We ask the likely unpopular & therefore important question arising from this: what would happen to him if had been merely 16 or 17, and not 18 at the time?

Jeremy So, 18, was a student at the Sydney Conservatorium of Music when he approached the complainant, then 13, who was a student at the Conservatorium High School, to provide her with tutoring in piano and chamber music.

At 14 her tutor, So, became a regular sexual partner. It took her almost a decade to report this abuse when she exited the music industry.

So was charged with 35 child sex offences, including aggravated sexual assault with a minor, persistent sexual abuse of a child, procuring a child for sexual activity, and sexual activity with an underage person under his care, occurring at So’s apartment, the complainant’s home, and inside the high school practice rooms from 2009 to 2012.

The most important issues here are threshold questions, and both are about age; that of the victim, (and her inability to consent at all) and the criminal liability of the defendant (whether he was an adult or a child when this relationship occurred).

The age of consent being 16, the victim 14, and the defendant 18 (though this may not have been clear earlier in the case), the fault-lines are clear-cut, though not by a lot.

There was no question So knew what he was doing. Documents tendered to the court included Messenger communications between the two, showing So acknowledging their relationship was illegal and urging the complainant to keep it a secret. He told her that he was ‘starting to kill [her] childhood and [her] innocence’ and warned the complainant that he could get arrested for ‘everything we’ve done so far’.

He pleaded eventually guilty to six counts of sexual intercourse with a person under 16, three of indecent assault of a person under 16 and two of committing an act of indecency with a person under 16.

The prosecution dropped 23 other charges including aggravated sexual assault of a person under 16, procuring a child for unlawful sex and aggravated sexual assault inflicting actual bodily harm.

So will be sentenced in April in the Sydney District Court. He will very likely to receive a sentence of several years of full-time custody, in an adult prison.

Often in cases of this sort the age difference is really substantial; 20 years, etc…. and therefore, it is hardly worthy of comment that at the age of 18 everyone is treated as an adult in the criminal law.

What if So was 16?

It is obviously a crime to engage in any sexual activity with a child who is below the ‘age of consent’. What if when this occurs the offender is very young himself? So’s youthfulness, being 18, is on the wrong, punishing side of the relevant age demarcation; but it does leave one to wonder: if, when he offended, would the situation be different legally had he been a few months younger?

The answer is ‘yes’, it would have been. Some might say to this: ‘So what?’ The point is that in this case a few months separate the much more lenient terms of the Children’s Court, where the maximum penalties are at worst low single digits of incarceration, in juvenile correctional facilities (and are called ‘control orders’).

Had So been two years younger than he was, and 16, instead of 18, when he had sexual relations with the victim, he would not be criminally liable for many of the charges against him, and provided their age difference was not more than two years apart, much of the sexual activity charged here could or would have been lawful, from what we know, (given an asserted at least factual consensual relationship, albeit not legally consensual).

So at 17 - would his actions be legal?  

The Children’s Court deals with most criminal offences where the defendant was a child at the time of the alleged offences and under the age of 21 years of age when charged.[1]

What if So was merely one year younger, and, say, 17? The primary and most serious charges (the aggravated sexual assault) charges would have remained in the Children’s Court, where the maximum sentence is a fraction of those in adult courts.

Delay – who does this impact upon?

The further hypothetical catch that would have applied might have meant that the long delay in bringing the complaint would take the matter out of the Children’s Court, given that So was over the age of 21 when he was charged, raising an aspect of procedural unfairness in this regard, that merely by delay by the complainant, the prosecution obtains a far harsher regime of sentence and place of imprisonment for the same offence, committed at the same age, simply by commencing proceedings later by years.

Practically speaking, it would not have mattered in So’s case as he was 18 anyway when he offended, so he would be outside the Children’s jurisdiction; however, had he been, say, 17, the delay itself, would enable the directing of him to a far harsher jurisdiction.  

Could these offences go to adult court if he had committed these offences when he was under 18?

Only serious children’s indictable offence are transferred to adult court. There are a small number of offences of this type, such as: homicide, aggravated sexual assault (interestingly, where the circumstance of aggravation is not that the victim was a minor), and offences carrying 25 years or more imprisonment – these may go up to the District Court or Supreme Court.

In this case however, if So had been under 18, the matter would remain in the Children’s Court as the offences would not be considered a serious children’s indictable offences.[2]

Had So been slightly younger, all else being the same, the maximum penalty that would be imposed on So would be a control order (a custodial penalty) for a couple of years, in a juvenile detention centre. Having done what he did at 18, and not 17, So is facing many more years, and in an adult prison.

The drastic nature of the difference in custodial penalties between an adult and a child, reminds us of the arbitrary lines of time the law applies to separate in order to protect.[3]

[1] Children (Criminal Proceedings) Act 1987 s 28.

[2] Ibid s 3(1). 

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action*.