BP v R

[2010] NSWCCA 159

Reported Decision: 201 A Crim R 379

New South Wales

Court of Criminal Appeal

CITATION:	BP v R [2010] NSWCCA 159
HEARING DATE(S):	7 May 2010
JUDGMENT DATE:	30 July 2010
JUDGMENT OF:	Hodgson JA at 1; Johnson J at 9; Rothman J at 107
DECISION:	1. Leave to appeal against sentence granted. 2. Sentence passed at the Port Macquarie District Court on 17 April 2009 quashed. 3. In place thereof, the Applicant is sentenced to imprisonment comprising a non-parole period of three years commencing 6 March 2008 and expiring on 5 March 2011, with a balance of term of two years commencing 6 March 2011 and expiring on 5 March 2013. 4. The earliest date upon which the Applicant will be eligible for release on parole is 5 March 2011.
CATCHWORDS:	CRIMINAL LAW - sentence following trial - sexual intercourse without consent - offender aged 16 years 11 months - erroneous regard to standard non-parole period - erroneous description of sentence imposed on offender for earlier sexual assault offence - whether lesser sentence warranted under s.6(3) Criminal Appeal Act 1912 - repeat juvenile sex offender - relevance of intoxication - relevance of youth and immaturity - lesser sentence passed
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 TM v R [2008] NSWCCA 158 R v Slade [2005] 2 NZLR 526 R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 BP v R; SW v R [2006] NSWCCA 172 R v JW [2010] NSWCCA 49 MJ v R [2010] NSWCCA 52 McGrath v R [2010] NSWCCA 48 R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 R v Coleman (1990) 47 A Crim R 306 Stanford v R [2007] NSWCCA 73 R v Duncan and Perre [2004] NSWCCA 431 Roper v Simmons 543 US 551 (2005) R v Fernando (1992) 76 A Crim R 58 Maldonado v R [2009] NSWCCA 189 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 R v Bus (NSWCCA, 3 November 1995) R v Morgan [2003] NSWCCA 230; 57 NSWLR 533 R v Powell [2000] NSWCCA 108 R v Pitt [2001] NSWCCA 156 Alseedi v R [2009] NSWCCA 185 Ali v R [2010] NSWCCA 35 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 SBF v R [2009] NSWCCA 231 TG v R [2010] NSWCCA 28 R v LNT [2005] NSWCCA 307
PARTIES:	BP (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/11385
COUNSEL:	Ms B Rigg (Applicant) Ms S Dowling (Respondent)
SOLICITORS:	Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11385
LOWER COURT JUDICIAL OFFICER:	Judge Blackmore SC
LOWER COURT DATE OF DECISION:	17 April 2009

2008/11385

HODGSON JA
JOHNSON J
ROTHMAN J

30 July 2010

BP v R

Judgment

1 HODGSON JA: The circumstances giving rise to this application, the issues it raises, and the competing submissions, are set out in the judgment of Johnson J.

2 I do not wholly agree with what Johnson J has said at pars [75] – [79] of his judgment concerning the relevance of the youth of the offender to the sentencing process, and this in turn raises a question as to whether I would support a different substituted sentence. In other respects, I agree with his judgment.

3 The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

5 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 Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6 Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.

7 I do not suggest that, in all the circumstances of this case, the youth of the offender should be given such weight as to make a large difference in the ultimate outcome; but I would give it some weight, and on that basis favour a substituted sentence a little shorter than that proposed by Johnson J.

8 I propose the following orders:

(a) leave to appeal against sentence granted;

(b) the sentence passed at the Port Macquarie District Court on 17 April 2009 is quashed;

(c) in place thereof, the Applicant is sentenced to imprisonment comprising a non-parole period of three years commencing 6 March 2008 and expiring on 5 March 2011, with a balance of term of two years commencing 6 March 2011 and expiring on 5 March 2013;

(d) the earliest date upon which the Applicant will be eligible for release on parole is 5 March 2011.

9 JOHNSON J: The Applicant, BP, seeks leave to appeal with respect to sentence imposed upon him by his Honour Judge Blackmore SC at the Port Macquarie District Court on 17 April 2009 for an offence of having sexual intercourse without consent under s.61I Crimes Act 1900, an offence punishable by a maximum penalty of imprisonment for 14 years.

10 The Applicant had been tried before his Honour and a jury between 16 and 23 September 2008 upon an indictment alleging aggravated sexual intercourse without consent under s.61J(1) Crimes Act 1900 (the circumstances of aggravation being the infliction of actual bodily harm), with an alternative count of having sexual intercourse without consent. The jury acquitted the Applicant on the first count and found him guilty on the alternative count.

11 On 17 April 2009, the Applicant was sentenced to a total term of imprisonment of six years comprising a non-parole period of four years to commence on 6 March 2008 and to expire on 5 March 2012 with an additional term of two years to commence on 6 March 2012 and to expire on 5 March 2014. The sentencing Judge made an order under s.19(1) Children (Criminal Proceedings) Act 1987 directing that the Applicant serve the sentence as a juvenile offender.

Facts of Offence

12 The offence occurred at Kempsey in the early hours of the morning of 6 March 2008. At that time, the Applicant was aged 16 years, 11 months and three weeks. The victim was a young woman aged 19 years.

13 On 5 March 2008, the victim and a female friend decided to celebrate ahead of a relative’s birthday the following day and bought a number of bottles of “Passion Pop” alcohol. During the evening, the victim and her friend met with two young men, the Applicant and the cousin of the complainant’s friend. The evening was spent on the streets of Kempsey, with various other people about, and at a party proceeding at a nearby house. The Applicant and his male friend were also drinking alcohol heavily.

