Police v MW

[2009] NSWLC 15

Local Court of New South Wales

CITATION:	Police V MW [2009] NSWLC 15
JURISDICTION:	Children's Court
PARTIES:	Police MW
FILE NUMBER:
PLACE OF HEARING:	Young Children's Court
DATE OF DECISION:	10/23/2009
MAGISTRATE:	Magistrate Dare
CATCHWORDS:	CRIMINAL LAW – Procedure – Juvenile – objective seriousness of offending – whether to be dealt with summarily or according to law – committed to District Court for sentence - principles applied
LEGISLATION CITED:	Children (Criminal Proceedings) Act, 1987. Ss. 18, 19, 31(5).Crimes Act, 1900. Ss. 61, 61I.Criminal Procedure Act, 1986.
CASES CITED:	JIW v Director of Public Prosecutions (NSW) [2005] NSWSC 760 MSS v The Queen (2005) 158 A Crim R 93 R v Adamson (2002) 132 A Crim R 511. Regina v AEM Snr, KEM and MM [2002] NSWCCA 58 R v Bus, (Unrep), NSWCCA, 3 November 1995 R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) R v GDP (1991) 53 A Crim R 112 R v Gulliford (2004) 148 A Crim R 558 R v Hearne (2001) 124 A Crim R 451 R v Hibberd[2009] NSWCCA 20 R v Hoang [2003] NSWCCA 380 R v King [2009] NSWCCA 117 R v KRG [2003] NSWSC 751 R v KT [2008] NSWCCAR v LC [2001] NSWCCA 175 R v Pham & Ly (1991) 55 A Crim R 128 R v Tran [1999] NSWCCA 109 R v TJP [1999] NSWCCA 408 R v Voss [2003] NSWCCA 182 R v Williscroft (1975) VR 292 R v WRK (1993) 32 NSWLR 447 TM v R [2008] NSWCCA 158
TEXTS CITED:
REPRESENTATION:	Sergeant D. Brand, Police Prosecutor, for the Informant. Mr D. Barron, Solicitor, Barronlaw, for the young person.
ORDERS:

JUDGMENT

Before the Court is MW, born on xx xxxx 1995, who is currently aged 14 years. On 14th October, 2009, he entered pleas of guilty to the following sequences –

1. “(For that he) on 3rd August, 2009, at Young in the State of New South Wales, did have sexual intercourse with RK without her consent and knowing she was not consenting thereto.”

2. “(For that he) on 3rd August, 2009 at Young in the State of New South Wales, did assault RK.”

Clearly, the name of the Young Offender cannot be published. I shall refer to the Complainant by the initials “RK” and direct she be not otherwise identified.

Division 3 of the Children (Criminal Proceedings) Act, 1987, sets out the procedure for the hearing of charges in the Children’s court. Section 31 provides, relevantly for present purposes –

(1) If a person is charged before the Children’s Court with an offence (whether indictable or otherwise) other than a serious children’s indictable offence, the proceedings for the offence shall be dealt with summarily .

(2) …

(3) …

(4) …

(5) Notwithstanding subsection (1):

(a) if a person is charged before the Children’s Court with an indictable offence, and

(b) if, at any stage of the proceedings, the person pleads guilty to the charge, and

(c) if the Children’s Court states that it is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in section 25), the charge may not properly be disposed of in a summary manner,

the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 as if the offence were a serious children’s indictable offence in respect of which the person had pleaded guilty as referred to in that section.

The present charges are not “serious children’s indictable offences”. Therefore, the charges are to be dealt with summarily in the Children’s Court subject to Section 31 (5). Were MW dealt with "according to law", he would be subject to the maximum penalty under the law, that is, imprisonment for fourteen years (Section 61I, Crimes Act 1900), and imprisonment for 2 years (Section 61, Crimes Act, 1900) although a Court imposing a custodial sentence may direct (in the case of a person less than 21 years) that the sentence be served in a detention centre rather than an adult prison (Section 19 of the Act). A child dealt with under Pt 3 Div 4 of the Act, on the other hand, would be subject to a significantly more benign regime where the maximum penalty is a control order (committing the person to the control of the Minister, usually in a detention centre) for a period not exceeding two years (Section 33(1)(g) of the Act). Accordingly, there are distinct advantages in being dealt with under Part 3 Division 4 of the Act, rather than "according to law".

