No jail for consent case

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An aspiring accountant, who had unlawful sex with a child on multiple occasions, has been spared jail.

The Pakenham man – who will not be named to protect his victim – was sentenced in the County Court on Thursday 24 September after pleading guilty to a charge of sexual penetration of a child under 16.

The court heard the 19-year-old university student had sexual intercourse with a 15-year-old school girl on three occasions in late 2019.

The pair met through a mutual friend and began talking on Facebook, after the victim instigated communication.

Their secret relationship was undone when a number of sexually explicit messages were found on the victim’s school laptop, when inspected by a wellbeing teacher.

As a result, Victoria Police and the Department of Health and Human Services (DHHS) were notified and the offender was arrested and interviewed on 5 December 2019.

According to court documents, when asked if he knew it was wrong to have sex with an underage person, the man said: “I knew it was like, frowned upon … if I knew I’d end up here I wouldn’t have done it”.

The court heard the offender didn’t know the legal age of consent was 16-years-old.

“You thought all that mattered was that the person consented,” Judge Rosemary Carlin said.

“The law casts a duty on adults to refrain from engaging in sexual activity with children, no matter how willing the child may be.”

Judge Carlin said the man’s behaviour was “not predatory” and the relationship between the pair was “not all about sex”.

She said messages also clearly showed the young girl was a “willing participant” in the sexual activity.

“You do not pressure or manipulate (victim) and there is clearly no abuse of trust or authority,” Judge Carlin said.

However, the court heard there was a “significant social, financial and emotional power imbalance” between the two.

“You drove a car, worked and attended Monash University, (victim) was in Year 9 at school, sad and vulnerable,” Judge Carlin added.

“There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children, whether or not they consent.”

The offender, who has no prior convictions, received eight glowing character references from family and friends.

“All spoke very highly of you … they overwhelmingly portrayed you as kind, considerate and decent. Your ex-partner and one other female friend indicated you were respectful of women,” Judge Carlin said.

“I accept that outside of this episode in your life, you are a person of good character with a promising future.”

The standard sentence for the charge is six years imprisonment, but Judge Carlin said a custodial sentence must only be imposed as a last resort.

She said the man’s prospects of rehabilitation were excellent and there was virtually no risk of further offending.

He was sentenced to a three years community corrections order and will be required to complete 350 hours of unpaid community work.

Judge Carlin said a breach of order could result in a jail sentence.