14 At about 4.00 am on 6 March 2008, the victim left the group to obtain a cigarette from her sister at their shared home in Kempsey, which was across the road. When the victim came outside, the Applicant approached her from behind some shrubs and put his hand over her mouth and an arm around her waist, and carried or dragged her across the road. At a location across the road, the victim was placed by the Applicant on the ground between two bushes. He removed her pants by pulling them half down one side, and then pulling her leg out of the other side. He then pulled down her underpants and had non-consensual penile/vaginal sexual intercourse with her.

15 The victim said that she did not call out whilst the Applicant was taking her across the road and whilst she was on the ground because he had a hand over her mouth. The victim stated that the sexual intercourse took about 10 minutes. She stood up and was crying. The Applicant grabbed her arm and said “Shut you’re fucking mouth, don’t tell anyone this happened”.

16 After the sexual assault, the Applicant and the victim walked back towards their friends, with the victim immediately complaining that the Applicant had raped her. The victim was very distressed and, according to her friend, appeared somewhat dishevelled.

17 The Applicant’s case at trial had been an admission of sexual activity with the victim, but a claim of consent. He denied dragging or carrying the victim across the road, forcibly removing her clothing, or placing his hand over her mouth. The Applicant gave evidence that he was “tipsy” and that he thought the victim was affected by alcohol to about the same extent.

The Applicant’s Subjective Circumstances

18 The Applicant was born in March 1991. He was just short of 17 years of age at the time of the offence and was 18 years’ old at the time of sentence.

19 The Applicant’s criminal history included the following entries:

Date	Court	Offence	Sentence
18.12.2002	Kempsey Children’s Court	1. Damage property by fire. 2. Destroy or damage property.	On each charge, bond under s.33(1)(b) Children (Criminal Proceedings) Act 1987 for 12 months with supervision
10.03.2003	Coffs Harbour Children’s Court	1. Larceny. 2. Common assault.	On each charge, s.33(1)(b) bond for 12 months with supervision
04.02.2004	Kempsey Children’s Court	1. Assault officer in execution of duty. 2. Steal from person. 3. Resist or hinder police officer in execution of duty.	On each charge, probation under s.33(1)(e) for 12 months with supervision by the Department of Juvenile Justice and to attend school when organised
12.05.2004	Kempsey Children’s Court	1. Common assault. 2. Demand property by force in company with intent to steal.	1. Control order under s.33(1)(g) for one month commencing 31 March 2004. 2. Control order under s.33(1)(g) for five months commencing 31 March 2004.
03.03.2005	Coffs Harbour District Court	1. Aggravated sexual assault. 2. Aggravated sexual assault - offender in company with other persons.	1. Bond under s.9 Crimes (Sentencing Procedure) Act 1999 for three years with supervision by Department of Juvenile Justice and condition to participate in programs, in particular to participate in sex offender counselling both within the detention centre in which he is residing and in the community upon his release. 2. Imprisonment for three years comprising a non-parole period of 12 months commencing 3 September 2004 and expiring on 2 September 2005 with a balance of term of two years commencing 3 September 2005 and expiring on 2 September 2007, sentence to be served at a Department of Juvenile Justice institution.
08.06.2005	Kempsey Children’s Court	Threaten person with intent to influence witness	Control order under s.33(1)(g) for six months commencing 13 April 2005
16.08.2008	Mildura Children’s Court	Fail to comply with reporting obligations under s.17 Child Protection (Offenders Registration) Act 2000	Probation under s.33(1)(e) for 18 months with supervision by the Department of Juvenile Justice and other conditions including a residential condition and counselling

20 The Applicant appealed to this Court with respect to the sexual assault convictions at the Coffs Harbour District on 3 March 2005. Those offences had been committed on 5 November 2003, when the Applicant was 12 years and eight months’ old. His appeal against conviction (on grounds relating to the issue of doli incapax) was dismissed on 1 June 2006: BP v R; SW v R [2006] NSWCCA 172. No appeal was brought concerning sentences passed for the 2003 sexual assault offences.

21 It appears that the Applicant was released from custody on 12 October 2005 and remained on parole until 2 September 2007. He was subject to a good-behaviour bond for one of the 2003 sexual assault offences until 2 March 2008.

22 The Applicant was arrested on 6 March 2008 and has remained in continuous custody since that date.

23 A presentence report dated 12 February 2009 prepared by an officer of the Probation and Parole Service was tendered at the sentencing hearing. The report noted the Applicant’s history with the Department of Juvenile Justice since 2002, when he was 11 years of age. The Applicant had participated in a sex-offender program conducted by the Department of Juvenile Justice following his 2005 conviction. It was noted that the Applicant continued to deny those offences.

24 The presentence report observed that the Applicant’s upbringing in the Aboriginal community at Kempsey had been marred by domestic violence and substance abuse which had, on occasions, brought both of his parents before the Courts. When in the community, the Applicant’s education had been limited due to truancy and suspensions.

25 The presentence report revealed significant training and educational progress by the Applicant whilst in custody since March 2008, and his achievements in this respect were borne out by a number of certificates tendered at the sentencing hearing.

26 The Applicant described a history of binge drinking which commenced at primary school age although, according to the presentence report, he had yet to acknowledge that this behaviour is problematic.

27 A report prepared in April 2009 by officers of the Department of Juvenile Justice (including a psychologist) was tendered at the sentencing hearing and was accepted as a background report for the purpose of s.25 Children (Criminal Proceedings) Act 1987. This report contained a detailed account of the Applicant’s background history. He is the second of five children in his family. His high school education ended with suspension half-way through Year 7, with the Applicant not returning to a community high school thereafter, receiving all further education in a custodial setting.

28 With respect to the Applicant’s psycho-sexual development, the background report recounted the Applicant’s history of numerous sexual encounters with girls within his community, starting at a young age, with casual sexual activity between the youths in his peer group being a commonplace and everyday practice. The Applicant did not suggest that he had ever been sexually abused.

