] young girl may more readily be dominated by an older man, but may also be more susceptible to manipulation and persuasion by a young man who is undoubtedly older than she is, but is closer to her own age than an abusive adult”.

52    Again, much will depend on the particular facts and circumstances of the case in question. Ordinarily, an offender’s relative youth and immaturity will be a relevant mitigating consideration: Nanya v The State of Western Australia [2016] WASCA 169 at [56]; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [4]-[6]. The sentencing of a youth, who is not a minor, must take into account the youth’s age and immaturity: MJ v R, CPD v R [2010] NSWCCA 52; R v LNT [2005] NSWCCA 307 at [70]; R v Nelson at [73] (per Rothman J).

53    An offence which occurred in circumstances where the offender was in a position of trust or influence in relation to the victim, or where the sexual intercourse was the result of threats, force, pressure, manipulation or other predatory conduct would, almost self-evidently, generally be considered to be more serious than an offence committed in the absence of such features: R v Nelson at [94] (per Fagan J, in dissent in respect of the result); R v Sea; R v Schwenke [2004] NSWCCA 289 at [15]. An offence committed in circumstances where the victim is a willing participant in the sexual activity, or where the offender and the victim were in a form of romantic or so-called “boyfriend/girlfriend” relationship, would also generally be considered to be less serious: Hogan v The Queen (2008) 186 A Crim R 52 at [77]; Wakeling v R [2016] NSWCCA 33 at [42]; R v AS [2004] QCA 220 at [15].

54    This consideration, however, must be approached with some considerable caution. As has already been noted, it is abundantly clear that the absence of consent is not an element of the offence under s 113 of the Code and like offences. That is because the law, in effect, deems a child who is under 16 years of age to be unable to give knowing and meaningful consent to sexual intercourse. It is accordingly strictly fallacious to regard the fact that the sexual intercourse was consensual as being a relevant or significant consideration. In R v Nelson, Basten JA said the following, in that regard (at [23]):

While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him “was consensual”. No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as “consensual”; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.

(Footnotes omitted.)

55    It must also be recalled, in this context, that the authorities make it abundantly clear that the purpose of laws such as s 113 of the Code is to protect persons under the age of 16 from themselves, in relation to sexual intercourse, as well as to protect them from exploitation from older people.

56    As for the presence of a romantic or “boyfriend/girlfriend relationship”, In R v Nelson Basten JA said (at [27]):

Thirdly, the sentencing judge accepted that the relationship (apparently in each case) “was a romantic one between the offender and each of the victims and classified as a boyfriend/girlfriend relationship.” Such a characterisation is apt to be highly misleading. It is necessary to explore the factors inherent in the relationship, including those set out above. A “boyfriend/girlfriend relationship” may or may not involve a sexual relationship. Further, it may be highly abusive. For the characterisation to be meaningful, these elements should be explored. The fact that the sexual aspect of the relationship was unlawful was a critical factor, not to be ignored. To leave that factor out of account could be seen to reflect the now properly abandoned attitude that personal violence was excusable if it took place within a marriage or similar relationship. It is at least plausible that conduct which takes place in the course of an ongoing “relationship” is more damaging in the long run than at least some forms of isolated sexual activity.

(Footnotes omitted.)

57    General deterrence is a matter of considerable importance in sentencing for offences such as the offence under s 113 of the Code: R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60 at [20]; R v Skinner (1993) 72 A Crim R 151 at 154. That is in part because of the protective nature of the offence.

58    As is the case with most other offences, if there is evidence that the offence was committed while the offender was suffering some sort of mental or psychiatric condition or impairment, that condition may be relevant to sentencing in a number of ways. It may, amongst other things, reduce the moral culpability of the offending conduct, have a bearing on the kind of sentence that is imposed, and moderate considerations of general and specific deterrence: R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248 at [46]-[57]; R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367 at [24]; R v Goodger [2009] QCA 377 at [21].

59    As has already been noted, the circumstances in which offences under s 113 of the Code may be committed make it impossible to conclude that there is any established range of appropriate sentences, let alone a tariff. It would, however, appear from a detailed review of the authorities that, ordinarily, an offence or offences against provisions in similar terms to s 113 will attract a sentence of imprisonment: Nanya at [45]; GNR v The State of Western Australia [2015] WASCA 5 at [59]. That said, depending on the particular facts and circumstances of the case, a suspended sentence may be within the range of appropriate or available sentences: R v Clifford at [23].

