LS v R

[2020] NSWCCA 120

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

LS v R [2020] NSWCCA 120

Hearing dates:

7 May 2020

Date of orders:

10 June 2020

Decision date:

10 June 2020

Before:

Simpson AJA at [1]
Rothman J at [10]
Bellew J at [95]

Decision:

(1)   Leave to appeal be granted;

 

(2)   Sentence imposed by the District Court on LS on 1 March 2019 be quashed;

 

(3)   LS be sentenced to an aggregate sentence of 4 years and 9 months’ imprisonment, commencing 18 August 2017 and concluding 17 May 2022, with a non-parole period of 2 years and 9 months’ imprisonment, concluding 17 May 2020;

 

(4) Pursuant to the terms of s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court varies the sentence imposed upon LS by the Local Court of New South Wales at Wagga Wagga on 30 March 2020 for assault law officer (not police officer) so as to commence on 18 December 2019 and conclude on 17 June 2020.

 (5)   The Applicant is first eligible for release on parole on 17 June 2020.

Catchwords:

CRIMINAL LAW – Sentence appeal – exceptional subjective circumstances – youth, ADHD and autism – serious offence – psychology reports show no or very little risk of similar re-offending – in circumstances, sentence imposed outside legitimate discretion available – manifest error – offender re-sentenced.

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18
Crimes Act 1900 (NSW), ss 61M(2), 66A, 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 56, 59
Evidence Act 1995 (NSW) s 4(2), (3)

Cases Cited:

BM v R [2019] NSWCCA 223
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
GBB v R [2019] NSWCCA 296
Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
MJ v R; CPD v R [2010] NSWCCA 52
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Paul Campbell v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
R v AN [2005] NSWCCA 239
R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unrep)
R v LNT [2005] NSWCCA 307

Category:

Principal judgment

Parties:

LS (Applicant)
Regina (Respondent)

Representation:

Counsel:
E McLaughlin (Applicant)
E Wilkins SC (Respondent)

  Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/195181

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

1 March 2019

Before:

Girdham SC DCJ

File Number(s):

2017/195181

Judgment

1. SIMPSON AJA: I have had the advantage of reading in draft the comprehensive judgment of Rothman J and the additional observations of Bellew J, with both of which I agree. It is appropriate that I state, as briefly as possible, the following.

2. At first blush, the offences to which the applicant pleaded guilty fall into the most serious category of child sexual offending. In particular, an offence of having sexual intercourse with a child of four years would, ordinarily, be expected to attract a very significant penalty indeed. The seriousness of the offence may be gauged by the maximum applicable penalty, imprisonment for life: Crimes Act 1900 (NSW), s 66A.

3. In the agreed statement of facts that offence was said to have been committed by the applicant by licking the complainant “in and around” her vagina, and holding her vagina open with his fingers while he photographed it. That description appears to be consistent with at least one of the images from the applicant’s computer.

4. Further, the child abuse material offence involved a consistent pattern of possession, and, worse, sharing, of images depicting the sexual abuse of children.

5. If regard is had only to those objective facts it would be understandable that the sentences now proposed would be unacceptable to the community at large. But there are other, important and countervailing, factors to be considered.

6. In his interview with Dr Lennings the applicant said that he did not “actively lick the child’ but put his tongue in the photograph to give the impression that he did so, and that he told other members of the internet chat group that he had done so, in order to gain approval. Whether that was so was not raised as a fact in the sentencing proceeding and was therefore not the subject of determination by the sentencing judge. It is, however, consistent with the findings of Dr Lennings, which were not in contention, that the applicant was motivated by his desire or need for approval and “validation” from his internet “friends”.

7. The applicant’s statement to Dr Lennings was not excluded by the hearsay provisions of the Evidence Act 1995 (NSW): s 4(2) and (3). No direction as envisaged by subs (4) was given. The assertion by the applicant, if accepted, modifies to some extent the seriousness of that offence. Even leaving aside the “licking” allegation, the interference with the vagina of a four year old child must be seen as serious.

8. There were, however, as has been set out by Rothman J, powerful countervailing factors in this sentencing exercise. The applicant’s youth at the time of the offending, his disability resulting from autism spectrum disorder and attention deficit hyperactivity disorder all mitigate, to a substantial degree, his moral culpability as well as the need to impose a sentence with a significant component of general and/or specific deterrence. Equally important is the opinion of Dr Lennings, not contested, that the applicant had, effectively “grown out of” his interest in material of the sort that was the subject of the child abuse material count, and also the cause of his committing the s 66A offence.

9. These factors make this a wholly exceptional case which should not be taken as setting any bench mark for future sentencing.

10. ROTHMAN J: The Applicant seeks leave to appeal the sentence imposed upon him in the District Court by Girdham SC DCJ on 1 March 2019. Her Honour imposed an aggregate sentence of 6 years and 9 months’ imprisonment, which includes a non-parole period of 4 years, each of which date from 18 August 2017. The sole ground of appeal is that the sentence is manifestly excessive.

