BAP v The King

[2024] NSWCCA 206

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

BAP v R [2024] NSWCCA 206

Hearing dates:

11 October 2024

Date of orders:

8 November 2024

Decision date:

08 November 2024

Before:

Wright J at [1];
Cavanagh J at [2];
Yehia J at [3]

Decision:

(1) The time for bringing the appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

(2)   Grant leave to appeal.

(3)   Uphold the appeal.

(4)   Quash the sentence imposed by the District Court on 25 July 2023.

(5)   Impose an aggregate term of imprisonment of 7 years and 6 months commencing on 22 February 2022 and expiring on 21 August 2029 with a non-parole period of 4 years and 6 months to expire on 21 August 2026.

(6)   The applicant is first eligible for release to parole on 21 August 2026.

Catchwords:

CRIME – Sentence Appeal – sexual touching and sexual intercourse with a child – plea of guilty at District Court “super call-over” – whether the sentencing judge should have found that the applicant facilitated the administration of justice – where s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not raised before the sentencing judge – failure by the sentencing judge to consider the principles relevant to sentencing youth – complex interplay between youth, mental illness and cognitive impairment – error established – applicant re-sentenced

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17

Crimes Act 1900 (NSW), ss 66A(1), 66DA(a), 66DB(a), 61M(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 25D, 25F, 32

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), s 2

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:

Aiga v R [2024] NSWCCA 175

Aslan v R [2014] NSWCCA 114

Baden v R [2020] NSWCCA 23

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

Buxton v R [2017] NSWCCA 169

Camilleri v R [2023] NSWCCA 106

Charara v DPP (2001) 120 A Crim R 255; [2001] NSWCA 140

DB v The King [2023] NSWCCA 323

Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81

Eldridge v R; Mackay v R [2015] NSWCCA 127

House v The King (1936) 55 CLR 499; [1936] HCA 40

JA v R [2021] NSWCCA 10

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Khudadadi v R [2021] NSWCCA 259

LS v R [2020] NSWCCA 120

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Paterson v R [2021] NSWCCA 273

R v AN [2005] NSWCCA 239

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Elliott and Blessington [2006] NSWCCA 305

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140

R v SS(a pseudonym) [2022] NSWCCA 258

R v Stephens [2024] NSWCCA 170

TM v R [2023] NSWCCA 185

WW v R [2023] NSWCCA 311

Younan v R [2023] NSWCCA 124

Category:

Principal judgment

Parties:

BAP (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Metcalfe (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Ramsland Laidler Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2022/00007644; 2022/0054127

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW) publication of the names or any matters which might tend to identify the applicant or victims is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 July 2023

Before:

Ellis DCJ

File Number(s):

2022/00007644; 2022/0054127

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, BAP, was sentenced in the District Court for a set of three child sexual assault offences (with a further three offences taken into account by way of two separate Form 1s) on 25 July 2023 by Ellis DCJ. The offences were contrary to ss 66A(1), 61M(2), 66DA(a) and 66DB(a) of the Crimes Act 1900 (NSW).

He received an aggregate sentence of 10 years commencing on 22 February 2022 and expiring on 21 February 2032, with a non-parole period of 6 years, expiring on 21 February 2028. The applicant had spent two days in custody referable to the offending and his sentence was backdated accordingly.

On 8 December 2022, the applicant pleaded guilty to the three offences at a “super call-over” conducted in the District Court. The sentencing judge afforded BAP a 10% discount for his pleas of guilty. There was no submission made at the sentencing hearing that the applicant had facilitated the course of justice in some way beyond the utilitarian value of the guilty plea, such as to warrant an additional benefit or discount.

The applicant has a range of learning and intellectual disabilities, including a chromosomal abnormality. The sentencing judge made a finding that the applicant’s mental health issues reduced his moral culpability to some extent, noting that his difficulty with emotional and behavioural regulation is underpinned by a range of neurological chromosomal and neurodevelopmental disorders that compromised his psychosexual development. The sentencing judge also found the applicant has a relatively limited understanding of sexual consent. Accordingly, the sentencing judge reduced the applicant’s moral culpability.

It was accepted that BAP was 17 years old, and therefore a “child” (as defined in the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”)), when he committed the offence constituting Count 2. The sentencing judge referred to the applicant’s age and s 6 of the CCPA as being a “relevant consideration” together with ss 3A, 5 and 21 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

The applicant sought leave to appeal against his sentence on four grounds:

(1) Ground 1: The sentencing judge failed to consider the provisions of s 22A of the CSPA and did not consider the applicant’s facilitation of the administration of justice occasioned by his guilty pleas entered in the District Court “super call-over”, either as a mitigating factor or as a separate discount on sentence.

(2)   Ground 2: The sentencing judge erred in finding that the applicant’s criminal record disentitled him to leniency in relation to the sentence imposed for Count 2.

(3)   Ground 3: The sentencing judge failed to properly take into account (a) the applicant’s age; and (b) his diminished mental capacity as it was found to have contributed to each offence.

(4)   Ground 4: The indicative sentences and the aggregate sentence are otherwise manifestly excessive.

The Court held per Yehia J (Wright and Cavanagh JJ agreeing) extending time within which to appeal, granting leave to appeal, allowing the appeal and re-sentencing the applicant:

As to ground 1, per Yehia J at [54], [56], [61] (Wright and Cavanagh JJ agreeing) rejecting ground 1:

(1)   A guilty plea is not necessarily indicative of a willingness to facilitate the course of justice; it may simply be an acceptance of the inevitable in the face of a strong Crown case. The reference to “at least 10%” does not give rise to an inference that an additional reduction in sentence was warranted, nor were any factors identified in writing or orally before the sentencing judge, in support of the contention that the applicant had facilitated the administration of justice.

Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81; Baden v R [2020] NSWCCA 23

(2)   “Super call-overs” are a highly effective way of managing the high volume of work in the District Court by reducing the matters that proceed to trial. That process requires the engagement of both the prosecution and the defence. In a particular case, the resolution of a matter in a “super call-over” may demonstrate an accused’s facilitation of the administration of justice, over and beyond the utilitarian value of the plea. Each case must be decided upon its own facts and circumstances.

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

As to ground (2), per Yehia J at [70], [71] (Wright and Cavanagh JJ agreeing) rejecting ground 2:

(3)   In the present case, given the nature of the subsequent offending, the sentencing judge was entitled to withhold leniency to the applicant. The absence of a criminal record at the time the applicant committed Count 2 was not a significant factor in the determination of the appropriate sentence and did not justify leniency where the later sexual offences indicated that the earlier offence was not an aberration.

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381; Charara v DPP (2001) 120 A Crim R 225; [2001] NSWCA 140; R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140

As to ground 3(a), per Yehia J at [88], [92], [93] (Wright and Cavanagh JJ agreeing) upholding ground 3(a):

(4) A mere reference to s 6, without more, does not engage with the principles relating to sentencing offenders who were children at the time of the commission of one or more offences. It says nothing about whether, and to what extent, youth operates to reduce moral culpability; moderate the weight to be given to denunciation, general and specific deterrence; or the emphasis placed on rehabilitation.