60    It should be emphasised, in relation to suspended sentences, that a sentence of imprisonment can no doubt be a significant and effective punishment, even where the execution of that sentence is suspended: R v JCE (2000) 120 A Crim R 18 at [15], [24]-[25]. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered more severe than, for example, a community service order, even though it may seem on its face to be less punitive: R v Zamagias [2002] NSWCCA 17 at [31] (Howie J, with whom Hodgson JA and Levine J agreed). It is equally clear that a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender: R v Zamagias at [32].

EVIDENCE AND OTHER MATERIAL RELEVANT TO SENTENCE

61    Both the Crown and the offender tendered evidence relevant to the imposition of an appropriate sentence.

Material tendered by the Crown

62    In addition to the Statement of Facts, the Crown tendered the following material.

63    First, a victim impact statement signed by Ms A. It is unnecessary to rehearse the content of that statement. It is sufficient, for present purposes, to note that there could be no doubt that the offences have had a profound and significant impact on Ms A’s life and emotional and psychological well-being. She is concerned at having lost the trust of her family, says that she hates herself, that her mental health is at “breaking point” and that she now has to see a counsellor.

64    Perhaps most disturbingly, Ms A appears to be feeling a serious sense of shame and guilt arising from the offences and the repercussions of them. She appears to blame herself. Even more unfortunately, Ms A’s sense of guilt and shame appears to have been exacerbated and amplified by what appears to be the ill-informed, ignorant and rather small-minded attitude of some, hopefully small, sectors of the Norfolk Island community. Ms A says that she is now bullied at school because she is thought of as a “slut and a whore”. She also feels humiliated and uncomfortable on Norfolk Island, to the point where she says that she cannot wait to leave. She is concerned that if the offender is imprisoned, she will be hated even more and will be “seen as that 14 year old girl who sent someone to jail”.

65    Feelings of guilt or shame on the part of victims such as Ms A are an insidious and yet unfortunately not uncommon product of sexual offences. It is also not uncommon that some ignorant and ill-informed members of society tend to blame and vilify the victim of a sexual offence, rather than the offender, in particular where the victim is a woman. In fact, it is abundantly clear the only wrongdoer here, the only person to blame for the predicament that the offender finds himself in, is the offender himself. Ms A has nothing to feel guilty or ashamed about. She has done nothing wrong. It was plainly the correct thing to do to ultimately report the offender’s conduct to the police.

66    One hopes that eventually Ms A will come to recognise this. Perhaps more importantly, one hopes that those elements of Norfolk Island society who appear to have vilified and blamed Ms A will eventually recognise that offences such as those committed by the offender should not be tolerated in any civilised and progressive society. Hopefully, Ms A will then be shown the care and compassion that she deserves.

67    It should be noted, in this context, that the offender’s parents were moved, upon reading Ms A’s victim impact statement, to write a letter to the Court. That letter was tendered by consent. The letter reveals that the offender’s parents, at least, recognise that Ms A needs and deserves the support and compassion of the Norfolk Island community. They say, amongst other things, that they hope that Ms A can “move forward with [her] life, [and] hold [her] head high”. One hopes that other members of the Norfolk Island community eventually follow their example and show Ms A the compassion she so clearly deserves.

68    A further point should be noted about the impact that these offences have no doubt had on the victim, Ms A. Even in the absence of the victim impact statement, I would have been prepared to proceed on the basis that there was a substantial risk of emotional harm to Ms A as a result of the offences. In R v King [2009] NSWCCA 117, the New South Wales Court of Criminal Appeal said (at [41]):

No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. The early complaint makes it obvious that the child knew that the conduct was wrong and that she found it distressing. It is significant that the act was committed by a stranger. It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children: see R v MJR (2002) 54 NSWLR 368 at [57].

69    While the offences here were not committed by a stranger, those observations are undoubtedly apposite to this case.

70    Second, the Crown tendered a Pre-Sentence Report prepared by the Officer in Charge of the Norfolk Island Police Force. That report provided some information concerning the offender’s social, educational, employment, medical and psychiatric history. That information will be referred to later in the context of the offender’s subjective circumstances. The report also contains some information relevant to some possible sentence options, including, perhaps most importantly, home detention. The report states as follows in relation to home detention:

Home Detention Orders have not previously been issued on Norfolk Island and there is no existing provision of electronic monitoring devices to ensure the compliance of the accused with the order (and there is a likelihood that such services would not work on Norfolk Island due to the lack of mobile data services on island). Due to this, the order would be required to be enforced by supervision at the home by family and other approved persons and further supervision and enforcement of the order by the Norfolk Island Police Force in lieu of there being a community corrections office on island.