11. The aggregate sentence was imposed for 2 offences the details of which were:

1. Sequence 2: produce child abuse material between 16 October 2016 and 9 December 2016, contrary to s 91H(2) of the Crimes Act 1900 (NSW), for which a maximum penalty is set of 10 years’ imprisonment and for which her Honour indicated a sentence of 2 years and 9 months (taking into account an offence on a Form 1, being the possession of child abuse material); and

2. Sequence 6: sexual intercourse with a child under the age of 10 years, namely 4 years of age, contrary to section 66A of the Crimes Act, the maximum penalty for which is life imprisonment and for which her Honour set an indicative sentence of 5 years and 9 months.

12. The foregoing indicative sentences were the result of the application, by her Honour, of a 25% discount for a plea of guilty at the earliest possible opportunity, namely in the Sutherland Children’s Court on 13 December 2017. The Applicant was 16 years of age at the time the offences occurred; 17 years of age when he pleaded guilty; and 18 years of age (almost 19 years of age) when sentenced by her Honour. He is now 20 years of age. The learned sentencing judge ordered that the sentence be served in a juvenile facility, but, as a result of assaults upon the Applicant, he was moved to a protected section of an adult prison.

13. This is an unusual case of a juvenile offender, for which there is no evidence of any paraphilic or paedophilic tendencies, committing an offence, which, were it not for the youth of the Applicant, would warrant, even with the other subjective factors, an extremely severe sentence. It is necessary to summarise the facts, being the conduct involved in the offences and the subjective circumstances of the offender.

Criminal conduct

14. The circumstances of the offending were the subject of Agreed Facts, which, in turn, were summarised by the Sentencing Judge. [1]

    1. Agreed Facts Ex 1 on Sentence and the summary is in the Remarks on Sentence at pp 4 – 7.

15. On 8 February 2017, the police executed a search warrant at the Applicant’s home, where he lived with his parents. Police seized a ThinkPad computer, a laptop, a smart phone and memory cards from the Applicant’s bedroom.

16. Police analysis of the ThinkPad computer resulted in an estimate that there were approximately 914 images of child abuse material and 292 videos of child abuse material on the ThinkPad computer. [2] Further analysis showed that 163 of the images on that computer had been taken with an Apple iPod and within those images were photographs of the Applicant alongside young children and school-aged children.

    2. Agreed Facts at [3]

17. There were a number of images considered to be child abuse material, depicting different young prepubescent males with their penises exposed and also being masturbated. Some of those images were tagged with GPS references, which linked to the Applicant’s address. [3]

    3. Agreed Facts at [4].

18. There were [4] :

    4. Agreed Facts at [4(a)-(g)].

1. four photographs taken on 24 September 2014 at the Applicant’s residence, depicting a boy of about one year of age being “grabbed on the penis by a male hand”;

2. one photograph taken on 25 December 2014, at the Applicant’s residence, showing a naked, young, pre-pubescent female in the shower, which photograph focused on her vagina and which female was identified as being from the same neighbourhood as the Applicant;

3. a total of twenty six photographs taken on 15 January 2015, at the Applicant’s residence, showing a male masturbating the penis of a pubescent male on the lounge and in the Applicant’s bedroom;

4. two photographs, taken on 23 January 2015, at the Applicant’s residence, showing the penis of a child about three years of age;

5. five photographs, taken at another address in the same suburb, of a male masturbating a pubescent male;

6. four photographs, taken on 19 December 2015 at the Applicant’s residence, with the victim of the sexual intercourse charge “lying on the bed in sexualised poses with her top lifted”; and

7. six photographs, taken on 1 May 2016, at the Applicant’s residence, with the Applicant holding open the victim’s vagina with his fingers and licking her vagina.

19. The victim, referred to in sub-paras [18(6)-(7)] above, was four years of age. The photographs of the victim, referred to above, were examined by police who linked fingerprints in the images to those of the Applicant. [5]

    5. Agreed Facts at [8].

20. An examination of the mobile phone seized from the Applicant’s bedroom showed a discussion between the Applicant and another person on his Gmail account. This conversation occurred on 2 January 2017. The Applicant appears to have met the other person on an online child abuse site. During the course of the conversation, the Applicant made admissions, as to the conduct that gave rise to Sequence 6; that he was babysitting the victim at the time; and other sexual references.

21. The conversation was consistent with the photographs of the Applicant and the victim, described above at para [18(7)]. [6]

    6. Agreed Facts at [9], [10] and [11].

22. Police also analysed the data on the laptop and it was estimated that there were approximately 154 images of child abuse material and 531 videos of child abuse material on the laptop. The majority of the images and videos that were found on the downloads of the Applicant’s devices were of children between the ages of six months old and six years old, being sexually assaulted by adults. [7]

    7. Agreed Facts at [13].

23. The Applicant was arrested on 29 June 2017 and was granted bail. The bail was revoked on 19 August 2017 as a result of the Applicant being in possession of a phone, in breach of the bail conditions. Analysis of that phone showed that between 15 and 17 July 2017, namely two weeks after obtaining bail, the Applicant had uploaded photographs to a website, which permitted photo sharing and which police had linked to people involved in possessing child abuse material. The images that were uploaded by the Applicant were not child abuse material and were titled “primary school kids playing 5”, “soccer/football boys” and “netball girls”.