(5)   The statement that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, requires a nuanced approach. Although age can be an appropriate way of qualifying normative development, the developmental process involves some fluidity whereby maturation and development can be expressed at different times.

TM v R [2023] NSWCCA 185; R v Stephens [2024] NSWCCA 170; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; JA v R [2021] NSWCCA 10; R v Elliott and Blessington [2006] NSWCCA 305

(6)   Decision-making capacities, neuroanatomical and neurobiological development, as well as personality formation, do not necessarily reach a stage of “adult” development at the age of 18 or the closer an individual gets to the age of 18.

As to ground 3(b), per Yehia J at [80] (Wright and Cavanagh JJ agreeing) rejecting ground 3(b):

(7)   The sentencing judge took into account the applicant’s neurological, chromosomal and neurodevelopmental disorders that had compromised his psychosexual development, in reducing his moral culpability “to some extent” and reducing the weight afforded to general and specific deterrence.

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; DB v R [2023] NSWCCA 323; Paterson v R [2021] NSWCCA 273; Aslan v R [2014] NSWCCA 114; WW v R [2023] NSWCCA 311 at [82]; Younan v R [2023] NSWCCA 124; R v SS (a pseudonym) [2022] NSWCCA 258

As to ground (4), per Yehia J at [101] (Wright and Cavanagh JJ agreeing):

(8)   It is not necessary to consider this ground.

JUDGMENT

1. WRIGHT J: I agree with the orders proposed by Yehia J for the reasons her Honour has given.

2. CAVANAGH J: I agree with Yehia J.

3. YEHIA J: The applicant, who will be referred to by the initials “BAP”, seeks leave to appeal against the sentence imposed on him by Ellis DCJ (“the sentencing judge”) in the District Court of New South Wales at Newcastle on 25 July 2023.

4. The appeal is made out of time. The applicant lodged a Notice of Intention to Appeal on 3 August 2023. The period for filing the Notice of Appeal expired on 3 August 2024. The Notice of Appeal was filed on 8 August 2024. The applicant seeks an extension of time to file the application for leave to appeal. The affidavit of Tadijana Ilicic, affirmed 8 August 2024, was read in support of the application for an extension of time.

5. The respondent does not object to an extension of time being granted. There is a satisfactory explanation for the delay. An extension of time should therefore be granted, pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

6. On 25 July 2023, the applicant was sentenced in the District Court for three child sexual assault offences (with a further three offences taken into account on to separate Form 1s) contrary to ss 66A(1), 61M(2), 66DA(a) and 66DB(a) of the Crimes Act 1900 (NSW) (“Crimes Act”). The offences were committed between 2015 and 2022 against three of the applicant’s female cousins who will each be referred to by the initials “AW1”, “AW2”, and “TW”.

7. The applicant was committed for trial on 7 September 2022. On 8 December 2022, the applicant pleaded guilty to the offences during a “super call-over” conducted in the District Court. The indictment on which the accused was arraigned was dated 4 October 2022 and included 8 counts. The applicant pleaded guilty to Counts 2, 5 and 8. He acknowledged his guilt in relation to Counts 1, 3 and 4. At sentence, Counts 1 and 3 were taken into account on a Form 1 for Count 2; and Count 4 was taken into account on a Form 1 for Count 5. No further proceedings were taken in respect of Counts 6 and 7.

8. The applicant was therefore sentenced on Counts 2, 5 and 8; and Counts 1, 3 and 4 were taken into account on the Form 1s, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

9. The applicant received an aggregate sentence of 10 years commencing on 22 February 2022 and expiring on 21 February 2032, with a non-parole period of 6 years, expiring on 21 February 2028. At the time of sentencing, the applicant had been in custody since 24 February 2022. The applicant spent two days in custody when he was originally charged with the offences arising from the conduct in respect of the first two victims and it was therefore appropriate to backdate the sentence to 22 February 2022.

10. The following table sets out the offences for which the applicant was sentenced (including the Form 1 offences attaching to Counts 2 and 5 respectively), the maximum penalties, and the indicative sentences (following the application of a 10% discount to reflect the utilitarian value of the plea of guilty):

Charge	Maximum Penalty and Standard Non-Parole Period	Indicative Terms
First victim (“AW1”)
Count 2	Sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act Applicant aged 17, victim aged 8-9	Maximum penalty: Life imprisonment No standard non-parole period (applicant was under 18 years old)	7 years and 2 months imprisonment (starting point of 8 years imprisonment)
Count 1 on the Form 1 for Count 2	Indecent assault of person under 16 years of age contrary, to s 61M(2) of the Crimes Act [1] , Applicant aged 17, victim aged 7-8	Maximum penalty: 10 years imprisonment No standard non-parole period (applicant under 18 years old)	Counts 1 and 3 taken into account on Form 1 for Count 2
Count 3 on the Form 1 to Count 2	Intentional sexual touching child above 10 years and under 16 years contrary to s 66DB(a) of the Crimes Act Applicant aged 23, victim aged 14	Maximum penalty: 10 years No applicable standard non-parole period
Second victim (“AW2”)
Count 5	Intentional sexual touching child under 10 years contrary to s 66DA(a) of the Crimes Act Applicant aged 23, victim aged 9	Maximum penalty: 16 years imprisonment Standard non-parole period: 8 years	3 years and 2 months imprisonment with a non-parole period of 2 years
Count 4 on Form 1 to Count 5	Intentional sexual touching child under 10 years contrary to s 66DA(a) of the Crimes Act Applicant aged 21-22, victim aged 8	Maximum penalty: 16 years imprisonment Standard non-parole period: 8 years imprisonment	Count 4 taken into account on Form 1 for Count 5
Third victim (“TW”)
Count 8	Intentional sexual touching child above 10 years and under 16 years contrary to s 66DB(a) of the Crimes Act Applicant aged 23 years and 11 months; victim aged 12	Maximum penalty: 10 years imprisonment No applicable standard non-parole period	2 years and 3 months imprisonment

1. Section 61M was repealed with effect from 1 December 2018 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) (s 2). The provision continues to apply to offences committed or alleged to have been committed before 1 December 2018: Crimes Act 1900, Sch 11, Pt 35.

Grounds of Appeal

11. The applicant filed Grounds of Appeal on 8 August 2024, relying upon the following:

Ground 1: The sentencing judge failed to consider the provisions of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and did not consider the applicant’s facilitation of administration of justice occasioned by his guilty pleas entered in the District Court “super call-over”, either as a mitigating factor or as a separate discount on sentence.

Ground 2: The sentencing judge erred in finding that the applicant’s criminal record disentitled him to leniency in relation to the sentence imposed for Count 2.

Ground 3: The sentencing judge failed to place sufficient weight on the combination of (a) the applicant’s age and (b) his diminished mental capacity as it was found to have contributed to each offence; and

Ground 4: The indicative sentences and the aggregate sentence are otherwise manifestly excessive.