I have come to the view having regard to all the evidence that it is inappropriate for the matters to be dealt with in the Children’s Court and they should be dealt with according to law. I set out my reasons.

Salient Facts.

In keeping with usual practice a factual outline is provided in a Facts Sheet. In the absence of any objection or correction I will proceed on that basis and use my own summary of the facts.

About 2.30pm on 3rd August, 2009, RK left her home to go for a walk and followed a route she walks a number of times a week about the same time of day. She took her pet dog along. She walked along Lynch Street, into Marina Street, into Main Street and then to Arbouretom Park which is a public area following the Burrangong Creek through the township of Young.

As she was walking she noticed what turned out to be the Offender walking from the car park at the rear of the Australian Hotel. He was wearing a school uniform. As she progressed on her walk it became apparent to her that she was being followed. The Offender came to her and asked for a cigarette. She said she did not have one and kept on walking.

As she walked on she caught sight of the Offender out of the corner of her left eye running towards her. She feared she was about to be robbed and gripped her iPod tightly. The Offender ran hard at her and crash-tackled her with such force that she fell to the ground. She finished lying flat on her back with the Offender on top of her. She could feel all of his weight pinning her to the ground. She attempted to struggle and gain leverage but could not move the Offender. She then felt the Offender’s right hand pushing against the outside of her tracksuit pants against her vagina. He pushed hard against the tracksuit pants and RK felt the Offender’s fingers enter her vagina. He forced his fingers in and out of her vagina on four occasions.

RK was screaming and struggling. A witness, Sewell, heard the screaming. Another witness, Everdell, saw what turned out to be the Offender’s school bag lying in the grass. Sewell yelled out towards the Offender and made his way toward RK. Everdell commenced to do the same. The Offender got off the complainant and stood up. She attempted to keep a hold of him by grabbing his shorts. The Offender then punched her to the right side of her face, causing her to release her grip. The Offender ran off and was pursued on foot by RK and Sewell but he evaded them. As it turned out, the Offender retrieved his school bag and returned to the nearby xxxx School where he waited until catching the school bus home to xxxx.

Police commenced immediate inquiries and ascertained from teaching staff that on 3rd August, 2009, the Offender had been wearing clothing described by RK and witnesses. They confirmed that at the relevant time the Offender was truanting from xxxx School. On 4th August, 2009, he was spoken to and provided accounts as to his whereabouts which were not true. He declined at the time to be interviewed. On 6th August, 2009, Police served on the Offender’s mother a summons for a Forensic Procedure on the Offender listed for hearing at Young on 12th August, 2009.

On 7th August, 2009, the Offender attended Young Police Station in his mother’s company and told Police he had committed the sexual assault upon RK. He was interviewed and I set out here some of the questions and answers:

Q. 41 OK. So what would you like to tell me?
A. On Monday the 3rd August, I seen this woman and I followed her for a bit. She walked past this man, said hello, and then a couple of minutes later I walked over to her and asked her if she had a cigarette. And then a couple of seconds later I ran at her, tackled her and then forced my four fingers into her vagina and then I’ve gotten off her and she grabbed my arm and then I got my arm loose and then the guy that she said hello (to) came running over and I started running away into the army trail to get my bag and then I headed up to the school.

Q. 132. All right. Now, you said that, well, can you describe to me again what you did with your right hand when you tackled the lady?
A. Tried to force it into her vagina.

Q. 133 Earlier on you said you did put it into her vagina. So, do you know if you did or not?
A. No, not really.

Q. 134 When you said you tried to force it into her vagina, what did you do?
A. I just put my hand down there and tried to get it in.

Q. 135 Down there?
A. On, on top of her pants, not in her pants.

Q. 327 Did you hit the lady at all?
A. As I was coming across her, I accidentally hit her in the face …
A. 329 My arms just gone out accidentally when I went to grab her arm, and I hit her in the mouth or something.

Q. 385 When you were going back to TAFE, what were you thinking?
A. That I’d just done something really stupid and I’m gunna get heaps big shit, heaps big trouble for it.

The Offender has no prior appearances before the Children’s Court, however, he is recorded as receiving cautions for damaging property and making a false representation resulting in a police investigation.

The Statutory Regime.