29 The background report observed that there was no current scientific basis upon which a precise evaluation of the risk of reoffending can be made concerning adolescents or children. However, the report recounted the application of the Juvenile Sex Offender Assessment Protocol to the Applicant’s case. The Applicant received a high score, which would indicate that intensive intervention would be required. It was said that the Applicant denied having sexually deviant interests, cognitive distortions, sexual preoccupation and inappropriate sexual attitudes, but that it was “hard to know what is factual given [BP’s] offending behaviour and consistent denial as part of the offence”.

30 The report recounted that the Applicant had participated in sex-offender specific counselling whilst in custody and whilst on community supervision, and that he appeared to have a reasonable understanding of relevant principles and an ability to articulate them. The authors of the background report expressed the following conclusions (page 8):

“ [BP] is a young person with a history of criminal behaviour from a young age. It would appear [BP] is a young man that was raised in an environment detrimental to a healthy child development, without appropriate modelling. He has been exposed to substance abuse and domestic violence. His personal experiences of sexuality within his peer group from a young age that would most likely have distorted and confused his view regarding appropriate sexual relationships.

Despite his lack of a normative and moral foundation, it would appear that [BP] can articulate adequate insight into appropriate boundaries, the meaning of consent and the development of appropriate relationships. Therefore, it is hard to explain why this behaviour has been repeated and his amenability to treatment remains low given his articulated knowledge.

Of concern are [BP’s] AOD [alcohol and drug] issues and his lack of internal motivation to make the changes necessary to address his AOD use. In addition there are significant concerns that despite his ability to articulate appropriate responses regarding sexually offending that he has now demonstrated a pattern of the behaviour.

Despite [BP’s] history of difficult behaviours at school he has maintained good behaviour and managed his anger and stress well while in a highly structured environment at Kariong Correctional Facility.”

31 With respect to sentencing options, the authors of the background report were guarded (pages 8-9):

“It is respectfully suggested, given the serious nature of the offence, and his previous poor response to community supervision as well as his denial of this and his previous sex offence makes him assessed as unsuitable for a community based option at this time.
As a result it is felt that [BP] be made subject to a custodial sentence, however the court may wish to take into consideration the time that [BP] has already served.
Upon his release from custody it is recommended to the Court that [BP] be made subject to parole. As he is now 18 years old it is felt that supervision be undertaken by the Probation and Parole services.”

Grounds of Appeal

32 The Applicant relies upon the following grounds of appeal:

(a) Ground 1 - the sentencing Judge erred in paying regard to the standard non-parole period applicable for adult offenders as a reference point.

(b) Ground 2 - the sentencing Judge erred in his understanding, and treatment, of the Applicant’s criminal history.

33 The Applicant submits that error having been established, this Court should be satisfied that some lesser sentence should be passed for the purposes of s.6(3) Criminal Appeal Act 1912.

34 There is no ground of appeal which asserts that the sentence was manifestly excessive.

Ground 1 - Erroneous Regard to Standard Non-Parole Period

35 Submissions were made in the District Court on the question of whether the standard non-parole period of seven years applied, given the fact that the Applicant was a juvenile at the time of the commission of the offence. An argument had been advanced by the Crown in the District Court that the standard non-parole period did apply. That submission was incorrect, as the Crown has acknowledged in this Court.

36 A standard non-parole period of seven years applies for an offence under s.61I Crimes Act 1900. However, s.54D(3) Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period provisions do not apply to sentencing if the offender was under the age of 18 years at the time the offence was committed: R v JW [2010] NSWCCA 49 at [147]-[150]; MJ v R [2010] NSWCCA 52 at [25]-[26]. As the standard non-parole period had no application at all to the Applicant’s case, the appropriate course was to disregard it entirely: McGrath v R [2010] NSWCCA 48 at [37], [60].

37 In the course of his remarks on sentence, his Honour said (ROS3):

“In this case there is a standard non-parole period which applies for cases that fall within the middle range of objective seriousness for the offence. The standard non-parole period is seven years imprisonment. The offender was a juvenile at the time of the offence, however that factor is not one that can be used to determine the objective seriousness of the offence, see IE v Regina NSWCCA 70. Section 54D(3) of the Crimes (Sentencing Procedure) Act provides that the standard non-parole period does not apply if the offender is under the age of eighteen at the time of the offence.

There was some debate as to whether that section applied to the circumstances of this sentence, as it was introduced after the end of the offender's trial. It is not a matter that must be resolved, because in my view this offence is not one that falls within the middle range of objective seriousness for the offence in any case. The factors that I have regard to here are the ones referred to in s 21A of the Crimes (Sentencing Procedure) Act.”

38 Soon after, the sentencing Judge returned to this topic (ROS4-5) (emphasis added):

“ I further note that whether s 54D(3) of the Crimes (Sentencing Procedure) Act applies or not, the standard non-parole period still remains as a guide to the sort of sentence that should be applied . Of course other factors including the subjective circumstances of the offender will ultimately determine the length of the sentence.”

39 The underlined portion in the preceding paragraph suggested that the sentencing Judge was taking the standard non-parole period into account “as a guide”. Even an oblique usage such as this entails error: McGrath v R at [37]. The appropriate course was to place entirely to one side the standard non-parole period, which had no application to the sentencing of the Applicant.

40 In view of this conceded error, counsel for the Applicant and the Crown both submitted that this Court should move to consider whether some lesser sentence is warranted in law under s.6(3) Criminal Appeal Act 1912.

41 However, before moving to this issue, it is appropriate to consider the second ground which asserts that a further error was made by the sentencing Judge.

Ground 2 - Suggested Error in Understanding and Treatment of Applicant’s Criminal History

42 Ms Rigg, counsel for the Applicant, submitted that if error was found in accordance with the first ground of appeal, then the second ground was not pursued as a separate ground of appeal, but was relied upon in support of the contention that a lesser sentence was warranted in law for the purpose of s.6(3). Complaint was made concerning a number of findings in the remarks on sentence.

