Judge Paul Muscat made the comment while presiding over sentencing submissions for a teen charged with two counts of unlawful sexual intercourse with a person under the age of 17.
Judge Muscat said the case involved a girl who was 15 and a boy under the age of 18 when they commenced a boyfriend and girlfriend relationship.
He said there was consensual sexual activity before the boy broke up with her “and she clearly became upset at that”.
He said eventually the girl’s mother found out and the police were informed.
The boy’s lawyer told the court his instructions were the boy was under 18 when they had sex.
“If it did then she is as guilty as he is for engaging in those accounts of intercourse with him,” Judge Muscat said.
“If that was so, if he was 17 and she was 15 and this actively was brought to the attention of the police, in her own statement of what happened … she would have to be charged along with him.
“I have never seen that in the youth court and I always wondered why only the boy is charged, but there I go.”
Judge Muscat said if the girl gave evidence she would have to be cautioned that anything she said on oath could be used against her in youth court charges.
He said it was not unusual for people of that age to have sex with each other but unusual that that in a case like this, where there was obvious consent, there would be the issues he mentioned if the girl were to give evidence.
“She would have to accept responsibilities for her own actions whilst he was under the age of 18,” he said.
Judge Muscat said it seemed to be a “pretty obvious case of boyfriend/girlfriend situation which he eventually calls off and she’s upset by it and one thing leads to another”.
“Before one knows it he’s charged with these crimes and these crimes have now devastated her whole life,” he said.
“It’s the sort of thing that, with all due respect, he is really not the form of criminal courts should be dealing with.”
Judge Muscat said he did not think a custodial term was warranted for “this type of offending in these cases”.
“Quite often that’s the only sentence that a court can impose for an adult having sex with a child but the factual circumstances here are quite different and I would be thinking about it and it’s one of those cases where I think I can exercise my discretion to discharge him with a simple bond without a conviction,” he said.
Judge Muscat will hear further submissions next month.