Subjective Circumstances

24. The Applicant was 14 years of age as at 24 September 2014, the date of the first photographs the subject of the offences. [8] The Applicant was 16 years of age at the time of the sexual intercourse offence (Sequence Six), having been born in 2000 and the offence having occurred on 1 May 2016.

    8. Agreed Facts at [4a].

25. The Applicant has been diagnosed with Autism and Attention Deficit Hyperactivity Disorder (ADHD) and has suffered from these conditions from an early age, having been diagnosed at the age of seven or eight. His ADHD has been assessed as severe. There are associated diagnoses of Oppositional Defiant Disorder and Conduct Disorder and, probably as a result of his ADHD and Autism, the Applicant suffers deficits in both expressive and receptive language; sensorimotor difficulties; and attention/executive function deficits. Executive Function Deficits are central to planning, organising, inhibiting impulsivity and error correction, and deficits in these areas can be quite meaningful for failure to control and direct behaviour properly. [9]

    9. Report of Dr Christopher J Lennings OAM, Psychologist, 18 February 2018, p 8.

26. In 2011, the Applicant presented with catastrophic rages or panic attacks, sensorimotor difficulties and sensitivities. This seems to have been a consequence of his Autism. From eight or nine years of age, he was trialled on a number of medications, including stimulants, anti-depressants, low-dose anti-psychotics and behaviour management medications.

27. The Applicant attended mainstream primary school until Year 3 and thereafter a specialist school. He was subsequently home-schooled for a time, attended a Distance Education High School and Lucas Heights Community School in Years 8 to 10. In 2017, the Applicant commenced a plumbing apprenticeship and went to TAFE, which was put on hold following his remand.

28. At the date of the sentence hearing (January 2019), the Applicant had been assaulted in custody on eighteen occasions. On one occasion, he was taken to hospital with a broken nose. He had engaged in self-harming incidents on six occasions.

29. A Juvenile Justice Report, dated 4 April 2018, sets out the context of the offending and the subjective circumstances of the Applicant are appropriately summarised by Dr Lennings OAM, Psychologist, in the Report of 18 February 2018.

30. While the Applicant had no prior convictions, it is clear from the evidence in the proceedings that he had begun searching pornography online when he was about 8 or 11 years of age. Initially, the Applicant looked for and at images of children of his own age.

31. As a consequence of those searches, he encountered images of child abuse material and commenced chatting in various Internet chat rooms with people who shared a similar interest. The Applicant reported that it was a rule of these groups that members had to continue sharing child abuse material to other members in order to remain part of the group. This accords with the experience of police and of the Courts in the investigation and enforcement of offending of this kind.

32. Plainly, the Applicant enjoyed receiving praise from other members when he shared material. Dr Lennings[10] summarised the position in the following terms:

“[The Applicant] appears to have had significant difficulties in developing social relationships over the years, which is to be expected given the diagnosis. At some point as he was entering or about to enter into puberty he became engaged with a deviant Internet site. [The Applicant’s] interest in sexual themes had been well established from a young age due to both hormonal and medical issues and had become something of a fixed interest. This chat group were able to capitalise on [the Applicant’s] young age, sensitivities and need for social validation and groomed him into providing the provision of child abuse material. [The Applicant] became quite addicted to both that material and to the chat group, which provided him with validation for his fascination. Whilst [the Applicant] reports that over time his interest in child abuse material did wane his interest in maintaining the support of the chat group did not. In that vein he continued to both collect and to eventually produce child abuse material. Whilst he does not appear to have been personally stimulated by that stage (i.e. he did not engage in any sexual release from the child abuse material), it is clear that he was psychologically quite addicted to the process of collecting, swapping and trading in child abuse material images. In that context the offence took place.”

10. Report of Dr Christopher J Lennings, Psychologist, 18 February 2018, p 9 [52].

33. Dr Lennings continued in his summary of the position of the Applicant at [55] of the above Report, which is in the following terms:

“In considering [the Applicant’s] future risk he has had a long-term sexually deviant interest. He has engaged in the creation and dissemination of child abuse material. However on his account this was a developmental phase that he has now left behind. Nonetheless it would be likely and necessary that offence specific treatment would be required in order to assess the extent to which that is a genuine statement on his part as opposed to a belief that has grown out of his enforced detention and his wish to deny the consequences of his behaviour. However on my view it appears likely that it was a developmental phase that he has now leaving behind.”

34. Any initial qualification by Dr Lennings was clarified both in examination and in cross-examination during the course of the proceedings on sentence, and in a Supplementary Report of Dr Lennings dated 12 January 2019, in which Dr Lennings said:

“I continue to believe that his [the Applicant’s] prior behaviour was a developmental phase that he has now left behind albeit with some struggle to adapt following the arrest, which is to be expected given his diagnostic status and youth.”[11]

11. Report of Dr Christopher J Lennings, Psychologist, 12 January 2019, at [4].

35. The Applicant is an only child and his parents remain married. There is some suggestion of some domestic violence (historically) in the family, but the evidence is equivocal. The psychologist from Juvenile Justice, in a report of 4 April 2018, expressed the view that the Applicant may have been predisposed to sexual offending by childhood exposure to family violence and premature exposure to online pornography. Generally, this has not been borne out and is not the view of Dr Lennings.