71    The New South Wales Department of Justice home detention order conditions for home detention orders made in New South Wales are annexed to the report. Finally, the report provides some information concerning available courses, programs and treatments that may be of assistance to the offender, particularly in relation to the offender’s rehabilitation.

72    Third, the Crown tendered a report prepared by the Officer in Charge pursuant to s 44 of the Sentencing Act. That report certified, amongst other things, that suitable arrangements were available for the offender to reside at the residence of his father and step-mother, that those premises were suitable for the purposes of a home detention order, that the making of a home detention order was not likely to inconvenience or put at risk other persons living at the premises, or the community generally, and that the offender consented to the making of a home detention order, should that option be considered by the Court to be appropriate in all the circumstances.

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.

FACTORS AND CONSIDERATIONS RELEVANT TO THE APPROPRIATE SENTENCE IN THIS MATTER

90    It is perhaps convenient to group or divide the factors and considerations relevant to determining the appropriate sentence to impose in this matter into those factors relevant to the objective seriousness of the offending conduct, and those that are relevant to the offender’s subjective circumstances.

The objective seriousness of the offending

91    There could be no question whatsoever that the offences and the offending conduct were very serious.

92    As has already been observed, the maximum penalties that the legislature has set for offences against s 113 of the Code reflect, not only the seriousness with which the legislature regards offences of this nature, but also reflect “community abhorrence of and concern about adult sexual abuse of children”: R v BJW at [20].

93    The offences here were committed against a young girl, aged only 13 at the time of the offences. While the offender was only 19 years of age at the time of the offence, that is, nonetheless, still a significant age difference. The offender had already had, it appears, significant sexual experience. The victim, Ms A, had not had sexual intercourse before. There is no doubt whatsoever that the offender was aware that Ms A was only 13 years of age. He went ahead nonetheless.

94    It is also clear that the offences were planned and instigated by the offender. While there is a faint suggestion that the offender may not have known that what he was doing was against the law, at least in the case of the first offence, that certainly could not be said to be the case in relation to the latter offences. By that time, the offender had been charged and bailed in respect of the first offence. He knew that the conduct that he was engaging in was unlawful and serious. He also must have known that by engaging in that conduct he was breaching the conditions of his bail. He went ahead nonetheless. The offender’s conduct was planned, deliberate and repeated. He kept it secret, no doubt because he knew what he was doing was wrong.

95    The fact that the last four offences were committed while the offender was on bail is plainly a seriously aggravating circumstance.

96    Other aggravating circumstances include that the offender supplied Ms A with alcohol shortly before the first offence. It should be noted, in that regard, that the offender has been separately charged with, and will be separately dealt with in respect of, charges relating to the supply of alcohol to a minor. The fact that the offender supplied Ms A with alcohol on the first occasion is taken into account in considering the seriousness of the first offence. The offender also failed to use a condom on two occasions, thereby exposing Ms A to the risk of pregnancy.

97    There is no question that the sentence imposed must reflect the need for general deterrence. Equally, the fact that the last four offences occurred while the offender was on bail underscores the need for a sentence that will provide specific deterrence. So too does the fact that the offender has shown little insight in relation to his offending behaviour.

98    There are, however, some circumstances that mitigate or reduce the seriousness of the offending conduct in some respects.

99    First, while the age disparity between the offender and Ms A is significant, regard must be given to the evidence that suggests that for whatever reason, the offender was intellectually and emotionally immature. That includes Dr Lemerle’s opinion that the offender’s “cognitive, social-emotional and moral development [were] not compatible with his chronological age” and were, rather, “evidently consistent with that of a 12-14-year old”. It may be accepted that, in those circumstances, the offender may not have realised the gravity and moral culpability of his wrongdoing. From a purely intellectual and emotional perspective, there may not have been much of an age disparity between the offender and his victim.

100    Second, the facts and evidence suggest that Ms A was a willing participant in the sexual activity and, at least to a certain extent, knew what she was doing. That is perhaps reflected in the fact that she had an “app” on her mobile telephone that allowed her to record details of aspects of her health and sex life during her menstrual cycle. She plainly knew the difference between protected and unprotected sex; she recorded as much on her “app”. For the reasons already given earlier, this should not be taken to amount in any respect to a finding that the offending conduct was consensual. As a matter of law, it was not. It is nonetheless relevant in assessing the seriousness of the offending behaviour.