43 Although counsel for the Applicant invites the Court to move directly to the s.6(3) issue, it is appropriate to consider the second ground at this point.

44 There is one aspect where the Crown accepts that an erroneous statement was made. In the course of ex tempore remarks on sentence delivered later on the day of the sentencing hearing, and in the presence of counsel who appeared at the hearing, his Honour referred to the 2005 sentence for sexual assault offences as being a sentence of “imprisonment to be served in a juvenile detention centre for a non-parole period of three years with a period of 12 months on parole” (ROS5). The sentence was in fact one of imprisonment for a total term of three years including a 12-month non-parole period. It may be observed that counsel did not rise to seek to correct this error, but it was not submitted in this Court that this omission should operate against the Applicant.

45 Counsel for the Applicant submitted in this Court that this error assumed significance in this case because of an exchange which took place between his Honour and the Crown during sentencing submissions (T9-10, 17 April 2009):

“HIS HONOUR: Frankly, when you're dealing with somebody who has perpetuated the same offence, it would be - or a very similar offence, the other one being [of] slightly more seriousness in nature - it's not going to be a case where you can deal with him more leniently.

CROWN: No, I'm not suggesting that your Honour would.
HIS HONOUR: In effect, he is going to have to be dealt with in a way which makes it clear to him that he cannot continue to perpetuate this sort of activity. And, if he does, he will just have to expect to get dealt with more and more seriously.”

46 This Court does not normally find error from interchanges between the Bench and counsel since those views do not necessarily reflect the Court’s considered decision: R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475 [32]. However, the error here lies in the remarks on sentence. The preceding discussion during submissions supports the view that his Honour had in mind a more severe sentence for the present offence than that imposed in 2005 for the earlier offences. The erroneous statement that the 2005 sentence had involved a non-parole period of three years assumes significance when the sentence imposed on this occasion involved a non-parole period of four years.

47 With respect to other submissions advanced under the umbrella of the second ground of appeal, it is sufficient to observe that no error in principle has been identified in the approach of the sentencing Judge by reference to the Applicant’s prior criminal history. That history included serious offences, including prior sexual assault offences dealt with on indictment for which the Applicant had been found guilty by a jury in 2005.

Is a Less Severe Sentence Warranted in Law for the Applicant’s Offence?

48 The Applicant has demonstrated error in accordance with both grounds of appeal. It is appropriate now to turn to the question of whether some lesser sentence is warranted in law with respect to this offence.

49 Before turning to general submissions concerning this issue, it is appropriate to refer to a topic which attracted specific submissions.

Intoxication of Applicant

50 Ms Rigg submitted that the sentencing Judge had characterised the present offence appropriately as falling below the middle range of objective seriousness but certainly not at the bottom of the range (ROS4). It was submitted, however, that there were some unusual features to his Honour’s remarks concerning the objective gravity of the offence. It was noted that his Honour had referred to the fact that both the victim and the Applicant had been drinking, without an indication as to the manner in which these matters were taken into account in assessing the objective seriousness of the offence (ROS4).

51 His Honour had earlier referred to the consumption of alcohol by the Applicant in the remarks on sentence (ROS2-3):

“The offence for which the offender stands convicted is a serious one, as can be seen by the penalty attaching to its commission. The offence of sexual assault without consent or rape, as it was described by the complainant, is a truly frightening prospect for many women. Those women who have been subjected to this violence rarely forget the crime. It is an invasion of the most intimate kind and often leaves women with confused emotions as to precisely how the offence occurred.
Of course on occasions such as this one, alcohol played some part in the offence. There was evidence that the offender had been drinking for much of the day; however the law does not recognise that it is somehow less serious an offence if the offender is drunk. There is never a circumstance where sexual intercourse can occur without the consent of both parties. That is the law and when the law is breached, very significant penalties will be applied.”

52 Ms Rigg referred to a later passage in the remarks on sentence, which gave rise to some debate in this Court. At a point in the remarks on sentence, which was some distance from his Honour’s assessment of the objective seriousness of the crime, the sentencing Judge returned to the Applicant’s intoxication (ROS10):

“He has given no evidence in the sentencing proceedings, but I accept that it is possible that he genuinely believed that the complainant was consenting to sexual intercourse on the night. I accept that he could have achieved that belief because he was significantly intoxicated at the time of the offence. Apparently casual sexual behaviour amongst the teenagers and young adults in his community was relatively common. No doubt that would occur often when they were intoxicated. However, even allowing for those circumstances, it must have been very clear to him, allowing for his state of intoxication, that the complainant was loudly complaining about him raping her almost immediately after sexual intercourse took place.

The jury accepted her evidence; that is the complainant's evidence and I note it was corroborated by other witnesses' accounts. Even allowing for his state of intoxication, it would not have been unreasonable for him to review his obviously mistaken view of the circumstances with respect to consent and accept that the complainant was in fact telling the truth about her lack of consent. He has apparently shown no interest in that approach whatsoever. He has shown no contrition or remorse and has not faced up to his offending behaviour. That of itself is a matter of concern in terms of specific deterrence.”

53 Counsel for the Applicant submitted that the reference to the possibility that the Applicant “genuinely believed that the complainant was consenting to sexual intercourse on the night” was not necessarily inconsistent with the Applicant’s conviction for sexual intercourse without consent under s.61I, having regard go the provisions of s.61HA(3) Crimes Act 1900. Section 61HA provides:

“61HA Consent in relation to sexual assault offences

(1) Offences to which section applies

This section applies for the purposes of the offences under sections 61I, 61J and 61JA.

(2) Meaning of consent

A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3) Knowledge about consent

A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e) not including any self-induced intoxication of the person.


(4) Negation of consent

A person does not consent to sexual intercourse:


(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

(d) if the person consents to the sexual intercourse because the person is unlawfully detained.

(5) A person who consents to sexual intercourse with another person:


(a) under a mistaken belief as to the identity of the other person, or

(b) under a mistaken belief that the other person is married to the person, or

(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:


(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.