12. During the hearing of the appeal the applicant was granted leave to amend Ground 3. Ground 3 in its current form is:

The sentencing judge failed to properly take into account:

(a) The applicant’s age; and

(b) His diminished mental capacity as it was found to have contributed to each offence.

Remarks on Sentence

13. At the outset of the Remarks on Sentence (“ROS”) the sentencing judge noted that the applicant pleaded guilty to the offences for which he was being sentenced at a “super call-over” in December 2022. With respect to the offence of sexual intercourse with a child under 10 years of age contrary to s 66A(1) of the Crimes Act (Count 2) it was accepted that the applicant was 17 years old at the time of that offence and therefore the usual standard non-parole period did not apply. However, the offence is a “serious children’s indictable offence” as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”) and must therefore be dealt with pursuant to s 17 of the CCPA.

14. An Agreed Statement of Facts formed part of Exhibit A on sentence and was summarised briefly by the sentencing judge in his ex tempore reasons. The facts of the offending are as follows.

Count 2 (and Counts 1 and 3 on the Form 1 for Count 2)

15. AW1 is the victim of these offences. The conduct against AW1 occurred from when she was aged seven to nine years old, with the exception of Count 3 on the Form 1. That offence occurred when she was 14 years of age. AW1 was therefore a victim of the offending during a period of about six years.

16. Count 1 occurred in 2015, when AW1 was seven or eight years old. She was visiting her grandparents’ house. The applicant was 17 years old and living there at the time. AW1 was on the bed in her grandmother’s room, watching television. The applicant entered the bedroom and wrestled with her. He said he wanted to show her something. AW1 followed the applicant to his bedroom and the applicant closed the door behind them. AW1 sat on the side of the applicant’s bed, and he told her to close her eyes and put her hands out. The applicant then removed his penis from his pants and put it in AW1’s hands. AW1 opened her eyes, ran out of the room and washed her hands in the bathroom. The applicant followed behind her and stood in the doorway of the bathroom and then said “Don’t tell anyone. This stays between us. If you tell anyone I’ll get in trouble.” This conduct forms Count 1 on the Form 1 for Count 2.

17. Count 2 occurred when AW1 was eight or nine years old. The applicant was still living at his grandparents’ house and AW1 was visiting. The applicant was 17 years old at the time. The applicant called AW1 into his bedroom and told her to lie down on her back on the bed. AW1 did so, and the applicant proceeded to pull her tights and underwear down and performed cunnilingus on the inside and outside of AW1’s vagina for about 90 seconds. The applicant said to AW1 “That made me sick”. He told her to pull her pants up (which she did) and not to tell anyone. This conduct forms Count 2.

18. It was an agreed fact that Count 2 was part of the applicant’s ongoing conduct towards AW1 when she was aged seven to nine years old. In respect of that ongoing conduct, the sentencing judge remarked that the sexual touching “regularly involved the touching of breasts or [AW1]’s bottom on the outside of clothing.” The sentencing judge noted the relevance of the ongoing conduct and remarked that “the fact that there were other uncharged occasions – leaving aside the two matters on the Form 1 – is only relevant to establishing that Count 2 is not a single one-off offence. It’s not otherwise an aggravating factor.”

15. Count 3 on the Form 1, occurred at a family barbecue at AW1’s home on 15 December 2021. AW1 was 14 years old. When the applicant left the barbecue, he gave the victim a “one-armed cuddle” and placed his other hand on her right breast on the outside of her clothing and squeezed her breast. This conduct forms Count 3 on the Form 1 for Count 2.

Count 5 (and Count 4 on the Form 1 for Count 5)

20. AW2 is the victim of these offences. Count 4 occurred in 2020, when AW2 was eight years old and the applicant was 21 or 22 years old. AW2 visited her grandparents’ home and went upstairs to her grandmother’s room to collect some knitting items for her grandmother downstairs. The applicant was lying on the bed. He told AW2 to come back to the bedroom after she had given their grandmother the knitting items. AW2 returned and lay down on the bed on her side, facing away from the applicant. The applicant leaned over and rubbed her breasts, bottom, and vagina on the outside of her clothing. Their grandmother then called AW2 downstairs, at which point the applicant stopped touching AW2 and said “Before you go, don’t tell anyone. This stays between me and you”. This conduct forms Count 4 on the Form 1 for Count 5.

21. Count 5 occurred in August 2021 when AW2 was nine years old and she visited the applicant’s parents’ house. The applicant had moved out but was visiting. He was 23 years old at the time. He called AW2 into his old bedroom where he was lying on the bed on his back. He instructed her to lie down, and AW2 did so, facing away from him. The applicant leant across the bed and used both of his hands to rub AW2 on the breasts, bottom and vagina on the outside of her clothes. AW2 told him to stop and the applicant said “Oh ok.” AW2 got up to leave and the applicant said “This stays between me and you and no one else ok. If you tell anyone I will get really mad and I will do something.” This conduct forms Count 5.

22. In respect of AW2 the sentencing judge remarked that it is “accepted that there was ongoing touching, inappropriate touching when [AW2] was aged between six and nine – on regular occasions – always on the outside of her clothing”. The touching occurred either at their grandparents or the applicant’s house. The sentencing judge remarked that the acceptance of ongoing touching is relevant on the same basis articulated in respect of the offending against AW1; that is, the uncharged acts go to establishing that Count 5 was not a single one-off offence but cannot otherwise be considered an aggravating factor.

23. On 21 December 2021 AW1 and AW2 participated in a police interview. On 10 January 2022 the applicant was arrested in respect of the offences against AW1 and AW2. He spent two days in custody bail refused (10 and 11 January 2022) and was then released to bail.

Count 8

24. TW is the victim of Count 8. Count 8 occurred on 20 January 2022, while the applicant was on bail. TW was aged 12 years old at the time and the applicant was nearly 24 years old. TW unexpectedly attended the applicant’s residence on her way home. The applicant picked TW up, carried her into his bedroom and put her onto his bed. The applicant then lay on top of her, lifted her shirt and touched her breast and squeezed it. The applicant then attempted to undo and pull down TW’s pants. TW knocked his hand off and pushed him off her. TW walked out of the bedroom. The applicant said “Come back in” and TW replied “No.”

25. TW went to the lounge room and sat on the lounge to put her shoes on. The applicant came into the lounge room and undid his pants. He pulled his pants down and TW could see his underwear. The applicant pushed TW down onto the lounge and lay on top of her again. TW said “No” and pushed him off. The applicant stood up next to TW and by that stage, had removed his underwear. The applicant grabbed TW’s hand and put it on his penis. This conduct forms Count 8.

26. The sentencing judge accepted that the offending against TW was a “single isolated” incident.

27. TW made a complaint to police on 11 February 2022 and participated in an interview with police on 22 February 2022. The applicant was arrested on 24 February 2022.

Findings

28. The sentencing judge made findings with respect to the objective seriousness of each offence. Those findings are not challenged. With respect to those findings, his Honour said:

“In my view for different reasons, each of these offences falls – in terms of criminal objectivity or objective criminality – falls below the mid-range of offending, not at the lowest end of the range but certainly below the mid-range offending, as I’ve said for different reasons which were discussed between the bar table and bench during submissions.”

