A South Coast man has been spared a criminal conviction for having sex with an underage girl after the judge found his case warranted exceptional leniency.
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The man, now 20, is one of only a handful of people state-wide to have a charge of sexual intercourse with a child between the ages of 14 and 16 dismissed without conviction.
Sentencing statistics reveal almost half of those charged with the offence in the past have been sent to jail.
However, in Wollongong District Court on Thursday, Judge Warwick Hunt outlined a series of compelling factors in the man’s case that he said allowed him to deliver such an unusual penalty.
A set of agreed facts said the man, then 19, and the girl, then 14½, were drinking wine and spirits with friends at a soccer field one afternoon in February last year when they began flirting with each other.
The flirting soon moved to kissing, and by 9 o’clock that night, the pair found themselves in a nearby toilet block, having drunk but consensual sex.
The court heard although the girl didn’t verbally or physically resist the man, she began crying afterwards, resulting in police being called to the scene.
Later that same night, the man sent a series of text messages to the girl.
In one, he said “sorry sis, but if you want to talk”, while in another he wrote “message me yeah, ahaha”.
Judge Hunt found the messages were of a compassionate nature, not sent with the intention of stopping her from speaking with police and were consistent with him being concerned about her welfare.
He said the man’s crime fell towards the bottom of the scale of objective seriousness for similar offences.
“It is accepted that given [the victim’s] age she was legally incapable of providing consent, however the evidence before me is at least during the incident, she was a willing participant,” he said.
“There’s nothing to suggest the offence was pre-planned or that that the victim was more vulnerable than any other child her age would be.
“There was nothing predatory in his behaviour. They were a bunch of teenagers, gathering consensually to celebrate a birthday and drinking alcohol.”
Judge Hunt also said he couldn’t find the man’s purchase of alcohol earlier in the night was done with any intention of getting the girl drunk so he could sleep with her.
He noted the man had complied with stringent bail conditions for several months, had “very good prospects” of rehabilitation, the support of a loving family and was unlikely to reoffend.
He placed the man on a two-year conditional release order with supervision from Community Corrections staff.