36. Dr Lennings opined[12] that the Autism is “directly associated with his fixed interest in matters sexual, particularly child-abuse material, and also his need for social validation”. Dr Lennings concluded, as is clear from the foregoing extracts, that both the Autism and ADHD have “led to an increase in impulsivity, a reduction in executive functioning and a capacity to consider the consequences of behaviour. To that extent his developmental disorder has a significant relationship to his offending”. Further, Dr Lennings made clear, in his oral evidence, that there was “little likelihood” that the Applicant has an ongoing interest in child-abuse material.

    12. Report of Dr Christopher J Lennings, Psychologist, 18 February 2018, at [58].

37. The Applicant did not give evidence in the proceedings on sentence and there was no Victim Impact Statement. The effect of sexual abuse on young persons is notorious and is usually lifelong. In this case, the absence of violence or physical harm and the very young age of the victim may result in the incident having less effect on the victim than might otherwise have been the case.

Remarks on Sentence

38. As is clear from the recitation of the sole ground of appeal, there is no suggestion that the Remarks on Sentence disclose an identifiable error in sentencing principles. Rather, the Applicant relies upon manifest excess. In so relying, it is the Applicant’s burden to satisfy the Court that the outcome of the sentencing exercise was “unreasonable” or “plainly unjust”. [13]

    13. House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.

39. A submission that a sentence is manifestly excessive (or manifestly inadequate) requires the Court to form a conclusion, which is either an appropriate conclusion or it is not. As the High Court made clear,[14] manifest error may occur when the outcome is such that there appears to be a misapplication of principle or an error of the kind that, were it able to be identified, would be one of the identifiable errors described in House v The King.

    14. House v The King, ibid.

40. Nevertheless, often particulars of suggested error are provided. In these proceedings, the sentencing judge assessed the objective seriousness of both offences as approaching the mid-range. As to the sexual intercourse offence, the sentencing judge came to the view that it had been aggravated, because the Applicant was in a position of trust, being the victim’s babysitter, but that breach of trust lay “significantly below breaches otherwise seen in these courts”. [15]

    15. Remarks on Sentence, p 9.

41. The sentencing judge also considered that the provisions of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) had application because the victim was aged four. That provision refers to the vulnerability of the victim, inter alia, because the victim was very young.

42. Care must be taken in applying the foregoing provision to an offence that is specifically confined to a situation where the victim is under 10 years of age. The vulnerability of the victim is a factor that is inherent in the offence itself. Nevertheless, it is appropriate to take into account the relative age of the victim and the fact that she was very young and not just under the age of 10.

43. The sentencing judge considered that no physical harm was caused to the victim and, in that limited sense, was correct. [16]

    16. Remarks on Sentence, p 10.

44. As to the offence relating to the production of child-abuse material, the sentencing judge noted that actual children were depicted; the purpose of the material was in order to disseminate it to a paedophile chat room; there were multiple victims; and there was premeditation. However, her Honour took the view that the premeditation would be given little weight.

45. The sentencing judge accepted the Applicant’s expression of profound remorse. [17] Further, the judge found that the Applicant’s prospects of rehabilitation were reasonable. [18]

    17. Remarks on Sentence, p 22.

    18. Remarks on Sentence, p 21-23.

46. The early plea of guilty warranted, according to the sentencing judge, a discount of 25%. [19] The Remarks on Sentence also deal with the Applicant’s diagnoses of Autism and ADHD which were found to have contributed materially to his offending so as to reduce his moral culpability. [20] Her Honour remarked that the weight to be given to retribution and punishment was somewhat diminished, while the weight to be given to rehabilitation was to be emphasised. [21]

    19. Remarks on Sentence, p 21.

    20. Remarks on Sentence, p 20.

    21. Remarks on Sentence, p 21.

47. The sentencing judge found special circumstances, warranting a reduced non-parole period and a longer period during which the Applicant was eligible for parole and could be in the community under supervision. The non-parole period, in the sentence imposed, was approximately 59% of the total sentence and therefore an approximate ratio between the non-parole period and the remainder of sentence of 3:2.