29. With respect to the most serious offence, Count 2, the sentencing judge made the following observation:

“…I note the relationship and I note the conduct in terms of the sexual intercourse was – in my view in this particular case without trying to categorise the various types of sexual intercourse – are likely to be less serious from the point of view of the victim, than other penetrative acts which would also constitute sexual intercourse…”

30. The sentencing judge took into account the difference in age between the applicant and each of the victims and noted the relationship between the victims and the applicant. In that regard, the sentencing judge remarked:

“Nevertheless, notwithstanding the criminality falls below the mid-range, these are still serious offences and the maximum penalty set out by Parliament clearly confirms that and reflects the community’s attitude to offence of this type, where young children are taken advantage of and sexually abused.”

31. The sentencing judge acknowledged that the applicant has some prior criminal offences. They are not of a like type and did not operate as an aggravating factor but did disentitle him to leniency.

32. At the time of the commission of Count 5 and Count 8, the applicant was subject to a Community Corrections Order (“CCO”) which was imposed for unrelated offences. Count 8 was committed while the applicant was on bail for the offences committed against AW1 and AW2 (Counts 2 and 5), in addition to being subject to the CCO.

33. The sentencing judge referred to s 6 of the CCPA and ss 3A and 5 of the CSPA. The sentencing judge also referred to s 21A of the CSPA noting the applicant’s plea of guilty and expressions of remorse and contrition.

Victim Impact Statements

34. The Court received a Victim Impact Statement from each of the victims. All three victims described the impact of the offending, including experiencing feelings of anger and frustration, stress and depression. The sentencing judge acknowledged the contents of the Victim Impact Statements and remarked that there is nothing within those statements which is inconsistent with the Court’s understanding of “the now acknowledged consequence[s] for victims of child sexual abuse.”

Subjective Considerations

35. The following materials were tendered on sentence in support of the applicant’s subjective case:

1. Psychological report prepared by Julie Dombrowski dated 9 June 2023 (Exhibit 1);

2. Report from consultant psychiatrist Dr Stuart Saker dated 26 July 2021 (Exhibit 2);

3. Letter from Hunter Genetics dated 7 September 2016 (Exhibit 3);

4. Patient health summary from The Boulevarde Family Medical Practice dated 9 March 2022 (Exhibit 4);

5. National Disability Insurance Scheme (“NDIS”) documentation (Exhibits 5 and 6);

6. Client consent form from Justice Advocacy Services dated 7 December 2022 (Exhibit 7);

7. Letter of support from NDIS Support Co-ordinator dated 9 August 2022 (Exhibit 8); and

8. Testimonials from the applicant’s mother and grandfather (Exhibits 9 and 10).

36. The sentencing judge summarised the applicant’s background, which is set out in the psychological report of Ms Dombrowski. The applicant is an Aboriginal man of Anaiwan descent. It was accepted that the applicant has a range of learning and intellectual disabilities. In that regard the sentencing judge remarked:

“… the offender’s learning and intellectual disability which he has suffered from a young age, that he has attended specialised school, he has had multiple suspensions including one, on one occasion, being expelled. All of these appear to have a causal connection to his diagnosis of attention deficit hyperactivity disorder, oppositional defiance disorder, microcephaly, intellectual disability and his chromosomal abnormality.”

and

“…the offender appears to have died at birth, was revived and cared for in ICU and [it] appears that the chromosomal abnormality has caused a number of difficulties including issues in relation to learning difficulties, risk factor of seizures, emotional dysregulation, behavioural dysregulation and sensory issues.”

37. The applicant had been medicated for attention deficit hyperactivity disorder (“ADHD”) and oppositional defiance disorder for many years. He struggled to form friendships, was hyperactive and became violent when frustrated. The sentencing judge noted that the applicant “continues to struggle with managing his impulsivity and his volatile behaviour, negative emotional states which include frustration and stress, that he has not been able to develop age-appropriate intimate and social relationships”.

38. There was no evidence that the applicant had a paedophilic interest or anti-social predisposition which drove the offending. The sentencing judge noted Ms Dombrowski’s finding that “the subject offending largely functioned from his difficulty with emotional and behavioural regulation underpinned by a range of neurological chromosomal and neurodevelopmental disorders that compromised his psychosexual development.”

39. The applicant was first introduced to alcohol when he was 13 years old. He regularly abused alcohol since that age. At the time of his arrest and incarceration he was consuming up to 24 cans of beer a day.

40. In respect of the applicant’s understanding of consent and intellectual functioning, the sentencing judge remarked that he has a “relatively limited” understanding of sexual consent, legality and moral culpability. The sentencing judge found that in respect of AW1 and AW2 the applicant “knew [the offending] was wrong and he would get into trouble, which is why he told the victims not to tell anyone but did not appreciate that it was criminal.” The sentencing judge remarked that this was a finding that was “difficult” to accept in respect of Count 8, as the applicant had been charged with the offences contrary to AW1 and AW2 by that point. His Honour nonetheless observed that the applicant was “not entirely [au fait] with the criminal law prior to being charged”.

41. The sentencing judge formed a view that the applicant’s mental health issues “provide some reduction in his moral culpability and, to some extent, reduce the relevance, but do not entirely remove the relevance, of general and specific deterrence.”

42. The sentencing judge found the applicant has various conditions which make him “extremely vulnerable” in custody. The applicant indicated that he had been assaulted in custody on three occasions. At the time of sentence, the applicant was being held in protective custody.

43. In respect of rehabilitation, the sentencing judge acknowledged that although the applicant indicated to a psychologist that he did not wish to commit offences of the same type again, “his prospects are difficult to be entirely positive about given that they are probably dependent on treatment in relation to his underlying mental health issues.” The sentencing judge’s ultimate finding was that there were “reasonable prospects” the applicant would not offend in a similar way again.

44. The sentencing judge found the applicant had demonstrated remorse and contrition. He pleaded guilty to the offences and was afforded a 10% discount accordingly.

45. The sentencing judge made a finding of special circumstances owing to the applicant’s mental health; his cognitive issues; that it is his first time in custody; his young age; his having been assaulted in custody; and the harsher custodial conditions arising from COVID-19 since February 2022. The sentencing judge concluded these provided a “significant favourable alteration” to the normal statutory ratio. The aggregate non-parole period was reduced to 60% of the head sentence.

Ground 1

46. Ground 1 is a complaint that the sentencing judge did not consider the provisions of s 22A of the CSPA “and did not consider the applicant’s facilitation of the administration of justice occasioned by his guilty pleas entered in the District Court ‘super call-over’ either as a mitigating factor or separate discount on sentence.”