101    So too is the fact that there was some degree of romantic attraction or at least affection between the offender and Ms A. More significant, perhaps, is the fact that the offences were not the product or result of any violence, threats, force, pressure, predation, or overt manipulation or exploitation by the offender. The offender was not in any position of trust or influence over Ms A. They were, in a sense, in a “boyfriend/girlfriend relationship”. This again should not be confused with consent or consensual activity. Nevertheless, the particular circumstances in which the offences occurred are undoubtedly relevant.

102    I do not consider it to be a worthwhile exercise to make glib statements about where these offences sit on some spectrum of seriousness in respect of offences against s 113 of the Code. All offences against s 113 are serious. The spectrum of offences that might be committed against s 113 is very large. It suffices to say that the factors just referred to undoubtedly reduce the seriousness of the offences committed by the offender.

The offender’s subjective circumstances

103    The offender is a young man with a previously unblemished character. While he plainly now has a caring and supportive family, he has undoubtedly also had a difficult and challenging childhood. It is unnecessary to repeat the adverse events that appear to have affected and shaped his upbringing and development. He has also been brought up in a small and very isolated community. While that, of course, may have its advantages, particularly where the community is located on a somewhat idyllic island like Norfolk Island, it also no doubt can produce challenges. It might also result in a certain degree of innocence and naivety. That appears to be the case with the offender.

104    The unchallenged evidence is that the offender is an intellectually and emotionally naïve young man. As has already been noted in some detail, the offender’s state of development is that of a 12 to 14-year old. The offender’s immaturity and inability to cope without the support of his family is confirmed and corroborated in the various character references and testimonials. This is not only a matter that bears on the seriousness of the offending conduct. It also bears on the consideration of the appropriate sentence. There could be little doubt that the offender would have considerable difficulty coping with a custodial sentence in a New South Wales adult correctional facility situated more than a thousand kilometres from his family and friends. He would, by reason of his youth, naivety and immaturity, almost unquestionably suffer more than most from incarceration.

105    The offender pleaded guilty to the five offences at effectively the earliest opportunity. In doing so, he not only saved the community the expense and inconvenience of a jury trial, but more significantly avoided the situation where Ms A would have been required to give evidence. That would undoubtedly have been a difficult and traumatic experience for her. The offender is to be given credit for pleading guilty at an early stage and is to receive a substantial discount from the sentences that would otherwise have been appropriate.

106    The offender’s early pleas of guilty are also reflective of a degree of contrition and remorse. That said, the offender did not give evidence at the sentence hearing. Nor do the reports of Dr Lemerle and indeed the character references and testimonials really manifest remorse and contrition on the part of the offender. Indeed, as has already been observed, Dr Lemerle’s first report indicates that the offender had, at least at the stage when that report was prepared, a lack of insight into the nature and seriousness of his offending conduct. That may well be indicative of the offender’s immaturity. His insight also appears to have improved to an extent as a result of his consultations with Dr Lemerle.

107    While some of the other material, including the character references, indicates that the offender regrets the hurt and difficulties that his offending has caused his family, and regrets the situation he finds himself in, there is very little to suggest that he fully appreciates, and is genuinely sorry for, the hurt that he has caused the victim, Ms A. It might reasonably be expected that this will change over time, particularly if the offender is able, or indeed required, to undergo further treatment by Dr Lemerle and an independent and appropriately qualified psychiatrist.

108    In the absence of evidence from the offender himself, it is difficult to assess whether he is genuinely contrite and remorseful. I am nonetheless satisfied from all of the material that the offender’s prospects for rehabilitation are excellent and that the risk of him reoffending is low. I accept the submission made on the offender’s behalf that the seven days he spent in custody before being granted bail was a salutary experience for him. No doubt the offender has also had sufficient time to reflect on his actions during the four months that he has had to reside off Norfolk Island and under the constant supervision of his parents, without any access to the telephone or social media. There is no suggestion that he did not fully comply with the onerous bail conditions that he was subject to while awaiting trial.

109    I also accept that he appears to have benefited from the ongoing treatment by Dr Lemerle. He will plainly benefit from further treatment. Perhaps more importantly, I am satisfied that the offender has, on Norfolk Island at least, a strong and caring family and extended support network. He has an employer who is prepared again to supervise his apprenticeship.

