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District Court 29 May 2009

R v Fenwick, Adam

[2009] NSWDC 195

Sexual offences
CRINMINAL LAW SENTENCING S.11 BAIL COMPLAINANT AGED 15 OFFENDER AGED 25 NON

Citation: R v Fenwick, Adam [2009] NSWDC 195
Court: District Court of New South Wales
Date: 29 May 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a 25-year-old man, pleaded guilty to seven counts of sexual intercourse with a 15-year-old complainant, contrary to section 66C of the Crimes Act 1900. The offences occurred over a six-week period between August and September 2008. At the time, the offender was on bail and residing at the home of the complainant's father.

The offender had known the complainant throughout her life. The relationship developed gradually over several months, involving mutual expressions of affection before any sexual contact occurred. The complainant had, on the agreed facts, actively participated in each encounter, though consent is not a defence to this class of offence.

All seven offences took place in various locations, including a tent in the backyard of the residence to which the offender was bailed, a relative's unoccupied unit, and a hotel room. The offender was aware of the complainant's age throughout.

  • What is the appropriate assessment of the objective seriousness of the offences, having regard to the particular circumstances of this case?
  • What is the protective purpose of section 66C of the Crimes Act 1900, and how does it bear on sentencing?
  • Whether the offender was an appropriate candidate for a conditional section 11 order (a non-custodial sentencing option under the Crimes (Sentencing Procedure) Act 1999) rather than a term of imprisonment.
  • What conditions should attach to any section 11 bail order, given the offender's drug and alcohol history?

Decision

The court conducted a detailed examination of the objective criminality of the offences. It placed the conduct at the lower end of the spectrum for this type of offending, noting that the relationship appeared to be a genuine, mutual emotional attachment rather than predatory behaviour by the offender. The court acknowledged that the absence of a consent defence reflects Parliament's recognition that young people under 16 lack the emotional and psycho-sexual maturity to consent to sexual activity, regardless of apparent willingness.

The court traced the legislative history of age-of-consent laws, from 19th-century statutes in England and New South Wales through to contemporary international comparisons. This analysis reinforced that Parliament had deliberately set 16 as the age of consent in New South Wales to protect younger persons from the inherent power imbalance between them and mature adults.

Notwithstanding the genuine nature of the relationship, the court identified several aggravating factors. The offending occurred while the offender was on bail. His residence in the complainant's family home meant there was a breach of the trust reposed in him by her parents. Prominent drug and alcohol use also featured in the background to the offending.

Weighing all of these matters, the court determined that the level of criminality was at the low end for offences of this kind and that a non-custodial outcome under section 11 of the Crimes (Sentencing Procedure) Act 1999 was available. The court imposed a conditional bail order with strict requirements, including abstinence from alcohol and illicit drugs, random urine testing, supervision by Probation and Parole, and obligations to seek employment.

Orders Made

  • Conditional section 11 bail granted
  • The offender is to abstain from all alcohol, including on celebratory occasions, for the duration of the bail
  • The offender is to abstain from all non-prescribed drugs (other than cigarettes)
  • Random urine testing for cannabis and other illicit drugs, with failure to supply urine deemed a breach
  • Supervision by, and compliance with all reasonable directions of, Probation and Parole, with reporting to the Chatswood office by 5pm the following Monday
  • Residential requirements as set out in the original judgment
  • The offender is to attend a Commonwealth employment agency by 5pm Friday and seek a personal program manager to assist with employment
  • The offender must provide evidence of employment-seeking efforts within three months
  • The offender must notify his solicitor of any change of address within 24 hours, with the solicitor in turn notifying the Crown
  • Any breach of conditions relating to alcohol or drugs, if proved to the arresting officer's satisfaction, is sufficient basis for incarceration and return before the court
  • The court is to be notified of any breach within 48 hours

Key Takeaways

  • Objective criminality under section 66C of the Crimes Act 1900 exists on a spectrum, and a court may place offending toward the lower end where the conduct is non-predatory and arises from a genuine, mutual emotional relationship, even though consent remains irrelevant as a matter of law.

  • The protective purpose of section 66C reflects Parliament's view that persons under 16 lack the psycho-sexual maturity to consent to sexual activity, a position the District Court reinforced by reference to the 125-year legislative history of age-of-consent laws in New South Wales and comparable jurisdictions.

  • Aggravating factors in this case included the offender being on bail at the time of the offending and the breach of trust toward the complainant's parents, both of which bore on the sentencing assessment even where overall criminality was found to be at a low level.

  • A section 11 order under the Crimes (Sentencing Procedure) Act 1999 is available in appropriate cases involving this class of offence, and may be accompanied by highly detailed conditions targeting specific risk factors such as drug and alcohol use.

  • Sentencing courts assessing offences of this kind must situate the conduct within the broader protective rationale of the legislation, rather than treating the apparent consensual nature of the conduct as a mitigating factor in the strict sense, since the legislature has already foreclosed consent as a defence.

Legislation and Cases Referenced

Legislation:
- Section 66C, Crimes Act 1900 (NSW) (sexual intercourse with person aged 14 but under 16)
- Section 11, Crimes (Sentencing Procedure) Act 1999 (NSW) (non-custodial conditional orders)
- Criminal Law Amendment Act 1883 (NSW)
- Criminal Law Amendment Act 1885 (UK)

Cases cited: None identified in the provided text.