STATE OF TASMANIA v CHAUNCY AARON BELL 13 AUGUST 2019
COMMENTS ON PASSING SENTENCE BLOW CJ
Chauncy Aaron Bell, I have to sentence you for two crimes: supplying a controlled drug to a child and having sexual intercourse with a young person under the age of 17 years. You were found guilty by a jury on the charge of supplying a drug to a child at your first trial. That jury was unable to agree upon a verdict in relation to a second charge, which was a charge of rape. At your second trial, the jury found you not guilty of rape but guilty of the crime called “sexual intercourse with a young person under the age of 17 years”.
For the purpose of sentencing you, I have to make findings of fact. In relation to aggravating facts asserted by the Crown, I can only make findings adverse to you if I am satisfied of the facts asserted beyond reasonable doubt. In relation to mitigating facts, I can make findings if I am satisfied of the facts asserted in your favour on the balance of probabilities.
The verdict of the second jury indicates that it did not accept a lot of the things that the complainant said in her police interviews and at the second trial. But the verdict also indicates that the jury did not accept everything you said either. In particular, they did not accept your contention that you held an honest and reasonable mistaken belief that the complainant was 20 years old on the night in question.
So far as the supply charge is concerned, the evidence established that on the morning of 13 October 2018, between midnight and 1am, the complainant came to the house where you were living in New Town in a taxi with a man named Tim Percy. You knew him. You had met him in prison. The house was not your house but a place where you were living at that time. It was a house where drugs were sold, and a lot of people knew that. The complainant was only 15 years old. She and Mr Percy came to that house in the taxi for the purchase of drugs. I accept what you said to the police about the transaction that took place. You spoke to Mr Percy and made arrangements for him to purchase Ice. You gave his money to a dealer who apparently lived at the house. That dealer gave the Ice to you. You gave it to Mr Percy. He injected some. Then it was the complainant’s turn. She had no experience with injecting drugs intravenously. You were concerned that if she tried to inject herself she might make a mess of it and harm herself. In a desire to be helpful, you administered the injection of crystal methylamphetamine or Ice into her arm. By doing that you committed the crime of supplying a controlled drug to a child. For the purpose of the Misuse of Drugs 2001, the complainant was a child because she was under the age of 18.
There was quite a range of evidence from different witnesses as to whether anything was said about this girl’s age at the house after she arrived, and, if so, what was said. You had not met her before. She looked young. I am not satisfied that anything was said at the house as to her age. I regard all the evidence of conversation at the house about her age as too unreliable for me to take into account. I am going to sentence you on the basis that you did not take any notice of the fact that she looked young, and that you were reckless or indifferent in relation to her age.
Also, I accept that, at the time you administered the injection, you were not doing that as part of a plan to seduce her. She was with another man. You had no reason to think that she might be interested in you rather than him. In fact, you charged her phone and then used it to make a call personally to a cab company to get a cab for the girl and Mr Percy to leave. Then, when the cab arrived, it crossed your mind to invite her to come for a walk with you, instead of leaving with Mr Percy. And that is what happened.
I am satisfied that the complainant willingly walked down the street with you, and away from the street down a path and onwards to the place where sexual intercourse took place, away from the houses of New Town in a grassy area. The complainant was, to some extent, under the influence of Ice. However the verdict of the second jury indicates that she was not so affected by that drug as to be unable to form a rational opinion in respect of the question whether she should willingly participate in sexual intercourse with you. I will be sentencing you on the basis that, although intoxicated to a degree, she was not so intoxicated for this to amount to rape, and that she willingly took part in sexual intercourse with you. I do not accept that anything was said about her age, at all. I will sentence you on the basis that you were reckless as to her age. I do accept that your age was mentioned, but I do not accept the evidence suggesting that her age was mentioned or that anything was said about her age. You did not use a condom. There was a risk that she might have become pregnant, but you did not ejaculate.
After you got what you wanted, you parted company from her. You left her in the dark to look after herself as best she could. She had no money. She had no shoes. She had no transport. Her mobile phone was flat. She retraced her steps back to the house where you had both come from. You took a less direct route, and as a result you did not meet up with her again. She went back to the house. She did not get much help there. She spoke to two other men. One of them gave her $1 and directed her to the phone box in an adjacent street. One of them swore at her and told her to leave, which she did.
By the time she got to the phone box, if not before, she was extremely hysterical. She may not have been like that when she was back at the house speaking to the men and getting $1. I have no reason to think that she was like that at the time of intercourse. But, by the time she got to the phone box, as a result of the Ice that you had injected, and the situation that she had been left in, she was in a terrible state. And we have seen that in the video footage that came from the camera that the female police officer was wearing when she attended at about 2am. The girl remained hysterical for a long time. The events of the night became, for her, a terrible and frightening experience, and it would not have been like that but for the injection of the drug. Insofar as I can attribute causes, that seems to have been an effect of the drug injection, the act of intercourse, and the situation that she found herself in after the administration of the drug and the act of intercourse.
I have received a victim impact statement from her. She was clearly a vulnerable individual. She was homeless. She had been living on the streets for years. Her victim impact statement reveals that now, ten months on, she still has serious psychological symptoms. She experiences aggression, anger, mood swings, memory problems, and a distrust of males. There as been a deterioration of her family relationships. She has become reclusive. She is scared of going out alone. She is scared of going near the place where you had sex with her, and she is experiencing nightmares and flashbacks. As cases of drug administration and underage sex go, I regard this as quite a serious one.
You were 34 on the night in question, and you turned 35 during your first trial. You have had a terrible life. Your mother died of cancer when your father was in gaol. He was released and given the responsibility of looking after a number of children. He did his best, but he did not manage. You have been in trouble from an early age. You have had a drug problem from an early age. You have been in and out of prison all your adult life. You have quite a lot of minor convictions for assault, but not for serious assaults. I do not think you have any convictions for sexual offences. You have a lot of convictions for drug offences, but not for administering a drug to a child. To your credit, in the 10 months that you have been in custody, you have made the effort, and you have got off drugs. It is up to you. You know better than I do how hard it is to stay off drugs. It would be really good if you could stay clean.
I have been asked to impose separate sentences for the separate crimes. I will do that. But I will impose overlapping sentences. I will make them partly concurrent with each other and partly cumulative because of what lawyers call the “totality principle”.
On the charge of supplying a controlled drug to a child, I convict you and sentence you to nine months’ imprisonment with effect from 13 October 2018. You will not be eligible for parole in relation to that sentence. For the crime of sexual intercourse with a young person under the age of 17 years, I convict you and sentence you to 10 months’ imprisonment with effect from 13 February 2019. You will be eligible for parole in respect of that sentence as from today; that is, you are six months into that sentence today. The Sentencing Act requires me to specify what that adds up to. The total of the head sentences is 14 months’ imprisonment. The total period for which you are not eligible for parole is 10 months, expiring today.