(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.”

54 In this Court, there was some discussion as to whether the phrase “trier of fact” in s.61HA(3) extends to a sentencing Judge. Section 61HA is directed to the issue of consent for offences under ss.61I, 61J and 61JA Crimes Act 1900 only. Both the content and the context of the provision suggest that it is confined to the issue of consent at trial. It is noteworthy that the second reading speech of the Attorney General for the Crimes Amendment (Consent - Sexual Assault Offences) Bill 2007, with respect to proposed s.61HA(3), states that the subsection “further provides that the trier of fact - that is, a jury or a judge disposing of a matter without a jury - must have regard to all the circumstances of the case …” (Hansard, Legislative Council, 7 November 2007). The trier of fact must not have regard to any self-induced intoxication of the accused person for the purpose of determining whether that person had knowledge of the complainant’s lack of consent: s.61HA(3)(e).

55 Although the issue is excluded in this way at trial, the intoxication of an offender may be relevant on sentence: R v Coleman (1990) 47 A Crim R 306 at 327; Stanford v R [2007] NSWCCA 73 at [52]-[55]. Certainly, there is nothing in the Crimes Act 1900 or the Crimes (Sentencing Procedure) Act 1999, nor any common law principle, which would exclude intoxication being taken into account on sentence in assessing the moral culpability of a s.61I offender. Of course, how it may be taken into account will depend upon the circumstances of the case and the impact of intoxication upon the offender’s degree of deliberation and whether it contributes to an offender acting out of character: R v Duncan and Perre [2004] NSWCCA 431 at [203]; Stanford v R at [55]. Alcohol is not a licence to commit crime: R v Duncan and Perre at [203].

56 Ms Rigg did not contend that the victim’s intoxication reduced the objective gravity of the offence. She acknowledged that, in some circumstances, the intoxication of a sexual assault victim may be a reason for finding the offence more serious than would be the case in the absence of such vulnerability.

57 Having raised this issue, Ms Rigg acknowledged that the sentencing Judge’s findings indicated an acceptance of the core aspects of the victim’s account regarding lack of consent and demonstration of lack of consent, including the fact that she was dragged across the road by the Applicant with a hand held over her mouth. In these circumstances, counsel submitted that the finding concerning the Applicant’s intoxication could play a limited role only in that the Applicant’s appreciation of the victim’s lack of consent was significantly compromised by virtue of his intoxication. I will return to this issue later in the judgment.

Other Submissions concerning s.6(3)

58 Ms Rigg placed emphasis upon the Applicant’s youth and the need for greater regard to be had to rehabilitation than retribution and general deterrence. Although the Applicant had a prior history for sexual assault offences, it was submitted that these had been committed when he was 12 years of age.

59 With respect to the Applicant’s criminal history, reference was made to the comments of Kirby J in his dissenting judgment in R v Elliott [2006] NSWCCA 305; 68 NSWLR 1 at 28 [130], by reference to the decision of the United States Supreme Court in Roper v Simmons 543 US 551 (2005) at 570, concerning the distinction between adult and child offenders.

60 Emphasis was placed by Ms Rigg upon the Applicant’s period of conditional liberty between October 2005 and February 2008, during which no offences appear to have been committed by him apart from the offences of failure to comply with reporting obligations ultimately dealt with in August 2008. It was submitted that this period was significant given the Applicant’s history.

61 It was submitted that the Applicant comes from a highly dysfunctional family situation and that there are features of vulnerability in his background which bear upon the question of sentence, in accordance with the principles recited by Wood J in R v Fernando (1992) 76 A Crim R 58 at 62-63, in particular factors (D) and (E).

62 Ms Rigg submitted that a lesser sentence ought be fixed. It was submitted that the recommendation in the background report that intensive intervention was appropriate, coupled with the Applicant’s progress whilst in custody from an educational and training perspective, ought lead to a conclusion that his rehabilitation and protection of society would be advanced by a prolonged period of intensive supervision on parole.

63 The Applicant relied upon Judicial Commission sentencing statistics for s.61I offences between January 2002 and December 2008 where the standard non-parole period was inapplicable. Of 77 cases, only 18 resulted in a sentence more severe than a total sentence of six years’ imprisonment. Although acknowledging the limitations of statistics of this type, Ms Rigg submitted that they demonstrated that the present sentence was high for sentences for this offence.

64 Ms Rigg submitted that reduction in the total sentence, and a proportionality greater reduction in the non-parole period, was warranted in this case.

65 The Crown submitted that no lesser sentence ought be imposed upon the Applicant. It was submitted that the sentencing Judge was correct in his finding that this was a particularly serious sexual offence committed by an offender who acted as if he was an adult (ROS7).

66 The Crown submitted that his Honour had correctly considered the Applicant’s prior criminal history as entitling him to no leniency, with that history revealing a continued disobedience of the law so as to enhance considerations of retribution, deterrence and protection of society (ROS5-6). The Crown submitted that the evidence indicated that the Applicant’s prospects of rehabilitation were poor. There was a complete lack of contrition and remorse.

67 In all the circumstances, the Crown submitted that no lesser sentence was warranted in law and should be passed.

Decision

68 In Maldonado v R [2009] NSWCCA 189, Latham J (Campbell JA and Harrison J agreeing) said at [19]:

“Mere identification of an error in the sentencing proceedings is not sufficient to enliven s 6(3) of the Criminal Appeal Act 1912. The error must be a material error, that is, not technical or trivial in nature. If it has the capacity to infect the exercise of the sentencing discretion, this Court has an obligation to re-exercise that discretion and substitute another sentence, unless satisfied that no lesser sentence is warranted in law. It is not necessary for the applicant to persuade the Court that the sentences are manifestly excessive before he may succeed on this ground: Baxter v Regina [2007] NSWCCA 237 ; (2007) 173 A Crim R 284.”