47. The applicant submitted that although the sentencing judge took into account the utilitarian value of the plea of guilty and the applicant’s contrition and remorse, he failed to take into account the applicant’s facilitation of the administration of justice. The plea of guilty meant that the three victims were spared the ordeal of giving evidence and being cross-examined during a pre-recorded hearing. The plea of guilty also meant that the pre-recorded evidence hearings and the subsequent trial was vacated. The applicant submitted that in these circumstances, the facilitation of the administration of justice was considerable; a matter that the sentencing judge failed to take into account.

48. In answer to the observation that no submission was made before the sentencing judge that s 22A of the CSPA was enlivened, the applicant relied on the written submissions filed on behalf of the applicant in the District Court sentencing proceedings. At paragraph 1(e) of that document, a submission was made that “given the timing of the plea of guilty… [the applicant] is entitled to a discount as a reflection of its inherent utility in the amount of at least 10%.” During oral argument in this Court, the applicant placed some reliance on the words “at least”, arguing that the use of the words gave rise to the inference that counsel was referring to an additional reduction in sentence pursuant to
    s 22A.

49. The respondent submitted that there was no evidence that the applicant had facilitated the course of justice in some way beyond the utilitarian value of the guilty plea. The respondent submitted that the issue was not raised before the sentencing judge. It was submitted that the use of the words “at least” is insufficient to raise s 22A considerations. In truth, no submissions were made in support of the contention that the applicant should receive an added benefit for the facilitation of the administration of justice and in those circumstances, the sentencing judge cannot be said to have fallen into error.

Consideration of Ground 1

50. Section 22A of the CSPA provides:

22A Power to reduce penalties for facilitating the administration of justice

(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

51. The application of s 22A is discretionary in nature. In Camilleri v R [2023] NSWCCA 106, this Court considered a ground of appeal which asserted that the sentencing judge erred in failing to discount the applicant’s sentence for her acceptance of responsibility and willingness to facilitate the administration of justice. In that case, submissions were made pursuant to s 22A during the sentencing proceedings. The sentencing judge was said to have erred by allowing the power in s 22A to be constrained by s 25F of the CSPA, a provision in relation to which neither party had made submissions.

52. Cavanagh J (with whom Adamson JA agreed on this ground) said at [226], that s 22A does “not mandate the imposition of a lesser penalty. It merely specifies that ‘the Court may impose a lesser penalty… having regard to the degree to which [the administration of justice has been facilitated by the defence]’. It follows that the Court must have regard to the degree to which the administration of justice has been facilitated but any decision to impose a lesser penalty remains within the discretion of the Court…”.

53. In Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 (“Doyle”) at [17] and [19] Bell CJ (Bellew and Ierace JJ agreeing) referred to the distinction between the utilitarian value of a guilty plea and a willingness to facilitate the administration of justice, noting that:

“[17] The Sentencing Act now explicitly differentiates between the utilitarian benefit of an early guilty plea (in s 25D) and the power conferred by s 22A ‘to reduce penalties for facilitating the administration of justice.’

…

[19] …the utilitarian value of the applicant’s guilty plea alone entitled him to a sentencing discount of 25%, and his acceptance of responsibility and willingness to facilitate the course of justice ought to have formed part of the process of instinctive synthesis entailed in the sentencing process. Remorse was to be taken into account as a mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act, and the degree to which the administration of justice had been facilitated by the defence authorised a ‘not… unreasonably disproportionate’ reduction of the penalty in accordance with s 22A.”

54. A guilty plea may be, but is not necessarily, indicative of a willingness to facilitate the course of justice: Doyle at [12] per Bell CJ (Bellew and Ierace JJ agreeing); Baden v R [2020] NSWCCA 23 at [16] per Bell P, as his Honour then was (Walton and Johnson JJ agreeing). The plea may simply be an acceptance of the inevitable in the face of a strong Crown case.

55. To establish appealable error with respect to the application of s 22A, a House v The King error must be identified and established: House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; [1936] HCA 40. In Khudadadi v R [2021] NSWCCA 259, this Court dismissed an appeal which in part relied upon an asserted failure by the sentencing judge to consider s 22A of the CSPA. The Court considered the application of s 22A in the context of sentencing after trial, where the submission was not made at sentencing that
    s 22A was engaged but was raised for the first time on appeal. Price J (Hamill and Ierace JJ agreeing) observed at [28]:

“This Court has stated on many occasions that it is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. Arguments not advanced in the court below will only be entertained in ‘rare’ circumstances such as to correct a ‘miscarriage of justice or serious injustice’.” (Footnotes omitted.)

56. I reject the submission that s 22A had been raised before the sentencing judge by reference to the words “at least 10%”. No factors were identified in writing or orally before the sentencing judge, in support of the contention that the applicant had facilitated the administration of justice.

57. The plea of guilty meant that the victims were spared the ordeal of giving evidence and being cross-examined. That is a matter that was properly taken into account in the context of remorse and contrition. The plea of guilty also meant that the pre-recordings and the trial were vacated, thereby sparing valuable court time and resources. That was a matter properly taken into account as reflecting the utilitarian value of the plea of guilty.

58. During oral argument, Mr Metcalfe, on behalf of the applicant, alluded to the “practice of courts that run these District Court ‘super call-overs’ to refer explicitly in comments from the bench…. to s 22A being a vehicle to get a discount above and beyond what is mandated by s 25D [of the CSPA].” It is appropriate to say something, briefly, about the way in which s 22A may be called in aid where a plea of guilty is entered during a “super call-over”.

56. In R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 (“Borkowski”), Howie J (McLellan CJ at CL and Simpson J agreeing) set out in point form at [32], principles of general application relating to the amount of the discount for a plea of guilty. In that context the Court held that the amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

57. Borkowski was decided before the commencement of Division 1A of Part 3 of the CSPA, on 30 April 2018. Since the decision in Borkowski in 2009, there has developed a more regular practice in the District Court of conducting “super call-overs”. “Super call-overs” provide an opportunity whereby the parties may reassess the charges, the facts or the basis of liability, to potentially resolve issues and, in the appropriate case, proceed by way of plea of guilty.

58. “Super call-overs” are a highly effective way of managing the high volume of work in the District Court by reducing the matters that proceed to trial. That process requires the engagement of both the prosecution and the defence. In a particular case, the resolution of a matter may demonstrate an accused’s facilitation of the administration of justice, over and beyond the utilitarian value of the plea. Each case must be decided upon its own facts and circumstances.

59. In the present case, however, the issue was not raised before the sentencing judge and the factors that are said to demonstrate the applicant’s facilitation of the administration of justice, as opposed to the utilitarian value of the plea of guilty and his remorse, have not been identified.

60. I would reject Ground 1 of the appeal.

Ground 2

64. Ground 2 asserts that the sentencing judge erred in finding that the applicant’s criminal record disentitled him to leniency in relation to the sentence imposed for Count 2.

65. The applicant submitted that with respect to Count 2, the offence was committed when the applicant was a child and at a time when he had no prior matters on his criminal history. The applicant also submitted that although at the time of the subsequent offences there were “prior matters”, they were not of a “like type”, a matter which was noted by the sentencing judge.

