The Court [Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA at 52] said:
On ordinary principles, it is open to an offender to seek to demonstrate, to the requisite standard of proof, that the sexual activity in question did not have (or is unlikely to have) the harmful impact on the victim which the law presumes it to have. Put another way, it is open to an offender to lead evidence to rebut the statutory presumption of harm. To the extent that such a submission relied on the consensual nature of the sexual activity, the court would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them, and the circumstances in which the sexual activity was initiated.
We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences.
Jeremy Gans noted that in deciding the question the Court didn't make any reference to the De Simoni principle. In R v De Simoni (1981) 147 CLR 383 the High Court recognised the long-standing common law principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge: Gibbs CJ at 389.
If, on a plea, the prosecution was allowed to raise circumstances of aggravation that amounted to a discrete charge, a penalty might be awarded for a more serious charge (like rape) even though the plea was to a less serious one, such as committing an indecent act or a sexual penetration offence.
This issue arose in ADA v Bruce & Anor  VSC 338. A 17-year old entered a plea of guilt to the commission of an offence under s 45 Crimes Act 1958 against a 13-year old. A charge of rape had never been laid but on the plea the prosecution referred to the penetration as being non-consensual. After submissions the matter was adjourned for further sentencing hearing, and in the interim the prosecution laid two charges of rape.
Counsel for the accused argued on the return date that the laying of new, more serious charges after the plea had been entered was an abuse of process and prohibited by the doctrine of autrefois convict. The magistrate rejected that submission and refused a stay.
On the judicial review Osborn J found that the decision in Clarkson clarified the issues and returned the matter to the Childrens' Court for sentencing. He said [at 16]:
For the assistance of the parties during the course of the hearing I summarised the evidentiary principles which appear to me to be relevant in the present case.
(a) Evidence of lack of consent by the victim is admissible upon the hearing in respect of a plea of guilty to a charge of unlawful sexual penetration as evidence of an aggravating factor in the offending. Proven absence of consent will significantly increase the gravity of the offence and the culpability of the offender: Clarkson and the [Western Australian] cases there cited.
(b) Evidence of violence is admissible upon the plea hearing in respect of a plea of guilty to a charge of unlawful sexual penetration as evidence of an aggravating factor: Clarkson and the Western Australian cases there cited.
(c) Section 38(2) of the Crimes Act 1958 provides:(2) A person commits rape if—
(a) he or she intentionally sexually penetrates another person without that person's consent—(i) while being aware that the person is not consenting or might not be consenting; or
(ii) while not giving any thought to whether the person is not consenting or might not be consenting; or
(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
(d) There are four elements of the offence under s 38(2)(a) – a person commits rape if he or she:(i) sexually penetrates another person;
(iii) without that person’s consent; and
(iv) while being aware that the other person is not consenting or might not be consenting or while not giving any thought as to whether the other person is not consenting or might not be consenting.
(e) Consent is defined by s 36 of the Crimes Act 1958 to mean free agreement. The circumstances in which a person does not freely agree include those where:(i) the person submits because of force or the fear of force to that person or someone else; and
(ii) the person submits because of the fear of harm of any type to that person or someone else.
(f) If the Crown adduces evidence of violence or lack of consent upon the plea hearing relating to a charge of sexual penetration of a child under 16, the Crown cannot invite the Court to infer from that evidence that the accused had the specific intention which would render the acts in issue rape (ie element (iv) as set out above): R v De Simoni (1981) 147 CLR 383.
(g) If the fact of aggravating circumstances constituting violence or lack of consent is not admitted by the defence, then the Crown must establish those circumstances beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270.
(h) It cannot follow simply from the submission of evidence either as to the mode of penetration or the victim’s state of mind that the Crown is inviting the sentencing Court to draw an inference beyond reasonable doubt that the prisoner had the specific intent which would demonstrate guilt of rape. (Such an inference would need to be the only inference reasonably open having regard to the evidence as a whole.)
(i) The fact that such evidence might form a basis for such a conclusion (having regard to the matters set out in s 37AA of the Crimes Act) if rape were charged, does not make it inadmissible as evidence of objective aggravating factors with respect to the offence charged.
(j) The defence submission to the Children’s Court that evidence of violence could not in this case be severed from the issue of consent:
- was not correct if it was meant to convey that the evidence of violence contained in the summary submitted to the Court necessarily founded a case that the inference of the specific intent required for rape must be drawn beyond reasonable doubt;
- would not justify exclusion of the evidence if lack of consent was a matter relied on only as an aggravating factor with respect to the offence charged and not as a basis for drawing an inference as to the prisoner’s intention at the time.
Osborn J seemed to be suggesting a compromise position between the parties, while careful not to step on the magistrate's yet-to-be-exercised sentencing discretion. The evidence of lack of consent will be admissible (consistent with the principles in Clarkson) but this won't offend the De Simoni principle because there are other elements of a rape charge (such as the accused's state of mind) that remain unsatisfied.
That distinction seems a tad artificial. The offender's state of mind at the time of the offence will inevitably become a consideration in the sentencing process, and once evidence of the victim's state of mind is given it would be hard for anyone not to infer one from the other.
I wonder whether these recent cases will lead to more victims being called by the prosecution to give evidence in sentencing hearings. That would seem contrary to recent legislative changes designed to 'shield' victims of sexual offences from the court process.