69 As Spigelman CJ explained in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 287 [19], s.6(3) is directed to ensuring that the Court of Criminal Appeal re-exercises the sentencing discretion, taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which the subsection provides.

70 The imposition of sentence upon a juvenile offender who has committed a serious crime is invariably a challenging task. That task is made more complicated with respect to the Applicant because of his history of offending, including sexual assault offences dealt with on indictment leading to conviction by a jury.

71 The 2003 sexual assault offences bore certain similarities to the present offence, in that the victim was a 16-year old girl from the Kempsey community who was pushed to the ground by the Applicant, who then pulled down her pants and had penile/vaginal intercourse with her: BP v R at [10]. Shortly before, the Applicant had tripped her and inserted his fingers in her vagina as she lay screaming and crying: BP v R at [9]. There was no suggestion that the Applicant had consumed alcohol or any other substance before commission of the 2003 offences.

72 Following sentence in 2005, the Applicant received sex-offender counselling and assistance both in a juvenile custodial setting and in the community. Thereafter, whilst still a juvenile, he offended again in a serious fashion by sexually assaulting a young woman using significant force to achieve that end. The March 2008 offence was committed about six months after the expiration of the parole period fixed for one of the 2003 offences, and only days after the completion of the bond imposed on the other 2003 matter.

73 Given the age of the Applicant, it is necessary for a sentencing court to have regard to s.6 Children (Criminal Proceedings) Act 1987 and s.3A Crimes (Sentencing Procedure) Act 1999. Section 6 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.”

Section 3A provides:

“3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

74 The principles relevant to the sentencing of a juvenile offender were summarised by McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-578 [22]-[26]:

“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]).”

75 It is, of course, necessary to apply these statutory provisions and statements of principle to the particular circumstances of the case. As McClellan CJ at CL observed in KT v R at 578 [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. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.

76 What does the evidence reveal in the present case? The Applicant was nearly 17 years’ old at the time of the offence. The background report and presentence report do not assert that immaturity on the Applicant’s part played any part in the commission of the offence. Parts of the Court’s 2006 judgment on the doli incapax issue shed light upon the Applicant’s understanding and maturity in 2003, in ways which do not assist the Applicant on sentence for the 2008 offence: BP v R at [18], [20], [22]-[23], [36] and [39].

77 After conviction and sentence for the 2003 offences, the Applicant participated in sex-offender specific counselling whilst in custody and whilst on community supervision, and appeared to have a reasonable understanding of relevant principles and an ability to articulate them (see [30] above). The 2008 offence was committed whilst the Applicant was affected to some extent by alcohol. Consumption of alcohol may have served to reduce inhibitions, but it did not decrease the Applicant’s awareness of what he was doing: R v Duncan and Perre at [203]. The Applicant grabbed the victim and dragged her across a public street to a location where he sexually assaulted her. In R v Bus (NSWCCA, 3 November 1995), in the context of considering the relevance of youth to the sentencing of a juvenile sex offender, Hunt CJ at CL observed (at page 7) that “non-consensual sexual intercourse is regarded as an extreme form of violence”. This description is apt to the Applicant’s offence. The victim was used effectively as a sex object, perhaps reflecting the Applicant’s approach to past sexual activity within his peer group (see [28] above). Whatever had been the Applicant’s past experience, however, he had received intensive sex-offender counselling and, by March 2008, he well understood the proper boundaries of lawful sexual activity, and the consequences of crossing those boundaries and engaging in forcible and non-consensual sexual intercourse with a woman.

78 Was the Applicant’s immaturity a significant contributory factor to the commission of the 2008 offence? In the circumstances of this offender and this offence, I do not consider that the relevant nexus exists. In any event, to the extent to which the Applicant’s youth and immaturity may operate in his favour on sentence, they are very largely neutralised by the clear warnings flowing from his prior conviction for similar offences and the subsequent counselling and reinforcement provided to him concerning the limits of the law in the area of sexual activity.

79 The Applicant’s intoxication may serve to explain how his judgment was affected, to some extent, to act in this way. However, this is a not uncommon scenario for sexual assault offences and it can provide limited assistance only to an offender on sentence. This is especially so where the Applicant ought to have been acutely aware, from his prior offences and subsequent sex-offender counselling, of the boundaries set by the law concerning sexual activity with others. Further, the facts as found by the sentencing Judge reveal significant force being used by the Applicant upon the victim both to take her to a secluded spot where the sexual assault could take place and in keeping her quiet whilst that process was undertaken.

80 The evidence reveals that the Applicant has had a troubled and dysfunctional family history. Alcohol and substance abuse appear to have been part and parcel of his life. However, despite efforts taken whilst in custody and after his return to the community to provide him with sex-offender counselling and other community support, the Applicant has reoffended in the manner which brings him once again before this Court.

81 The sentencing Judge had regard to the Applicant’s deprived background in accordance with the decision in R v Fernando, in particular by reference to his problematic drinking (ROS9), and it is appropriate for this Court to give effect to this matter as well. It is important, however, to keep the principles in R v Fernando in perspective. In R v Morgan [2003] NSWCCA 230; 57 NSWLR 533, Wood CJ at CL (Simpson and Adams JJ agreeing) observed at 538-539 [20]-[22]:

“20 As has been made clear by subsequent decisions, these remarks [in R v Fernando ] were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied: R v Hickey NSWCCA 27 September 1994, R v Ceissman [2001] NSWCCA 73 and R v Pitt [2001] NSWCCA 156.

21 Rather they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which, in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed. They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol-related.

22 The present offences were not alcohol-related and the appellant did not come from a remote community, nor was he unfamiliar with the justice system. While the ‘ Fernando considerations’ could properly be taken into account, they added little to the present sentencing exercise beyond those matters which would otherwise have been taken into account, for any offender, as subjective circumstances. They were not favourable, but they did point to the need for a sentence that took into account the rehabilitative aspects, particularly in relation to post release supervision and assistance.”