66. The applicant accepts that in advancing this ground of appeal, his criminal record may deprive him of pleading in mitigation his “prior good character”. However, the applicant submitted that the sentencing judge erroneously considered the applicant’s criminal record in respect of Count 2 which “distracted from an essential consideration in the sentencing exercise: namely the extent to which the applicant’s moral culpability was diminished, lessened or reduced by various objective factors.”

67. The respondent submitted that it was open to the sentencing judge to find that the applicant was disentitled to leniency by virtue of his criminal history, given the nature and number of prior convictions and the long-standing nature of the subject offending conduct, which dated back many years. The respondent also submitted that the sentencing judge’s findings as to the significance of the applicant’s criminal record did not distract him from making findings as to the applicant’s reduced moral culpability based on his mental health issues.

Consideration of Ground 2

68. There is no dispute that at the time the applicant committed the offences the subject of Count 2 he did not have a criminal record. The applicant’s criminal history commenced in September 2018, when he was aged 20 years old. He was convicted of an offence of assault occasioning actual bodily harm and sentenced to a CCO.

69. In 2019, when the applicant was 21 years old, he was convicted and sentenced for an offence of driving with low range PCA. In 2020, when the applicant was 22 years old, the applicant was convicted and sentenced by way of CCOs for offences of assault, assault occasioning actual bodily harm, contravening an apprehended domestic violence order, stalk and intimidate and maliciously damage property. In 2021, at the age of 23, the applicant was convicted and sentenced to a CCO for an offence of maliciously destroy property. He was “called up” on the CCO and dealt with on the breach by way of a further CCO.

70. Count 2 related to an offence of sexual intercourse with a child under the age of 10 years, committed between January and October 2016. The applicant was 17 years old at the time of that offence. Count 1 (one of the matters taken into account on the Form 1 for Count 2), is an offence of indecent assault which was committed between June and December 2015. The applicant’s offending continued during 2019 to 2022. The offending conduct that took place subsequent to Count 2 cannot operate to aggravate the objective seriousness of that offence nor to increase the sentence for that offence by reason of the subsequent offending. However, in the present case, given the nature of the subsequent offending, the sentencing judge was entitled to withhold leniency to the applicant: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [58], [60] per the Court; Charara v DPP (2001) 120 A Crim R 225; [2001] NSWCA 140 at [38] per Giles JA (Powell JA and Ipp AJA agreeing); R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140 at [22] per Dunford J (Foster AJA and Smart AJ agreeing).

71. I am not persuaded that the sentencing judge erred in finding that the applicant’s criminal record disentitled him to leniency in relation to the sentence imposed for Count 2. The absence of a criminal record at the time of that offence was not a significant factor in the determination of the appropriate sentence and did not justify leniency where the later sexual offences indicated that the earlier offence was not an aberration.

72. I would reject Ground 2 of the appeal.

Ground 3

73. Ground 3, in its amended form, asserts that the sentencing judge failed to properly take into account: (a) the applicant’s age and (b) his diminished mental capacity as it was found to have contributed to each offence.

Ground 3(b)

74. It is convenient to deal with Ground 3(b) first. The applicant acknowledges that the sentencing judge appeared to embrace the principles to be applied when sentencing an offender who is suffering from mental health and cognitive issues in finding that the applicant’s moral culpability was somewhat reduced, and that the relevance of general and specific deterrence was reduced but not entirely removed. The complaint, at least in part, is that the sentencing judge failed to explain in his reasons the extent to which the applicant’s moral culpability was reduced and the extent to which general deterrence and rehabilitation impacted upon the sentence, by virtue of his mental health and cognitive impairment.

75. The respondent submitted that the sentencing judge referred to and made adequate findings with respect to the applicant’s mental health issues and cognitive difficulties. The respondent also submitted that the substance of the complaint in this ground is that sufficient weight was not given to the “combination” of only two factors in instinctive synthesis of all relevant factors. Questions of weight are essentially matters within the discretion of the sentencing judge and do not constitute error.

Consideration of Ground 3(b)

76. The principle regarding the “causal” role mental illness may have in offending, and its role in sentencing was considered by the full High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]:

“[54] … A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

See also DB v R [2023] NSWCCA 323 (“DB”) at [49] per Lonergan J (Simpson AJA and Dhanji J agreeing).

77. In Paterson v R [2021] NSWCCA 273 Beech-Jones CJ at CL, as his Honour then was, remarked at [29] (R A Hulme and Adams JJ agreeing) that a consideration of a wider set of factors (including mental health) can be taken into account when determining moral culpability:

“In relation to ground 1, it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the ‘objective seriousness’ of an offence and the ‘moral culpability’ of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender’s moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571 at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57]; Zreika v R [2021] NSWCCA 243 at [55]).”

78. The principles applicable to considering an applicant’s mental health in the context of sentencing were set out in Aslan v R [2014] NSWCCA 114 at [33]-[34] by Simpson J, as her Honour then was (Adams and McCallum, as her Honour then was, JJ agreeing) and recently re-affirmed in DB by Lonergan J (Simpson AJA and Dhanji J agreeing) at [49]:

“The practical application of this principle as explained by McClellan CJ at CL in De La Rosa was further contextualised by Simpson J (as her Honour then was) in Aslan at [33] to [34]:

‘[33] This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

“[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...

[Principle 4] It may reduce or eliminate the significance of specific deterrence ...

[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ... (internal citations omitted, italics added)”

[34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.’”

See also WW v R [2023] NSWCCA 311 at [82] per Wilson J (Kirk JA and Fagan J agreeing); Younan v R [2023] NSWCCA 124 at [25] per Lonergan J (Hamill and Ierace JJ agreeing); R v SS (a pseudonym) [2022] NSWCCA 258 at [92] per McNaughton J (Price and Ierace JJ agreeing).

79. I am not persuaded that the sentencing judge failed to properly take into account the applicant’s diminished mental capacity or that he failed to adequately explain the way in which he took into account the applicant’s mental health and cognitive impairment when considering the applicant’s moral culpability and the weight to be afforded to general deterrence and rehabilitation.

80. The sentencing judge, in his ex tempore remarks, referred to the material that related to the applicant’s mental health and cognitive impairment. His Honour noted the applicant’s various conditions and concluded that it was clear that he had underlying mental health issues and cognitive disabilities. The sentencing judge also acknowledged the applicant’s relatively limited understanding of the question of consent and his understanding of the illegality as distinct from the wrongfulness of his behaviour. The applicant’s struggle with managing his impulsivity, volatile behaviour, negative emotional states, frustration and stress was accepted by the sentencing judge. Furthermore, the sentencing judge took into account the applicant’s neurological, chromosomal and neurodevelopmental disorders that had compromised his psychosexual development, in reducing his moral culpability “to some extent” and reducing the weight afforded to general and specific deterrence.

81. In addition, the sentencing judge took into account that these various conditions rendered the applicant more vulnerable and his time in custody more onerous. There was evidence, which was accepted by the sentencing judge, that the applicant reported being assaulted whilst in custody on three occasions and that he was being held in protective custody, a classification that was likely to continue for the duration of his sentence of imprisonment.