SUBMISSIONS AND COMPARABLE CASES

110    The Crown submitted, taking into account all the circumstances of the case, that a term of actual imprisonment should be imposed. The Crown relied, in support of that submission, in particular on the seriousness of the offences, the fact that the last four offences were committed while the offender was on bail, the profound effect that the offences have had on the victim, Ms A, the maximum penalty that has been provided for the offence under s 113 of the Code, the need for general and specific deterrence and the need to protect the Norfolk Island community. The Crown also submitted that the so-called comparable cases supported the imposition of a sentence involving actual imprisonment.

111    The submissions advanced on the offender’s behalf were to the effect that, despite the seriousness of the offences, the imposition of a term of imprisonment fully suspended was not outside the range of appropriate penalties. The offender’s counsel relied in particular on the offender’s youth and immaturity, his psychological impairment, the fact that the offender was of prior good character and that he had pleaded guilty to the offences at the earliest opportunity. It was submitted that the suspended sentence could be made conditional on the offender undergoing appropriate treatment on Norfolk Island. The offender’s rehabilitation could, it was submitted, be best secured by further treatment and supervision on Norfolk Island, rather than by incarceration.

112    Both the Crown and the offender’s counsel referred to and relied on a number of cases involving sentences for offences similar to s 113 of the Code. Those cases were said to be in some respects comparable to this matter. It was suggested that they established a “yardstick” for the sentence that should be imposed in this matter. The reference to “yardstick” is taken from what was said by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 about the proper approach to take to sentences imposed in other cases (at [54]):

[A] history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits … “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”.

(Footnotes and emphasis omitted.)

113    The Crown relied on the following cases: Kakai v The Queen; R v Gibbons [2013] QCA 201; R v AS and R v Abbott (2007) 170 A Crim R 306; [2007] VSCA 32.

114    The following cases were referred to by the offender’s counsel: R v Wu [2007] QCA 308; R v Clifford; The Queen v Seth (unreported, District Court of Queensland, Judge Smith, 10 March 2014); and The Queen v Weazel (unreported, District Court of Queensland, Judge Smith, 12 December 2014).

115    I do not propose to discuss any of those decisions at length. I have read and considered them carefully. I have also read and considered a large number of other cases, mostly appellate decisions, concerning sentences imposed for offences similar to s 113. Those cases include, in addition to those already referred to by the Crown and the offender: R v Nelson; Wakeling v R; R v Taane [2014] NSWCCA 330; O’Brien v R [2013] NSWCCA 197; R v KB; R v NJK [2011] NSWCCA 151; R v Lee; Hogan v The Queen; R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260; R v Schwenke; R v McClymont (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992); R v Agnew (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Handley JA and Loveday J, 6 December 1990); R v T (1990) 47 A Crim R 29; R v Phillips (2009) 2 Qd R 263; [2009] QCA 57; R v Carmichael [2009] QCA 41; R v HZ [2005] QCA 468; R v T; ex parte Attorney-General (Qld) (unreported, Supreme Court of Queensland Court of Appeal, McPherson JA, Byrne and Philippides JJ, 12 April 2002); R v Knoote-Parke [2016] SASCFC 37; R v V; AJ [2012] SASCFC 10; R v Skilbeck [2010] SASCFC 35; R v Garrett [2005] SASC 58; Nanya; GNR v The State of Western Australia; Brand v State of Western Australia [2011] WASCA 269; Simon v The State of Western Australia [2009] WASCA 10.

116    Earlier in these reasons, I referred to the principles that are applicable in imposing a sentence for an offence or offences against s 113 of the Code or like offences. Those principles were extracted or derived from the authorities referred to by the Crown and the offender, together with those authorities that my own research turned up. The sentences that will be imposed will be guided by those principles. Beyond that, I doubt that the so-called comparable cases provide much assistance in imposing sentences in the unique facts and circumstances of this matter. They do not establish any “correct range” of sentences, in the sense of an upper and lower range beyond which a sentence cannot be imposed. Each of the cases referred to by the Crown and the offender are distinguishable in some way from the facts and circumstances of this case. While they have provided some guidance to me, I do not consider that the fact that a different judge imposed a particular sentence in another case which involved materially different facts and circumstances to be of any particular import.

117    I am, of course, conscious of the need for consistency in the imposition of sentences, but consistency is best secured by the application of established sentencing principles, not by following what other judges have done in other cases.