48. The sentence commenced on the date of the Applicant’s remand. Dr Lennings, according to the sentencing judge, was a “very thorough and careful witness” [22] and her Honour accepted the view of Dr Lennings that the breach of bail was “an impulsive act committed at a time when he was not coping, was emotionally vulnerable and had sought support and validation”. Her Honour noted that the breach did not involve child-abuse material and may indicate that the Applicant has “moved on from a deviant sexual interest”. [23]

    22. Remarks on Sentence, p 18.

    23. Remarks on Sentence, p 21.

49. Her Honour also noted that the Applicant’s Autism made custodial life more difficult for him and that he was “significantly at risk from other inmates in terms of physical abuse”. [24] Her Honour indicated that she would impose an increased sentence in relation to Sequence 2 (the production of child-abuse material) because she was taking into account the Form 1 offence. [25] Her Honour also considered that the principles of accumulation and totality were relevant to the imposition of an aggregate sentence. [26]

    24. Remarks on Sentence, p 23.

    25. Remarks on Sentence, p 23.

    26. Remarks on Sentence, p 23.

Submissions and Consideration

50. The Applicant concedes that none of the remarks on sentence or any of the findings by the sentencing judge amount to identifiable error. Nor does the Applicant complain as to the findings of objective seriousness or the recitation of the Applicant’s subjective case. Rather, as has been already indicated, the Applicant submits that when an examination of the outcome of the sentencing process occurs, the outcome is “plainly unjust” or “unreasonable”. In the Applicant’s submission, some error has been made in the process of “instinctive synthesis”.

51. The Crown submits that the sentence was neither unreasonable nor plainly unjust. In particular, the Crown submits that when one considers the interrelationship of the sexual assault and the child-abuse production and possession, the aspect of premeditation and the escalation in offending to the commission of the sexual intercourse offence, a sentence of this magnitude is appropriate and within range.

52. The maximum penalty for the sexual intercourse offence is life imprisonment. The maximum sentence is a guidepost for the fixing of a sentence.

53. Further, the Crown submits that because the sexual intercourse offence is a “serious children’s indictable offence” under s 3(1) of the Children (Criminal Proceedings) Act 1987 (NSW), it must be dealt with according to law under s 17 of that statute. Because the maximum penalty for the sexual intercourse offence was life imprisonment, the District Court, when sentencing, had no discretion in dealing with whether the offence should be treated under the Children (Criminal Proceedings) Act or in accordance with law, unlike the Court’s discretion under s 18 of the Children (Criminal Proceedings) Act in relation to an indictable offence other than a serious children’s indictable offence.

54. The effect of the proposition that the offending must be dealt with in accordance with law, rather than under the special provisions dealing with children’s offences, was not explained by her Honour in her Remarks.

55. The Crown relies upon the age of the victim, to which reference has already been made, being an indication of the degree of exploitation involved in the offence and the level of trust associated with the fact that the offender was a babysitter at the time that the offence occurred.

56. Further, in relation to the production of child-abuse material offence, the Crown relies upon the dissemination of the images and the wide distribution of images of very young children as particularly relevant factors in determining the seriousness of the offences. The Crown also submitted that the premeditated nature of the offending rendered her Honour’s assessment that it was a “serious and grave example of its kind … approaching mid-range seriousness” to be an accurate reflection of the offending.

57. Moreover, the Crown submitted that the degree of “nominal accumulation” involved a significant level of leniency in the sentence imposed upon the Applicant. So too, according to the Crown, was the order under s 19 of the Children (Criminal Proceedings) Act requiring the sentence to be served as a juvenile in a juvenile facility.

58. The proposition, that the Applicant was to have been sentenced in accordance with law, does not diminish the relevance and significance of the Applicant’s youth. Moreover, the fact that the Applicant is to be dealt with according to law does not displace the general provisions in the Children (Criminal Proceedings) Act concerning the treatment of children under the criminal law: see s 6 of the Act and Paul Campbell v R [2018] NSWCCA 87, [25]-[29].

59. The offending in relation to the production of child-abuse material commenced when the Applicant was 14 years of age. The sexual intercourse (the licking of the victim’s genital area) occurred when the Applicant was 16. As a consequence, when dealing with the offence in accordance with law, there is a requirement to stress the purposes of rehabilitation and reform and, in the circumstances of this case, consider the significance of the circumstance that the offender is not an appropriate vehicle for general deterrence.

60. The situation before the sentencing court involved three fundamental considerations: the Applicant’s youth; the Applicant’s diagnosis of ADHD; and the Applicant’s diagnosis of severe Autism. Each one of those factors is one that requires considerations of leniency and special considerations as to how best to structure a sentence to emphasise and encourage rehabilitation and reform. Little attention was paid in the course of the Remarks on Sentence to the relative youth of the offender. On one view, it was plainly a matter that the sentencing judge would have had in mind. The experience of the sentencing judge in criminal law is significant.

61. When one is faced with three quite distinct factors, each of which requires some special consideration, it is insufficient, simply, to add consideration of the factors without understanding that the factors may tend to compound. The sentencing of a person who is a minor, or for whom their youthful age is to be taken into account, emphasises the question of rehabilitation. Rehabilitation has a greater role than general deterrence, except where the youth’s conduct shows maturity and criminality that can be compared with that of an adult. The purposes of general deterrence for those suffering mental conditions also play a lesser role than they would in sentencing an adult. [27]

    27. R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unrep); R v LNT [2005] NSWCCA 307; MJ v R; CPD v R [2010] NSWCCA 52.

62. Nevertheless, the considerations in sentencing a juvenile and sentencing a person with a psychiatric or psychological disability are different. Each of them is a matter that affects general deterrence and each of them is a matter that affects the significance of rehabilitation. Yet each affects those considerations differently. In R v AN, [28] Howie J said:

“[46]    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.”[29]

28. [2005] NSWCCA 239.