82. I would reject Ground 3(b).

Ground 3(a)

83. Ground 3(a) asserts that the sentencing judge failed to properly take into account the applicant’s age. The applicant submitted that the sentencing judge did not consider the extent to which the applicant’s youth should be taken into account in an assessment of his moral culpability and the emphasis to be given to general deterrence and rehabilitation. The applicant also submitted that the sentencing judge failed to consider the extent to which the applicant’s cognitive, emotional and/or psychological immaturity contributed to his breach of the law especially in relation to Counts 1 and 2, which occurred when he was still a child.

84. The respondent submitted that the sentencing judge was cognisant of the relevant principles regarding the age of the applicant in respect of all offences and had explicitly referred to the applicant’s impulsivity and reduced moral culpability when dealing with the applicant’s mental health and cognitive impairment issues. Furthermore, the Crown relied upon the offending having continued over a number of years until the applicant was aged nearly 24, submitting that the applicant’s mental health and cognitive impairment issues, as opposed to his age, were central to the sentencing exercise. In oral submissions before this court the Crown submitted that when one looks at the ROS overall, the sentencing judge did “globally” consider the “hallmarks of youthful or impulsive indiscretion.”

Consideration of Ground 3(a)

85. The sentencing judge was aware that the applicant was a “child” within the definition of s 3 of the CCPA, when he committed the offence constituting Count 2. So much is clear from the ROS where his Honour referred to the applicant’s age at the relevant time and noted that Count 2 is a “serious children’s indictable offence” which had to be dealt with according to law pursuant to s 17 of the CCPA.

86. However, the only reference by the sentencing judge to the principles relating to sentencing an offender who was a child at the time of the offence, was a reference to s 6 of the CCPA being a “relevant consideration” together with
    ss 3A, 5 and 21 of the CSPA.

87. Section 6 of the CCPA provides:

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

88. As is readily apparent, s 6 of the CCPA provides an important but generalised statement of principles guiding courts in the exercise of their functions when dealing with children. A mere reference to s 6, without more, does not engage with the principles relating to sentencing offenders who were children at the time of the commission of one or more offences. It says nothing about whether, and to what extent, youth operates to reduce moral culpability; moderate the weight to be given to denunciation, general and specific deterrence; or the emphasis placed on rehabilitation.

89. I am mindful of the fact that these remarks were ex tempore ROS. A sentencing judge, dealing, as she or he does, with busy court lists and a high volume of sentencing work, cannot be expected to set out at length all the various relevant principles and how they might or might not operate in a given case. This Court has acknowledged on a number of occasions, the pressures the judges of the District Court are under in managing busy short matters lists and that ex tempore judgment should be considered with a degree of latitude: Buxton v R [2017] NSWCCA 169 at [53] per Bathurst CJ and Walton J; Aiga v R [2024] NSWCCA 175 per N Adams J at [67] (Ierace and Sweeney JJ agreeing); Eldridge v R; Mackay v R [2015] NSWCCA 127 at [93]-[95] and [102]-[105] per Johnson J (Hoeben CJ at CL and Hamill J agreeing).

88. However, the applicant’s age, particularly with respect to Count 2 was of particular significance in the sentencing exercise. Count 2 was committed when the applicant was 17 years old. It is the most serious offence for which he was sentenced and an offence that was committed at the commencement of a course of sexual misconduct. The interplay between the applicant’s immaturity and impulsivity resulting from his age and his reduced emotional and behavioural regulation resulting from a range of neurological, chromosomal and neurodevelopmental disorders, is a significant consideration in assessing the applicant’s moral culpability at the time he committed the sexual intercourse offence against AW1.

89. I recently summarised the principles relevant to sentencing young offenders in TM v R [2023] NSWCCA 185 at [47]-[52] (Payne and Stern JJA agreeing):

“[47] The legal principles relevant to the sentencing of young offenders are well-established and have been reiterated in several judgments of this Court. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult: see R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [25]; MS2 v The Queen [2005] NSWCCA 397; (2005) 158 A Crim R 93 at [61].

[48] In the oft cited decision of KTv R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (KT) at [22]–[26], McClellan CJ at CL (as his Honour then was), summarised the following principles:

‘[22] The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

[23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61])

[24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.”

[25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

[26] The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).’

[49] The qualification to the principles concerning young persons where they conduct themselves in an “adult like manner” should be applied with some caution. While in some cases, significant planning, or other indicia of mature decision-making, may result in a diminution of the relevant principles, the gravity of an offence does not, by itself, demonstrate “adult like” behaviour. The assessment must be one of maturity and conduct, not only the degree of violence. Here, the applicant engaged in violent conduct resulting in serious injury to the victim. However, the conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group. I agree with the sentencing judge’s remarks that the distinction between “adult like” and “non-adult like” behaviour was unhelpful in this case.”

92. The statement that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, requires a nuanced approach. Although age can be an appropriate way of qualifying normative development, the developmental process involves some fluidity whereby maturation and development can be expressed at different times.

93. Decision-making capacities, neuroanatomical and neurobiological development, as well as personality formation, do not necessarily reach a stage of “adult” development at the age of 18 or the closer an individual gets to the age of 18. Scientific research has led to a better understanding of the development of the human brain. The multifaceted nature of adolescent development, especially in the area of decision-making, maturity, impulsivity and levels of understanding, has informed, and continues to inform, the development of sentencing principles that apply to youth.

94. In R v Stephens [2024] NSWCCA 170 at [19]-[20] Hamill J noted that there is “no bright line in relation to youth in the context of sentencing” and that there is “ample authority to the effect that the development of emotional maturity and impulse control continues into early adulthood.” For example, in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, Hodgson JA said at [5] (Rothman J agreeing):

“Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v E (2006) 68 NSWLR 1; 164 A Crim R 208 at [127]. As shown by R v Hearne (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.”

95. In JA v R [2021] NSWCCA 10 at [56], Davies J (Basten JA and Johnson J agreeing) cited Kirby J’s remarks in R v Elliott and Blessington [2006] NSWCCA 305 at [127], which referred to psychological studies in relation to young offenders that demonstrate the important distinctions between adults and children:

“A jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children. The reasons for the distinction were well explained in a report by a psychologist which the New Zealand Court of Appeal reproduced and appeared to accept in Slade v The Queen [2005] NZCA 19:

‘[43] It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent.’”

96. Although the applicant was approaching the age of maturity, his age was a weighty consideration in assessing his moral culpability with respect to Count 2. It is no answer to the complaint made by the applicant, that the sentencing judge reduced the applicant’s moral culpability by virtue of his mental health and cognitive impairment issues.