THE APPROPRIATE SENTENCE

118    Even in the absence of s 119 of the Sentencing Act, I would have been firmly of the view that a sentence of imprisonment was, and is, called for in the particular facts and circumstances of this matter. The offences committed by the offender were undoubtedly serious offences. That is the case, even having regard to the significant mitigating factors to which I have already referred. Due account must also be given to the offender’s fairly compelling subjective circumstances, in particular his prior good character, his youth, immaturity and mental condition, his early guilty pleas and his excellent prospects for rehabilitation. Even having regard to those important subjective matters, the offences are sufficiently serious to warrant, if not require, the imposition of a term of imprisonment. As I emphasised earlier, my review of the authorities from various jurisdictions concerning the imposition of offences akin to s 113 of the Code suggests that a sentence of imprisonment is ordinarily appropriate, other than in fairly exceptional or special circumstances. I do not consider that the facts and circumstances of this case are sufficiently exceptional or special as to warrant a sentence that does not involve a term of imprisonment.

119    The sentences that I consider are appropriate for each of the offences are as follows.

120    In relation to the first offence, being the offence committed on 26 August 2017, the offender should be sentenced to imprisonment for a fixed term of nine months, reduced from 12 months on account of his early plea of guilty.

121    In respect of each of the second, third, fourth and fifth offences, being the offences committed on 18 January 2018, 25 January 2018, 31 January 2018 and 8 February 2018, the offender should be sentenced to imprisonment for fixed term of 12 months for each offence, reduced from 16 months on account of his early plea of guilty.

122    It would be appropriate for the sentences of imprisonment to be served partly concurrently. While there were separate offences, plainly they were part of an overall course of conduct. The structure of the sentences should reflect that. It is also, of course, necessary to have regard to the principle of totality. I am required to ensure that the overall effective sentence is not unduly harsh as a result of multiple sentences.

123    I propose to structure the sentences in the following way.

124    The sentence of nine months imprisonment for the first offence (26 August 2017) is to commence on 7 June 2018 and expire on 7 March 2019.

125    The sentence of 12 months imprisonment for the second offence (18 January 2018) is to commence on 7 September 2018 and expire on 7 September 2019.

126    The sentence of 12 months imprisonment for the third offence (25 January 2018) is to commence on 7 December 2018 and expire on 7 December 2019.

127    The sentence of 12 months imprisonment for the fourth offence (31 January 2018) is to commence on 7 March 2019 and expire on 7 March 2020.

128    The sentence of 12 months imprisonment for the fifth offence (8 February 2018) is to commence on 7 June 2019 and expire on 7 June 2020.

129    The total effective sentence is therefore imprisonment for two years. This is not to be taken to be an aggregate sentence. It is simply an explanation of the effect of the individual sentences structured as they are.

130    The next and critical question is whether these sentences of imprisonment should be suspended in whole or in part.

Should the sentences of imprisonment be suspended?

131    The question whether a sentence of imprisonment should be suspended is the third step of a three-step process. That process has, rightly in my view, been criticised as being entirely unrealistic: Amado v R [2011] NSWCCA 197 at [5]. It is, however, a process that must be followed: see Dinsdale v The Queen (2000) 202 CLR 321; R v Zamagias. I have followed it.

132    The first stage of the process involves determining whether a sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the Sentencing Act: see s 39(3) of the Sentencing Act. I have already determined that a sentence of imprisonment, unsuspended, would be appropriate having regard to the terms of the Sentencing Act and all the facts and circumstances of the case.

133    The second stage is determining the length of the appropriate sentence, including, in the case of multiple offences, whether the sentences are to be served concurrently or cumulatively: Burnard v The Queen (2009) 193 A Crim R 23; [2009] NSWCCA 5 at [111]; R v Egan [2013] NSWCCA 196 at [83]. I have already determined the length of the appropriate terms of imprisonment and the extent to which those sentences should be served concurrently or cumulatively.

134    If the aggregate period of imprisonment imposed in respect of the sentences is less than five years (see s 39(4) of the Sentencing Act), the third stage is deciding whether or not the sentence ought to be suspended: Dinsdale at [79]; R v Foster [2001] NSWCCA 215.

135    In relation to the third stage, in R v Zamagias, Howie J said (at [28]):

[T]he appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B.

136    The imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court is “not quite certain what to do”: Dinsdale at [79] (per Kirby J). It must be recognised that that the suspension of a term of imprisonment will deprive the sentence of some of its effectiveness as a deterrent because it is significantly more lenient than any other sentence of imprisonment: R v Zamagias at [32]. Nevertheless, another purpose of punishment is the protection of the community and that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the possible expense of deterrence: “[i]n such a case a suspended sentence may be particularly effective and appropriate”: R v Zamagias at [32].