29. Ibid, at [46], per Howie J.

63. The Court ought not readily assume that a senior judge, experienced in the criminal jurisdiction, would overlook sentencing principles simply because there is no specific reference to that principle in the Remarks on Sentence. Nor is any remark of her Honour’s or any omission, identifiable as an error. Nevertheless, the effect of the exercise of her Honour’s discretion is a sentence that, in these exceptional circumstances, exceeded the bounds of a legitimate sentencing discretion and, in that sense, given the Applicant’s youth and diagnoses, is manifestly unfair.

64. As is clear from the reference to the report of Dr Lennings, the Applicant’s ADHD and severe Autism were contributing factors in his offending. Further, the progression from same age curiosity to a fixation with the genitalia of younger children was occasioned, not by any paraphilia, but, rather, by validation and peer approval. As a consequence, her Honour’s conclusion that the Applicant’s prospects of rehabilitation were reasonable is, it would seem, an understated conclusion. There was a degree of compulsion in the conduct, relating, as it did, to the applicant’s validation and inclusion in the chat group.

65. Whatever be the reason for the imposition of the sentence, the sentence is, as earlier stated, plainly unjust in that it is a sentence that, in these exceptional circumstances, exceeded the bounds of a legitimate sentencing discretion. In reaching that conclusion, I have had regard to the pattern of sentencing put before the Court, but not by way of limitation. The sample size is extremely small and, in this area, dealing with juveniles with conditions that affect executive functioning and development, there are few truly comparable cases.

66. As a consequence of the foregoing, error is disclosed and the Court is required to re-sentence.

Resentencing

67. The Court received evidence, tendered on the usual basis, namely, to be used if the Court is required to re-sentence, as to the commission of a subsequent offence by the Applicant in custody. The offence was an assault upon a youth worker in a Juvenile Justice Centre which attracted a sentence of a fixed term of 6 months, partially accumulative and partially concurrent and extended the non-parole period for the present offending by 1 month.

68. It seems to me that the subsequent offending adds nothing to the need for specific deterrence in relation to the criminal conduct to which each of these offences relates. Further, the subsequent offence was committed in circumstances where it seemed to reflect diminished executive functioning associated with the Applicant’s Autism. It related to the Applicant’s inability to seek and obtain access to his lawyer.

69. Both the Crown and the Applicant submit that, were the Court to re-sentence, the provisions of ss 56 and 59 of the Crimes (Sentencing Procedure) Act should be utilised to apply the same degree of partial concurrency in relation to this subsequent offence. I accept that such a course is appropriate.

70. I rely on the earlier recitation of the objective facts and the subjective circumstances of the offender. Further, I rely on the opinion of Dr Lennings and the circumstance that the offences do not arise from paraphilia. It seems, and I accept, that the offender has moved on from his preoccupation with genitalia and, in particular, the genitals of young persons. In my view the prospects of the Applicant’s rehabilitation are better than “reasonable”, and are good, if not excellent.

71. None of the foregoing diminishes the seriousness of the offence. However, the Applicant is not an appropriate vehicle for general deterrence. Nor, given the reason for the offending and the development of the Applicant thereafter, is there a need for specific deterrence.

72. The community can well understand why a person of 14 or 16, with the conditions suffered by the Applicant, should not be used as a means by which other persons can be deterred from committing like offences. Further, given the subsequent maturing of the Applicant, little gain is obtained by condign punishment.

73. Otherwise, I accept and apply the findings and conclusions of the sentencing judge below. I apply a 25% discount for the utilitarian value of the plea of guilty at the earliest possible opportunity and I also find special circumstances.

74. It is fairly clear that the Applicant will require an extended period in the community under supervision to enable the support of his parents, which is manifest, to achieve its potential.

75. The current circumstances of the offender are set out in the Affidavit of Zilla Gillies of 22 April 2020 and the Affidavit of the Applicant of 5 May 2020. The Applicant is currently housed in a segregated unit at Junee Correctional Centre and has limited access to work and course opportunities, which are the unfortunate results of his limited association status. Despite that, he has worked in the prison system, having worked originally as a cleaner and he is now employed as a librarian in the prison library.

76. The Applicant has commenced a TAFE certificate course but has the usual limitations in terms of access to a computer that apply in prisons. The Applicant has his previous plumbing apprenticeship available to him if and when he is released.

77. The Applicant has the support of his family, which was noted by the sentencing judge. He expresses remorse as to the offending that occurred and his desire to be “able to live a normal life”. The Applicant was not cross-examined on his Affidavit.

78. I have had regard to the schedule of cases provided and the statistics. The statistics are less than useful because of the small number of cases, but it is clear, for the sexual intercourse offence, when imposed upon a juvenile offender, less than half of the cases result in full-time imprisonment. Of those sentences that are for a full-time custodial sentence, 60% of them are up to and including 2½ years’ imprisonment and 80% of them are up to and including 4½ years’ imprisonment for the section 66A offence.