82 It is necessary to bear in mind as well that the victim came from the same Aboriginal community as the Applicant. A victim impact statement was before the sentencing Judge which revealed areas of social disadvantage experienced by her, as well as the damaging consequences of this sexual assault upon her. It was important that recognition of the Applicant’s problems, in accordance with the R v Fernando principles, “not have the unintended consequence of apparently devaluing the effect of offences on victims including circumstances where the victims are already themselves subject to the same pattern of disadvantage”: R v Powell [2000] NSWCCA 108 at [24] (Simpson J); R v Pitt [2001] NSWCCA 156 at [20] (Wood CJ at CL).

83 A factor of particular concern is the absence of contrition and remorse which the Applicant has demonstrated with respect to the sexual assault offences in 2003 and 2008. The background report contains a most guarded assessment because of his pattern of offending.

84 This Court has observed that there can be rehabilitation without confession, and that offenders found guilty after trial are not to be automatically deprived of a finding of good prospects of rehabilitation unless they acknowledge their guilt: Alseedi v R [2009] NSWCCA 185 at [65]; Ali v R [2010] NSWCCA 35 at [48]. Nevertheless, it has been said that remorse will be a major factor in determining whether an offender is unlikely to reoffend and has good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]; Ali v R at [47]. A particular difficulty for the Applicant in this respect is that his denial of guilt concerning the 2003 sexual assaults is accompanied by the fact that he reoffended, in a similar way, in 2008 (and again denies his guilt) despite custodial and community sex-offender counselling in the intervening period. This element of recidivism does not bode well for the Applicant’s prospects of reoffending.

85 It is desirable that children who commit offences accept responsibility for their actions and consideration should be given to the effect of the crime on the victim: s.6(g), (h) Children (Criminal Proceedings) Act 1987. The purposes of punishment include the making of the offender accountable for his actions and the recognition of harm done to the victim of the crime and the community: s.3A(e), (g) Crimes (Sentencing Procedure) Act 1999. The lack of contrition and remorse on the Applicant’s part means that no act or statement on his part serves these purposes.

86 The evidence before the District Court revealed that the Applicant had progressed well from a training and educational point of view whilst in custody. The Court was informed that, by the time of the hearing in this Court on 7 May 2010, the Applicant had been transferred to an adult correctional centre and was being housed at the Malabar Special Program Centre at Long Bay.

87 Having regard to the particular circumstances of the offence and the Applicant , it was necessary that personal deterrence, general deterrence and retribution continue to play a substantial role in the imposition of sentence, in company with rehabilitation. The Applicant’s youth was a significant factor but ought not dominate the assessment of sentence in this case.

88 The maximum penalty for this offence is imprisonment for 14 years. The sentence in the District Court was one of imprisonment for six years comprising a non-parole period of four years and a balance of term of two years. The offence was characterised in the District Court as lying just below the middle range of objective seriousness, a finding which is not challenged in this Court.

89 The Applicant went to trial and continues to demonstrate a lack of contrition and remorse. He has a significant criminal history, including convictions for sexual assault offences, albeit committed when he was 12 years and eight months’ old. The Applicant’s criminal history does not assist him on sentence: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566. In the circumstances of this case, the present offence was not an uncharacteristic aberration but rather a manifestation of a continuing attitude of disobedience of the law which may indicate that a more severe penalty is warranted: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 477. The sentencing Judge was correct in so finding.

90 I have regard to the submissions of the Applicant by reference to sentencing statistics for s.61I offences which are not subject to a standard non-parole period. However, these bare statistics are of limited use, especially given the Applicant’s prior history of sex offending.

91 Applying the principles referred to at [68]-[69] above, I am satisfied that the errors in the District Court were material errors which affected the exercise of sentencing discretion. Having taken into account all relevant statutory requirements and sentencing principles, I am satisfied that a lesser sentence ought be passed for the purpose of s.6(3) Criminal Appeal Act 1912.

92 However, a substantial sentence of imprisonment must be imposed on the Applicant. The non-parole period must represent the minimum term of imprisonment which the Applicant should serve for this offence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 716-717 [55]-[58].

93 This was an opportunistic, but serious, offence committed by a young offender affected by alcohol. The Applicant’s prior criminal history did not assist him on sentence. The Applicant’s period of generally offence-free conditional liberty between late 2005 and early 2008 supports a finding of “special circumstances” for the purposes of s.44 Crimes (Sentencing Procedure) Act 1999. There is a need for intensive community supervision by way of parole to assist the Applicant to address his alcohol and drug issues and to assist with training, education and employment.

94 The appropriate sentence is one of imprisonment comprising a non-parole period of three years and six months with a balance of term of two years.

95 Counsel agreed that it was open to this Court to resentence the Applicant without a further background report under s.25 Children (Criminal Proceedings) Act 1987, given the availability of the report relied upon in the District Court. Counsel for the Applicant did not seek in this Court an order under s.19 Children (Criminal Proceedings) Act 1987 as part of any further sentence to be passed. The Applicant is now over 19 years of age. As mentioned above (at [86]), the Court was informed that the Applicant had been transferred to an adult correctional centre.

96 Since preparing these reasons, I have had the advantage of reading the judgment of Hodgson JA.

97 The following comments relate to issues arising from his Honour’s judgment, in particular at [5]-[6]. The principal area of difference between Hodgson JA and myself lies in the approach to youth and immaturity in sentencing the Applicant.

98 The authorities make clear that the youth and immaturity of a young offender are matters to be taken into account in passing sentence. Emphasis is given to this issue by s.6(b) Children (Criminal Proceedings) Act 1987, which requires a sentencing court to have regard to the principle that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance (see [73] above). The fact that youth and immaturity may be relevant to sentence may serve to explain why the standard non-parole period system does not apply to juvenile offenders. The weight to be given to an offender’s youth and immaturity will depend upon the circumstances of the particular case.

