CRIMINAL CASE NO. 60 OF 2009
COURT: Chan Lok-man, Norman, stand up, please. You have pleaded guilty to two offences of homosexual buggery with a male. The complainant in this case was aged 13 at the time of the offence in Count 1, and 13½ at the time of the offence in Count 2.
These are normally regarded as grave crimes deserving of severe punishment. The law is designed in part to protect young people from predatory males. That is, those who want to take advantage of their youth and naiveté for their own sexual gratification, and such minors have to be protected from their own inexperience and their vulnerability to the persuasion and corruption of older males.
Thus, in these cases, courts normally consider significant custodial terms as a deterrent.
However, I am satisfied that your misconduct does not fall into the usual pattern. I might say that to understand this case properly it is necessary to read the interview with the complainant and your own interview. The Summary of Facts in this case, extending, as it did, to a mere 26 lines, provided an inadequate picture against which to judge the appropriate sentence.
First, these two charges have to be set against a background of a longstanding friendship between you and the complainant. That started in about 2004. At that time, you were aged about 14; the other boy was about 9 or 10. You met through a church which you both attended and through football.
The Summary of Facts states, blindly and misleadingly, that you soon became lovers. It is not clear to me whether this is meant to convey its usual English meaning, that you soon became sexual partners. If so, that is wrong, because there was a considerable time lapse before any sexual conduct occurred.
Both the other boy and you independently identify the end of 2006 or the start of 2007 as the time when sexual acts began to occur. By then you had become close friends, meeting on a very regular basis. He was then 11½ and you were 16 years of age.
I should state clearly that although I am aware of all the relevant details of this relationship, you are to be sentenced only for the offences for which you have been indicted before this court and to which you have pleaded guilty. These are not to be treated as specimen offences.
However, the judgment of your conduct represented in the two charges cannot be made in isolation from the background, which is that, at your suggestion, the boy consented to engage in sexual acts. It is evident that this commenced with intimate conduct short of sexual intercourse by buggery, and that it involved mutual activity, and that it was consensual. It took place mainly, as I understand it, at your parents’ home whilst they were out or away.
In due course, and again at your suggestion, you started to commit acts of buggery upon the boy. This occurred about twice a week, on his account; eight to ten times per month, on your account. It is clear from the evidence that the sexual activity was not a consequence of threat or force. It is my judgment, on the whole of the material before me, that the other boy was an entirely willing partner.
The sexual activity, inappropriate though it was, was nevertheless a consequence of affection between two immature youths who were willing to experiment with their sexuality in a way which did not seem to them at the time to be harmful. The boy considered you to be good to him, that you treated him well, buying him occasional meals and trinkets. You said more or less the same thing yourself. You said that you behaved in this way because of your feelings towards the boy. You said that you could not control yourself.
Of course, you could control yourself, but you chose not to. You knew, as you said yourself, that such a choice was wrong.
I have read your interview with care. I regard it as a frank and open response to the allegations, and I judge you to have told the truth. Thus it can be seen that although this was conduct which wrongly engaged a young and vulnerable boy in a long course of sexual activity, it was not the conduct of a predatory male simply gratifying his own sexual desires. It was conduct arising out of a youthful relationship. The difference in your ages chronologically is about 5 years. That is not great in the context of this particular friendship.
I have obtained a probation officer’s report and a psychological report, the conclusions to which are broadly in line with this analysis: there was manifestly a lack of parental supervision at a critical time when your mutual sexual curiosity was uncontrolled and unguided.
The two charges relate to a time when the boy was over the age of 13. That age is of significance in cases of unlawful sexual intercourse with girls, because over the age of 13, the penalty normally imposed is significantly lower, given the reduced maximum sentence. It would, in cases involving young people in a relationship and of similar age, usually be dealt with in the magistracy rather than in the High Court, and, depending upon the circumstances, may well result in a non-custodial sentence.
I have considered with care whether I can take such an approach in your case. Here we have, on the one hand, an offence which is considered to be a grave crime, carrying a maximum term of life imprisonment, unlike unlawful sexual intercourse with a girl of 13, which carries a maximum of 10 years’ imprisonment. On the other hand, we have a course of conduct here which is, in the circumstances, similar in gravity to unlawful sexual intercourse between two underage youngsters.
You have pleaded guilty and have made admissions from the start. You have a clear record. It is evident from the reports that you regret your conduct and that you appreciate now how wrong it was to behave in this way.
I do not believe that you are a wicked young man. The letters that I have from your church and from those who know you speak otherwise. There is no evidence of lasting emotional damage to the boy, as has been indicated in the material given to me in court this morning, though it may be difficult to identify that at this stage. There is no evidence of physical harm. There is no evidence that you are a danger generally to boys of a young age. Indeed, you have been involved in normal relationships with girls and are not considered to be homosexual or paedophiliac.
You were deeply misguided in your conduct, and you need to be kept firmly on the right path, but not, I judge, by custody. Detention centre or training centre would serve no inherent purpose. Imprisonment would reinforce the general deterrent, but would do nothing for you.
I conclude that the best course for you and the community is to place you on probation for a period of 2 years with a special condition that you undergo such psychological treatment as is directed. That requires your consent, because you will have an obligation to obey the instructions of your probation officer, and if you breach the order either by failing to obey the instructions or by reoffending, you will be liable to be sentenced again for these offences. Do you understand that?
ACCUSED: Understood.
ACCUSED: Yes.
COURT: Very well. Then accordingly, I make the order concurrent on each charge.