79. The schedule of judgments is more useful. In GBB v R,[30] the appellant was sentenced for two offences, under s 66A of the Crimes Act, to a total term of 2 years and 1 month with a non-parole period of 1 year and 2 weeks. This was a case involving penile/vaginal intercourse and both offences occurred on the same night with the appellant’s half-sister, aged four. The appellant was just under 17 years of age at the time.

    30. [2019] NSWCCA 296.

80. In R v AA [31] , the appellant was sentenced for five offences including two counts of aggravated indecent assault and three counts of sexual intercourse with a person under 10 years of age and was sentenced taking into account three Form 1 offences. The victims were aged between five and eight years and the sentences for the s 66A offences were between 4 years and 5 years and 2 months. The appellant was aged between 15 and 19 years at the time of the offending, which included penile/vaginal intercourse.

    31. [2017] NSWCCA 84.

81. The sentence, imposed by the Court of Criminal Appeal in BM v R [32] , was for 3 counts of aggravated indecent assault[33] and one count of sexual intercourse with a child under 10 years. [34] The offences attracted an aggregate sentence of 18 months’ imprisonment, which took account of an indicative sentence for the s 66A offence of 14 months’ imprisonment.

    32. [2019] NSWCCA 223.

    33. A contravention of s 61M(2) of the Crimes Act 1900 (NSW).

    34. Section 66A of the Crimes Act 1900 (NSW).

82. In BM v R [35] , the victim was 4 or 5 years of age; the appellant was just under 14 years’ old; and the intercourse, which occurred while the appellant and the victim were hiding under bedding, involved the insertion of a lollipop into the victim’s vagina and the rubbing of the vagina with both hands. The other offences involved kissing and lifting the victim by the buttocks. The insertion of the lollipop involved the infliction of some pain.

    35. Op. cit.

67. The offence in BM v R occurred in the victim’s home and the appellant, similar to these proceedings, suffered ADHD, as well as a learning disorder. The sentence also reflected a 25% discount for the early plea.

68. It is unnecessary to summarise the other judgments or sentences in the Applicant’s counsel’s submissions. They deal with other proceedings and offences, some more serious and some less so, with different subjective factors.

69. The use of statistics can be a self-fulfilling limit on the exercise of discretion. Even previous judgments, if taken to dictate the bounds of sentence to be imposed, can be misleading.

70. Consistency in sentencing is obtained by the consistent application of sentencing principles. [36] Further, the pattern of past sentencing is not synonymous with the range of sentences available,[37] but, as the accumulated wisdom of sentencing judges and appellate courts, is of considerable significance as guidance to be used as a “yardstick against which to examine a proposed sentence”. [38]

    36. Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49].

    37. Ibid at [54]-[55], citing with approval Simpson J (as her Honour then was) in DPP v De La Rosa (2010) 79 NSWLR 1; 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194 at [303]-[305]; and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [95].

    38. Per Simpson J in De La Rosa at [304], cited with authority in Hili and Jones v The Queen, ibid.

71. As earlier stated, the maximum sentence for the Sequence 2 offence, namely, the production of child-abuse material, which occurred over the period 16 October 2016 to 9 December 2016, is 10 years’ imprisonment. The maximum sentence for Sequence 6, sexual intercourse with a child under 10 years, which was committed on 1 May 2016, is life imprisonment. Those maxima are set for worst cases and, relevantly, include adult offenders. Further the Sequence 2 offence is to take account of an offence of a similar kind, committed on 8 February 2017, as a Form 1 notified offence.

72. I would indicate a starting point for the offence of producing child-abuse material, taking into account the offence on the Form 1, of 3 years’ imprisonment.

73. Applying the 25% discount for the utilitarian value of the plea of guilty at the earliest possible opportunity, the indicative sentence for the contravention of s 91H(2) of the Crimes Act [39] is 2 years and 3 months, with a non-parole period of 1 year and 4 months.

    39. The offence of producing child abuse material.

74. For the sexual intercourse offence, I would start with a head sentence of 5 years and, again, reduce the sentence by 25% for the utilitarian value of the plea of guilty at the earliest possible opportunity, resulting in an indicative sentence of 3 years and 9 months’ imprisonment and I indicate that would involve a non-parole period of 2 years and 2 months’ imprisonment.

75. Having indicated those sentences and applying the principles of totality, as well as the need of the Applicant for an extended period on parole, I would propose an aggregate sentence of 4 years and 9 months’ imprisonment, with a non-parole period of 2 years and 9 months’ imprisonment.

76. As earlier stated, the use of statistics can be a self-fulfilling limitation. Nor does the pattern of sentencing in previous cases determine the range of sentences that are available to a sentencing judge. The sentence now imposed is, given the comparison with the conduct that was the subject of sentence in the other proceedings and the very different subjective circumstances, at or above the general pattern.

77. Since the drafting of the foregoing reasons, I have had the benefit of reading, in draft, the reasons for judgment of Simpson AJA and Bellew J, with each of which I agree. I would, in particular, emphasise the comment of Simpson AJA, at [9] above, that this is an exceptional case, which should not be taken as permitting the setting of any benchmark for any other sentence.