The presumption arising from Section 31(1), is that charges against children in respect of all but serious children's indictable offences will be dealt with in the Children's Court under Pt 3 Div 4. However, it is a rebuttal presumption. Two general propositions may be stated: see JIW v Director of Public Prosecutions (NSW) [2005] NSWSC 760 -

· First, offences vary in their nature and seriousness. An index of their seriousness is the maximum penalty prescribed. However, it is not the only index. For some offences, general deterrence will be of greater importance, often because of the widespread nature of the offence. The more serious the offence and the more important general deterrence, the more likely it is that it may be appropriate that the person charged should be dealt with according to law.

· Secondly, children brought before the Children's Court will obviously vary in age and maturity. The child's age and level of maturity may, in the context of the particular crime, suggest a nexus between the offending behaviour and the absence of maturity. The younger the child and the more immature, and the stronger the nexus between the child's immaturity and the crime charged, the more appropriate it may be that the offence should be dealt with in the Children's Court under Pt 3 Div 4 (cf R v KRG [2003] NSWSC 751 , per Whealy J, para [32]). The converse is true as a child approaches the age of 18 years and exhibits maturity.

Section 31 (5) provides no guidance as to the matters which a Court should take into account when determining that a charge may not properly be disposed of in a summary manner. Kirby J., in JIW v Director of Public Prosecutions (NSW) [2005] NSWSC 760 found a helpful comparison in Section 18 of the Children’s (Criminal Proceedings) Act, 1987, which, as his Honour pointed out, was from the perspective of the Supreme Court or District Court. The section applies where a child is charged with an indictable offence (not being a serious children's indictable offence) and either pleads guilty or is found guilty after trial. So it applies at the point where the Court is considering the penalty that should be imposed. That is the situation in which I find myself placed.

Section 18 (1A) provides that the Court must have regard to such matters as the seriousness and nature of the indictable offence concerned, the age and maturity of the person at the time of the offence and at the time of sentencing, as well as any other matter the Court considers relevant.

Sully J in R v WKR (1993) 32 NSWLR 447, when considering Section 18 of the Act, said this (Hunt CJ at CL and Campbell J generally agreeing): (at 459)

"The Criminal Proceedings Act does not itself provide any guidelines to which the discretion conferred by Section 18(1) is to be expressed. The Act, however, does lay down a series of principles to which a court exercising criminal jurisdiction with respect to children shall have regard."

His Honour added:

"These 'principles' strengthen me in the view to which I would have been inclined to come without such instruction, namely, that the threshold discretion which arises under Section 18 (1) of the Criminal Proceedings Act is to be exercised upon the basis of a fair and objective view of the true level of culpability - or, as I would prefer to say, of personal responsibility, - of the offender.

If, in a particular case, a crime has been committed, and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender's ‘... state of dependency and immaturity ...' then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law. The graver the crime the greater the warrant."

The seriousness and nature of the offence of Sexual Intercourse without Consent cannot be doubted. I have earlier set out the penalties provided by law. This was a case of digital penetration, however, there is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse: R v Hibberd[2009] NSWCCA 20 at [56]. Tobias JA in R v Hibberd said at [21] that the law should change:

"...the time has come for this Court to depart from any prima facie assumption, let alone general proposition, that digital sexual intercourse is to be regarded as generally less serious than penile sexual intercourse.

In R v King [2009] NSWCCA 117, the Court was dealing with a sexual assault upon a child. The court said at [36], in response to a submission that it was open for the trial judge to find that digital penetration was less serious than penile penetration and that this was a very significant fact in the assessment of the degree of criminality:

“What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range.”

The plea of guilty is an admission of the necessary proofs of the charge plus the necessary mental element. The Offender’s assertion that he “tried to force his fingers into the vagina” ought be afforded little weight in light of the plea entered. Insofar as the assertions might be called in aid by the Offender, Section 61P provides that an attempt to commit sexual intercourse without consent carries the same penalty as if the completed offence was committed: R v Gulliford (2004) 148 A Crim R 558. It applies to the provisions between Sections 61I and 61O.

Principles for Sentencing Juvenile Offenders.