97. The considerations in sentencing a child and sentencing a person with mental health or cognitive impairment issues, are different. In R v AN [2005] NSWCCA 239, Howie J said at [46] (James and Rothman JJ agreeing):

“The considerations that apply in determining the significance to be given to general deterrence when sentencing a child are not the same as those which apply when sentencing a person who suffers from a mental abnormality. In the former case the issue is one of weighing the need for general deterrence as against the need to promote the rehabilitation of the child. In the latter case the issue is whether the offender is a suitable subject for general deterrence and, if so, to what degree having regard to the severity of the mental abnormality and its connection with the offence committed. I do not believe that the weight to be given to general deterrence in dealing with a child suffering from a mental disability can be determined simply on the basis of applying only the relevant considerations applicable to a child or only the relevant considerations applicable to a person suffering from a mental disability. Yet this appears to be what his Honour has done by referring only to the passage in Bus quoted above and in the context of considering the relevant principles to be applied when sentencing a child.”

See also LS v R [2020] NSWCCA 120 at [62] per Rothman J (Simpson AJA and Bellew J agreeing, as his Honour then was).

98. Not only are the considerations in sentencing a child and sentencing a person with mental health or cognitive impairment issues different, but the interplay between these different considerations may be essential to a determination of the proportionate penalty. Here, the interplay between the applicant’s youth and his immaturity and impulsivity resulting from his mental health and cognitive issues, is crucial in assessing the extent to which his moral culpability was reduced, in relation to Count 2, and the emphasis to be placed on rehabilitation.

99. The Crown’s written submissions before the sentencing judge addressed the principles relevant to sentencing a young person, including that the sentence for Count 2 “would be lower than if the offender had committed the offence as a mature adult.” The starting point of the indicative sentence for Count 2 was one of eight years. Notwithstanding the seriousness of that offence, and without ignoring the two offences on the Form 1 for Count 2, that starting point demonstrates, in my view, that the sentencing judge did not have regard to applicant’s youth in determining the assessment of moral culpability and the extent to which general and specific deterrence should be moderated. Furthermore, although the sentencing judge, during the sentence hearing, referred to the emphasis on rehabilitation (with respect to Count 2), the ROS do not refer to the important rehabilitative purpose when sentencing young offenders.

100. I am satisfied that Ground 3(a) should be upheld.

Ground 4

101. Ground 4 is a ground of manifest excess. It is not necessary to consider this ground.

102. Having found error with respect to Ground 3(a) the Court is required to exercise the sentencing discretion afresh and does not assess whether and to what extent a degree of error influenced the outcome: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] per French CJ, Hayne, Bell and Keane JJ.

Re-Sentence

103. The applicant relies on the subjective material that was before the sentencing judge and which has been summarised above at [35]-[45]. No further material has been filed.

104. The applicant is a 26 year old Anaiwan man who is described by Ms Dombrowski, psychologist, as appearing younger than his documented age.

105. No challenge is made to the findings of the sentencing judge about the objective seriousness of the offences falling below the middle of the range but not at the lowest end of the range.

106. The applicant was subject to conditional liberty when he committed Counts 5 and 8. The CCO he was subject to at the time of those two offences was imposed as a result of domestic violence related offences for which the applicant was convicted. With respect to Count 8, the applicant was on bail for the charges against AW1 and AW2.

107. The psychological report of Ms Dombrowski sets out the applicant’s background. The report refers to medical records including records that confirm the applicant was diagnosed by Dr Murray Webber, paediatrician, with ADHD, oppositional defiance disorder, microcephaly, an intellectual disability and a chromosomal abnormality. He has taken a range of medications to manage his ADHD and has received government funding under the NDIS since 2015. In 2016 he also accessed genetic counselling for his chromosomal abnormality from Dr Ulrich Schall, consultant psychiatrist and psychologist, and staff at Hunter Genetics.

108. The applicant experienced hypoxia at birth and required intensive neonatal care for four weeks. He experienced seizures during infancy and underwent corrective surgery for a turned eye at the age of three. His congenital disorders have given rise to what is described in the report as life-long difficulties with his intellectual functioning, sensory processing and sensitivity, and emotional and behavioural regulation. These difficulties have disrupted his education, employment and social and sexual development. He has continued to struggle with managing impulsive and volatile behaviour, negative emotional states, developing age appropriate intimate social relationships and has received little in the way of specialised support to assist him with his psychosocial development.

109. The applicant has a relatively limited understanding of issues of sexual consent and legal and moral culpability. Ms Dombrowski observed that there is no information to suggest that paedophilic interests of criminal or antisocial predisposition drove the applicant’s offending. Rather, she opines that the offending was largely a function of his difficulty with emotional and behavioural regulation, underpinned by a range of neurological, chromosomal and neurodevelopmental disorders that have compromised the applicant’s psychosocial development.

110. I am satisfied that the applicant’s mental health and cognitive impairments contributed, in a material way, to the offending such as to warrant a reduction in his moral culpability and moderate the weight to be afforded to specific and general deterrence. I am also satisfied, as the sentencing judge was, that the applicant is a vulnerable person and by reason of his vulnerability will experience hardship in custody.

111. I have had regard to the countervailing purposes of sentencing, namely the protection of the community, punishment, denunciation of the applicant’s conduct and recognition of harm done to his victims.

112. I am satisfied that the applicant has expressed remorse and contrition and find that he has reasonable prospects of rehabilitation.

113. With respect to Count 2, I have taken into account that the applicant was a child when he committed the offence of sexual intercourse with AW1. I have taken into account his youth as further reducing his moral culpability in relation to that count, as well as the emphasis that should be placed on promoting his rehabilitation.

114. There will be a measure of notional accumulation reflected in the aggregate sentence. The offences involve three separate victims and the offending conduct continued over a number of years. In determining the extent of that notional accumulation, I have had regard to the principle of totality.

115. Like the sentencing judge, I have applied a 10% discount to the indicative sentences, to reflect the utilitarian value of the plea of guilty. With respect to Count 5 (taking into account the offence on the Form 1 for the Count 5) I indicate a term of imprisonment of 3 years and 2 months with a non-parole period of 2 years. With respect to Count 8, I indicate a term of imprisonment of 2 years and 3 months. With respect to Count 2 (taking into account the two offences on the Form 1 for Count 2), I indicate a term of imprisonment of 5 years.

116. I make a finding of special circumstances for the same reasons as the sentencing judge, namely, in light of the applicant’s mental health and cognitive impairment issues; that he is still a relatively young man and is serving his sentence in protective custody; the harsher conditions he experienced for a period of time since February 2022 as a result of the COVID-19 pandemic; and having regard to this being his first time in custody. These factors provide a strong justification for a significant favourable alteration to the statutory ratio between the non-parole period and parole period.

117. In my view an appropriate aggregate sentence is one of 7 years and 6 months, with a non-parole period of 4 years and 6 months.

118. Accordingly, I propose the following orders:

1. The time for bringing the appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. Grant leave to appeal.

3. Uphold the appeal.

4. Quash the sentence imposed by the District Court on 25 July 2023.

5. Impose an aggregate term of imprisonment of 7 years and 6 months commencing on 22 February 2022 and expiring on 21 August 2029 with a non-parole period of 4 years and 6 months to expire on 21 August 2026.

6. The applicant is first eligible for release to parole on 21 August 2026.

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Endnote

Decision last updated: 08 November 2024