78. For all of the foregoing reasons, I propose that the Court make the following orders:

1. Leave to appeal be granted;

2. Sentence imposed by the District Court on LS on 1 March 2019 be quashed;

3. LS be sentenced to an aggregate sentence of 4 years and 9 months’ imprisonment, commencing 18 August 2017 and concluding 17 May 2022, with a non-parole period of 2 years and 9 months’ imprisonment, concluding 17 May 2020;

4. Pursuant to the terms of s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court varies the sentence imposed upon LS by the Local Court of New South Wales at Wagga Wagga on 30 March 2020 for assault law officer (not police officer) so as to commence on 18 December 2019 and conclude on 17 June 2020.

5. The Applicant is first eligible for release on parole on 17 June 2020.

95. BELLEW J: I have had the advantage of reading in draft the judgment of Rothman J. I am grateful to his Honour for his summary of the facts of the offending, and the applicant's subjective case.

96. As his Honour has pointed out, the applicant was 16 years of age at the time of the offending. The fact of the applicant's age directly engaged the principles applicable to the sentencing of young offenders. A number of those principles were set out by McClellan CJ at CL in KT v R,[40] including the following:

    40. (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] – [26].

1. considerations of general deterrence and principles of retribution are, in most cases of sentencing young offenders, 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; [41]

   41. At [22].

2. 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; [42]

   42. At [23].

3. 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; [43]

4. 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 and there remains a significant public interest in deterring antisocial conduct; [44]

5. 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 a crime of considerable gravity; [45]

6. in determining whether a young offender has engaged in adult behaviour, the Court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. 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; [46] and

7. the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A child offender of almost 18 years of age cannot expect to be treated substantially differently from an offender who is just over 18 years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth. [47]

   43. At [23].

   44. At [24].

   45. At [25].

   46. At [25].

   47. At [26].

97. In the first of his reports of 18 February 2018, Dr Lennings expressly addressed the issue of the applicant's immaturity, and its connection with his offending. Firstly, he said:[48]

This chat group were able to capitalise on [the applicant’s] young age, sensitivities and need for social validation and groomed him into providing the provision of child abuse material.

48. At [52].

98. He went onto say:[49]

It seems that in the couple of years prior to the offence [the applicant] began a process of maturation and started to have some capacity to reflect on and to make moral judgments about the nature of his behaviour. However this was not sufficient to overcome his fascination with material and his need for validation from the deviant online community.

49. At [53].

99. He then said:[50]

In considering [the applicant's] future risk he has had a long-term sexually deviant interest. He has engaged in the creation and dissemination of child abuse material. … However on my view it appears likely that it was a developmental phase that he has now leaving [sic] behind.

50. At [55].

100. In his second report, Dr Lennings was asked to comment about the circumstances in which the applicant was arrested for a breach of his bail. He adhered to the views he had previously expressed and said:[51]

I continue to believe his prior behaviour was a developmental phase that he has now left behind albeit with some struggle to adapt following the arrest, which is to be expected given his diagnostic status and youth.

51. At [4].

101. Dr Lennings gave evidence before the sentencing judge and confirmed his views about the link between the applicant's lack of maturity and his offending. In particular he said: [52]

In his particular instance there was a strong developmental element to his behaviour, yes, and his development has moved on. That's how I perceive the situation.

52. T5.27 – T5.29.

102. In cross-examination, Dr Lennings was asked about the circumstances of the applicant’s arrest whilst on bail. [53] He confirmed his view that those circumstances demonstrated that the applicant was a person who “essentially wanted validation”. [54] When asked whether the circumstances surrounding the arrest caused him to “pause” in respect of his view that the applicant’s offending coincided with a developmental phase, Dr Lennings said: [55]

No, I think that it is totally explicable in terms of the nature of his autistic spectrum disorder, that this is a person who has difficulty in generating real time, real face to face relationships, seeking some kind of online validation. It’s totally consistent with my view of him.

53. Commencing at T9.18.

54. T9.26.

55. T9.38 – T9.41.

103. These considerations were of considerable significance in the determination of an appropriate sentence. The observations of Dr Lennings support a conclusion that the applicant's emotional and/or psychological immaturity contributed to his offending in a significant way. There was certainly no suggestion that the applicant acted like an adult. On the contrary, the opinion of Dr Lennings, which the sentencing judge appears to accept, was that the applicant sought validation from others with whom he was associating and in that context committed the offences. Necessarily, the fact of the applicant’s immaturity, and its direct connection to his offending, reduced his criminality.

104. The sentencing judge made reference to relevant provisions of the Children (Criminal Proceedings) Act 1987 (NSW), and in particular to s 6. [56] Her Honour then cited the decision in KT before stating: [57]

An offender’s youth will not automatically lead to a reduction in sentence and that [sic] the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation.

56. At ROS 3.

57. At ROS 4.

105. Whilst that statement was, in itself, correct, there was no detailed reference to any of the other principles to which McClellan CJ at CL referred, some of which had specific application to the present case. The application of those principles is not, in my view, reflected in the sentence which was imposed.

106. I agree with the orders proposed by Rothman J.

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Endnotes

Decision last updated: 10 June 2020