99 The applicable principle is that where immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years: R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at 458 [25]; KT v R at 577 [23].

100 Factors such as youth and immaturity do not have automatic consequences in the exercise of sentencing discretion. A process of individualised justice is involved in which a sentence is passed having regard to the circumstances of the offence and the offender:
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at 276 [147]. This process involves an assessment of the role of youth and immaturity in the particular case. In making this assessment, a sentencing court should take into account what the evidence reveals concerning the significance of youth and immaturity, including the degree of learning, experience and understanding of the young offender of relevant legal rules and the consequences of breaking those rules.

101 It may be taken that the Applicant had the maturity of a person aged 16 years, 11 months and three weeks at the time of the commission of the sexual assault on 6 March 2008. However, the Applicant possessed as well by that time, the considerable experience, learning and understanding which he had acquired from his involvement with the criminal justice system following his earlier sexual assault offence and the process of sexual assault counselling which he had received whilst in custody and after his return to the community. In my view, a practical and concrete assessment of the role of the Applicant’s youth and immaturity in the commission of this offence requires these aspects of the Applicant’s makeup (which are known to the Court) to be taken into account. An assessment of the role of youth and immaturity on sentence is not an abstract process.

102 The need for the law to avoid an abstract or automatic response to the youth and immaturity of an offender is illustrated by sentencing cases in Victoria and New South Wales for the offence of dangerous driving causing death. The laws of these States permit persons aged 17 years to obtain a driver’s licence with the attendant obligations and responsibilities attaching to that privilege. The youth, immaturity and inexperience of an offender who kills or seriously injures persons whilst driving dangerously play a limited and subordinate role on sentence: Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466 at 474-475 [40]-[44], 477 [53]-[55]; SBF v R [2009] NSWCCA 231 at [141]-[160]; TG v R [2010] NSWCCA 28 at [33].

103 Hodgson JA identified certain factors at [6] which were to be taken into account. To these factors, I would add the learning, experience and understanding of the Applicant concerning this class of offence. As KT v R makes clear at 578 [25], in determining whether an offender has engaged in adult behaviour, a sentencing court will look at a range of matters including the existence of an extensive criminal record, as well as the type of factors referred to by Hodgson JA. This reflects the fact that a repeat offender, such as this Applicant, may have acquired a level of knowledge, understanding and insight into his offending behaviour, but nevertheless committed a further offence.

104 Considerations of this type led me to the conclusion expressed at [78] above that, to the extent to which the Applicant’s youth and immaturity may operate in his favour on sentence in this case, they are very largely neutralised by the clear warnings flowing from his prior conviction for similar offences, and the subsequent counselling and reinforcement provided to him concerning the limits of the law in the area of sexual activity.

105 I have also had the advantage of reading the judgment of Rothman J. With respect to his Honour’s observations at [109], I do not consider that the principles expressed by Wood J (as his Honour then was) in R v Fernando, or in decisions of this Court which have considered that case, relate to aspects of discrimination against, and disempowerment of, indigenous Australians and the consequence of that treatment in family circumstances. The line of authority speaks for itself. I do not consider that this case requires elaboration upon the statements of principle in those authorities, which are not in doubt.

106 I would quash the sentence and resentence the Applicant to a term of imprisonment comprising a non-parole period of three years and six months with a balance of term of two years. As this is a minority view with respect to the proposed sentence, it is not necessary that I formulate orders to give effect to this conclusion.

107 ROTHMAN J: I agree with the orders proposed by Hodgson JA and I agree with his Honour’s reasons therefor. I wish to add some short additional comments.

108 I confirm my comments in MJ v R, CPD v R [2010] NSWCCA 52, referring, in part, to R v LNT [2005] NSWCCA 307. In MJ v R, CPD v R, supra, I said:

“[70] Further to the foregoing, I confirm the comments made by me in R v LNT [2005] NSWCCA 307 (with whom Simpson and Johnson JJ agreed) as to the principles to be adopted on the sentencing of young offenders. The Children (Criminal Proceedings) Act 1987 applied to minors and establishes a different regime than for adults. Nevertheless, a person who is 17½ years of age cannot be expected to be treated significantly differently from his co-offender who has turned 18. This does not mean that youth, who are not minors, are not entitled to an assessment of sentence, that takes into account their youth and immaturity: see LNT, supra, at [32] and following, and the cases cited therein.

[71] Chronological age of a young offender is not solely the determining factor in deciding how much weight should be attributed to general deterrence, as distinct from the other factors, in assessing an appropriate sentence. Regard must be had to the mental state and circumstances of the offender at the time of the offending: R v AN [2005] NSWCCA 239, per Howie J, with whom James J and I agreed, at [57]. Likewise, the violence of the offence, of itself, does not necessarily establish that the juvenile is acting ‘as an adult’. In sentencing, juveniles (including minors), who act as an adult would, the function of the courts requires deterrence and retribution and they remain, or become, more significant elements in sentencing the youth: R v AN, supra, at [53], citing R v Bus (Court of Criminal Appeal, 3 November 1995, unreported). The test, in those circumstances, is whether the youth has conducted himself or herself in a way that an adult would, and that requires an assessment of the maturity and conduct, not only the degree of violence and the gravity of the offence.”

109 Further, while otherwise agreeing with the reasons of Johnson J, I reiterate that the principles expressed by this Court in Fernando, supra, are not, in any way, limited in application to remote communities, but, rather, seek to point particularly to aspects of the discrimination against, and disempowerment of, indigenous Australians and the consequences of that treatment in family circumstances. It is by a better understanding of the causes of criminal behaviour (wherever it occurs and in whatever community or circumstances) that one can better fashion sentences that achieve the required outcomes of deterrence (general and specific) and rehabilitation. Nevertheless, the process of sentencing, and the criminal law, is not a tool for the attainment of social justice.

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