137    It is also fallacious to view a suspended sentence as amounting to no punishment at all. In Elliott v Harris (No 2) (1976) 13 SASR 516, Bray CJ said:

So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.

138    Importantly, an order suspending the whole or a part of the sentence will be on such conditions as the Court thinks fit. It is also clear from the terms of the Sentencing Act that the Court may suspend the sentence on the offender entering a home detention order. A home detention order can also be made on such terms and conditions as the Court thinks fit. What that means is that the Court can suspend a sentence, not only subject to a home detention order, but also subject to other terms and conditions that can be tailored to ensure that the objectives of protecting the community and rehabilitation can be achieved. And, the more onerous the terms and conditions, the more likely it is that the sentence will achieve the objectives of both specific and general deterrence.

139    In all the circumstances of this case, I am firmly of the view that the purposes for imposing a sentence as detailed in s 5(1) of the Sentencing Act are best achieved by an order pursuant to s 39 of the Sentencing Act suspending the whole of the sentences imposed on the offender on conditions. Those conditions will include, not only that the offender be of good behaviour for the entire two year period of the terms of imprisonment that are suspended, but also that the offender enter into a home detention order for 12 months. I should emphasise that, while the home detention order is limited to 12 months (as required by s 43(2) of the Sentencing Act), the effective or operative period of the suspension of the sentences imposed on the offender is the entire aggregate two year term of the sentences of imprisonment.

140    The terms and conditions of the home detention order will, amongst other things, require the offender to: reside at his parents’ house on Norfolk Island and not leave those premises during certain periods or times; obey all reasonable directions of a magistrate or the supervisor (the Officer in Charge of the Norfolk Island Police); be of good behaviour; adhere to an approved activity plan during approved absences from his residence; comply with directions of the supervisor in relation to association with specified persons; engage in personal development programs, counselling or treatment, as directed by the supervisor; undertake community service work when not otherwise employed as directed by the supervisor; and not obtain or use a mobile phone, or use a computer, unless permitted to do so by the supervisor. Importantly, the terms and conditions will also include that the offender not have any planned contact with Ms A.

141    In my opinion, an order suspending the sentences, coupled with a home detention order subject to onerous and restrictive terms and conditions, will: punish the offender in a way that is just in all the circumstances; provide conditions that will help the offender to be rehabilitated; discourage the offender or other persons from committing the same or a similar offence; make it clear that the community, acting through the Court, does not approve of the sort of conduct in which the offender was involved; and protect the Norfolk Island community from the offender.

142    The circumstances which, in my view, compel the conclusion that an order suspending the sentences, coupled with a home detention order on terms and conditions, is appropriate are: the offender’s prior good behaviour; the offender’s youth and immaturity; the offender’s good prospects of rehabilitation; the offender’s strong and caring family and support network on Norfolk Island; the fact that the offender is more likely to obtain appropriate and effective psychological counselling and treatment on Norfolk Island than in an adult correctional facility in New South Wales; and the fact that the offender would, because of his somewhat unique circumstances, have considerable difficulties, and would suffer more than most people, in an adult correctional facility in New South Wales. Despite the seriousness of the offences, I am firmly of the view that, in all the circumstances, an order suspending the sentence on these terms would adequately reflect the seriousness of the offences and yet also achieve the objectives of denunciation, deterrence, protection of the community and rehabilitation. While I fully recognise that the effect of suspending the sentence is to deprive the sentence of some of its “sting”, I am nonetheless of the view that a suspended sentence on these terms is by no means a “soft option”.

143    Before making final orders, I propose to hear further brief submissions from the Crown and counsel for the offender about the terms and conditions of the home detention order. If necessary, I will also hear some brief evidence from the officer in charge, Detective Sergeant Simms so as to ensure that the terms and conditions that are imposed are feasible, practical and readily enforceable. I also propose to give the Crown and the offender leave to apply to the Court to vary the terms and conditions of the home detention order should any issues arise in relation to compliance or enforcement. The full text of the terms and conditions of both the order suspending the sentence, and the home detention order, will be contained in the orders.

CONCLUSION AND DISPOSITION

144    The offender, Tiaan Linley Christian, is convicted on counts two, three, four and five in the indictment dated 5 April 2018, and count one in the indictment dated 25 May 2018.