Generally, the aspect of rehabilitation will be of much greater significance when sentencing juvenile offenders. However, the criminality and other aspects of the sentencing process cannot be overlooked, particularly in circumstances where the criminal offence under consideration is a serious one. Sully J. in Regina v WKR (1993) 32 NSWLR 447 at p. 465F:

“In my opinion, it needs to be said without apology or diffidence that there is a great deal wrong with such aberrant ‘standards of behaviour’ and that young boys (and girls), who think otherwise must understand that, should they act accordingly, they will be held accountable according to the law as set by parliament, that being a process which will normally entail a period of imprisonment.
In my opinion, cases such as the present one both entitle the court, and impose a duty on the court, to give such a warning in the hope of deterring other teenagers, especially very young teenagers, who might be tempted to offend in the way in which the present applicant has offended”.

Sully J. was, of course, dealing with offences of a different nature than that with which I am sentencing this young offender. However, in my view, as matters of general principle, his Honour’s remarks are equally applicable. Indeed, his observations are particularly apposite in the case with which I am now dealing.

McClellan CJ at CL in the more recent decision of Regina v KT [2008] NSWCCA reviewed the authorities relating to sentencing juveniles. At [22]-[26] his Honour set out in full Section 6 of the Act and continued -

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 Regina v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), Regina v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and Regina 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. (Regina 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]; MSS v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). [See also TM v Regina [2008] NSWCCA 158 per Hall J., [33] to [37] - age and immaturity of the offender is an important factor that determines the level of culpability associated with a serious offence where such immaturity was a significant contributing factor.]

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 Regina 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 i.e., 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 (Regina v Bus,(Unrep), NSWCCA, 3 November 1995, Hunt CJ at CL; Regina v Tran [1999] NSWCCA 109 at [9]-[10]; Regina v TJP [1999] NSWCCA 408 at [23]; Regina v LC [2001] NSWCCA 175 at [48]; Regina v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; Regina v Adamson (2002) 132 A Crim R 511 at [31]; Regina 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 (Regina 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 (Bus (supra),; Voss (supra) at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne (supra)at [27]).

In the matter presently under consideration, the Court is dealing with a young offender aged 14 years. I have earlier noted his lack of criminal antecedents. Clearly, rehabilitation remains a very important consideration in dealing with him. However, as the various authorities referred to by McClellan CJ at CL in KT disclose - given the seriousness of the offending and the adult-like quality of its execution - retribution and denunciation do not cease to be relevant considerations in the sentencing exercise. This matter did not include the use of a weapon. But it was not a spur-of-the-moment or opportunistic act. As I perceive it, there was a degree of planning or pre-meditation, with RK being watched and followed by the Offender over some distance before the attack upon her.

Juvenile Justice Report.

The Department of Juvenile Justice advised in a letter dated and received at the Registry that, “… as the substantive matter for sentence is a sexual offence, this service respectfully requests an adjournment of four (4) weeks to facilitate preparation of a Specialist Report for the Court.” Given the course I intend to take, the 4 week period will permit the Report to be prepared for the District Court.

Without any doubt, the proper penalty for the offences committed by the Offender is a period of detention. The Children’s Court is limited in its jurisdiction to a maximum of 2 years. In my view, a period of 2 years detention, however structured, fails to reflect the gravity of the Offender’s conduct and would be so far out of keeping with the community expectation (not to mention that of the Complainant) that offending of this kind requires the imposition of a salutary penalty. I am not able to structure a sentence providing for an appropriate non-parole period followed by a balance of term on parole supervision within the mandated 2 year period. That, it seems to me, is the purpose of Section 31 (5) (c) in facilitating the Children’s Court, in an appropriate case (of which this is one) to commit the Offender for sentence to the District Court which has no similar constraints as to penalty – save as to principles applicable in sentencing juvenile offenders.

MW, you are committed for sentence to the District Court next sitting at Wagga Wagga upon the charges of Sexual Intercourse without Consent and Assault to which you have pleaded guilty. Bail is formally refused.

I request the Registrar to notify the Department of Juvenile Justice Report to prepare a Specialist Report for the information and assistance of the District Court. I direct a copy of this Judgment to be included with the Court papers so as to acquaint the presiding Judge with my reasons for declining to deal with the matter in the Children’s Court.

Given the custodial situation of the Offender, I request the Listing Authorities in conjunction with the Office of the Director of Public Prosecutions to ensure, as a matter of priority, the Offender’s appearance before the next Sittings of the District Court at Wagga Wagga.

Peter S. Dare SC
Magistrate.
The Cootamundra Circuit.

Young Children’s Court.

23rd October, 2009.