145    The following sentence is imposed on the offender.

146    In relation to count two in the indictment dated 5 April 2018, the offender Tiaan Linley Christian is sentenced to a term of imprisonment of nine months to commence on 7 June 2018 and expire on 7 March 2019.

147    In relation to count one in the indictment dated 25 May 2018, the offender Tiaan Linley Christian is sentenced to a term of imprisonment of 12 months to commence on 7 September 2018 and expire on 7 September 2019.

148    In relation to count three in the indictment dated 5 April 2018, the offender Tiaan Linley Christian is sentenced to a term of imprisonment of 12 months to commence on 7 December 2018 and expire on 7 December 2019.

149    In relation to count four in the indictment dated 5 April 2018, the offender Tiaan Linley Christian is sentenced to a term of imprisonment of 12 months to commence on 7 March 2019 and expire on 7 March 2020.

150    In relation to count five in the indictment dated 5 April 2018, the offender Tiaan Linley Christian is sentenced to a term of imprisonment of 12 months to commence on 7 June 2019 and expire on 7 June 2020.

151    The total effective sentence is therefore imprisonment for two years.

152    I make an order pursuant to s 39 of the Sentencing Act suspending the execution of the whole of the sentence for the period of two years subject to the following conditions:

(a)    the offender, Tiaan Linley Christian be of good behaviour for the period of two years;

(b)    the offender, Tiaan Linley Christian enter into a home detention order pursuant to s 43 of the Sentencing Act for the period of 12 months subject to the terms and conditions specified in the following order.

153    I order that the home detention order entered into by the offender Tiaan Linley Christian, be subject to the following terms and conditions. The offender, Tiaan Linley Christian:

(a)    must not leave [redacted for privacy reasons] (“approved residence”) except at the times and for the periods as prescribed or as otherwise permitted by a magistrate or the Officer in Charge of the Norfolk Island Police (“the supervisor”);

(b)    must obey all reasonable directions of a magistrate or the supervisor;

(c)    must be of good behaviour and must not commit any offence;

(d)    must reside only at the approved residence or any other premises approved in writing by the supervisor;

(e)    must remain at the approved residence or any other premises approved in writing by the supervisor at all times other than:

(i)    when engaged in activities approved or arranged by the supervisor, or

(ii)    when faced with immediate danger (such as in a fire or medical emergency) and must advise the supervisor as soon as practicable after leaving the approved residence due to immediate danger;

(f)    must adhere to an approved activity plan during approved absences from the approved residence;

(g)    must submit to searches of places or things under his immediate control as directed by the supervisor;

(h)    must comply with any direction of the supervisor in relation to association with specified persons or class of persons;

(i)    must not consume alcohol;

(j)    must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained;

(k)    must submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use as directed by the supervisor;

(l)    must engage in personal development activities or in counselling or treatment programs, as directed by the supervisor;

(m)    must authorise his medical practitioner, therapist, counsellor or other professional involved in any treatment or assessment of the offender to provide information about the offender to the supervisor;

(n)    must accept any direction of the supervisor in relation to the maintenance of or obtaining of employment;

(o)    must inform any employer of the home detention order and, if so directed by the supervisor of the nature of the offence that occasioned it;

(p)    must authorise contact between any employer of the offender and the supervisor;

(q)    when not otherwise employed, the offender must undertake community service work (not exceeding 20 hours per week), as directed by the supervisor;

(r)    must not have any planned contact with the complainant, [redacted for privacy reasons], either directly or indirectly;

(s)    must not obtain or use a mobile telephone, or use any other telephone, unless permitted to do so in writing by the supervisor and must adhere to any conditions of such usage prescribed by the supervisor;

(t)    must, if approval by the supervisor is granted under condition (s), provide to the supervisor the details of the mobile telephone number or other telephone obtained or used by the offender and must provide the supervisor with access to the mobile telephone on request;

(u)    must not use any computer or electronic communication device unless permitted to do so in writing by the supervisor and must adhere to any conditions of such usage prescribed by the supervisor;

(v)    must, if approval by the supervisor is granted under condition (u), provide the supervisor with access to the computer or electronic communication device on request;

(w)    must not leave Norfolk Island without the prior written approval of the supervisor and must adhere to any conditions imposed by the supervisor relating to any approval granted;

(x)    must not possess or have in his control any firearm or other offensive weapon.

154    The offender and the Crown have leave to apply to the Court on seven days’ notice for any variation of the terms and conditions of the home detention order.

Associate:

Dated:    28 June 2018