R v AD

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v AD [2005] NSWCCA 208

FILE NUMBER(S):
2005/501

HEARING DATE(S): 03/06/2005

JUDGMENT DATE: 09/06/2005

PARTIES:
Regina v AD

JUDGMENT OF: Studdert J Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1144

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
Crown - W. Dawe QC
Applicant - J. Manuell

SOLICITORS:
S. Kavanagh - Crown
S.E. O'Connor - Applicant

CATCHWORDS:
Criminal Law - Sentencing - juvenile offender charged with serious sexual assault offence - whether sentencing discretion miscarried by failure to refer to s 6 of Children (Criminal Proceedings) Act - whether sentence manifestly excessive having regard to the age of the offender.

LEGISLATION CITED:
Crimes Act 1900 - s 61J, 61M
Children (Criminal Proceedings) Act 1987 (NSW) - ss 3, 6, 17, Div 4 Part 3, s 18(1A), 33(1)(g)
Crimes (Sentencing Procedure) Act 1999

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/501 CCAP
STUDDERT J
HOWIE J
LATHAM J
THURSDAY 9 JUNE 2005

R v AD

Judgment

STUDDERT J: I agree with Howie J.
HOWIE J: The applicant, a juvenile, was sentenced in the District Court for an offence contrary to s 61J of the Crimes Act. That is an offence of aggravated sexual assault for which the maximum penalty prescribed is imprisonment for 20 years. Judge Ainslie-Wallace (the Judge) imposed a sentence upon the applicant made up of a non-parole period of 2 years and 6 months with a parole period of 1 year 9 months. The Judge directed that the sentence be served in a juvenile detention centre. The applicant is eligible to be released to parole on 7 September 2006. He seeks leave to appeal against that sentence.
The applicant was committed for trial to the District Court on a charge of aggravated sexual assault contrary to s 61J of the Crimes Act. Section 61J provides:
(1)          Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2)         In this section, circumstances of aggravation means circumstances in which:
(a)          at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b)          at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c)          the alleged offender is in the company of another person or persons, or
(d)          the alleged victim is under the age of 16 years, or
(e)          the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f)           the alleged victim has a serious physical disability, or
(g)          the alleged victim has a serious intellectual disability.
The committal charge identified the circumstance of aggravation as an allegation that at the time of the sexual assault the applicant was in company of another person: see s 61J(2)(c). As charged the offence was a “serious children’s indictable offence” for the purposes of the provisions of the Children (Criminal Proceedings) Act (the Act). By s 3 of the Act a “serious children’s indictable offence” means (amongst other things):
(c) an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) …..of the Crimes Act 1900…….,
The consequence of the fact that the offence charged was a “serious children’s indictable offence” was that, by reason of s 17 of the Act, the applicant was to be dealt with according to law and not according to the provisions in Division 4 of Part 3 of the Act and within the limited range of penalties provided by that Division.
However, on 8 March 2004 the applicant was arraigned before Blanch CJ on a reformulated charge alleging that the circumstance of aggravation relied upon by the Crown was that the complainant was under the age of 16 years: see s 61J(2)(d). The applicant then pleaded guilty to that charge. The new charge did not fall within the definition of a “serious children’s indictable offence” so that there was no longer any statutory requirement that the applicant be dealt with at law. Section 18 of the Act applied and the Court had a discretion as to whether to deal with the applicant at law or in accordance with Division 4 of Part 3, that discretion being exercised taking into account the matters mentioned in s 18(1A) of the Act.
It should be clear by the sentence that her Honour imposed upon the applicant that she dealt with him at law and not under Division 4 of Part 3 of the Act. Had the Judge dealt with the applicant under the latter provisions, the most serious sentence that could have been imposed upon the applicant was a control order of not more than 2 years under s 33(1)(g) of the Act. It is a ground of appeal that her Honour misunderstood the discretion that she had in dealing with the applicant by reason of the change to the nature of the charge and the provisions of the Act. It is also asserted that the sentence was manifestly excessive, that her Honour failed to take into account s 6 of the Act and that she erred in the way that she dealt with the applicant’s plea of guilty.
In sentencing the applicant for the offence to which he pleaded guilty, the Judge was also asked to take into account a further matter under the provisions of the Crimes (Sentencing Procedure) Act. This was an offence of aggravated indecent assault contrary to s 61M of the Crimes Act. That charge involved the same complainant and arose from the facts and circumstances surrounding the offence charged in the indictment.
The facts were placed before the Judge by way of an agreed statement. They can be summarised as follows. The applicant and the complainant had been in a relationship of boyfriend and girlfriend for a period of approximately three months at the time of the offence. There is no suggestion that there had been any sexual contact between them other than kissing and minor petting. The offence took place on 16 June 2003. Both the applicant and the complainant were then aged 15. The complainant had invited the applicant to her house after school. The applicant came accompanied by a friend, named Mohammed, whom the victim had not known previously. Mohammed was aged 22.
The three were sitting in the complainant’s bedroom when Mohammed offered the complainant $100 to have sex with him. She refused. After the applicant urged her to accept the offer, the complainant asked Mohammed to leave the room so she could speak to the applicant. After he did so, the applicant pulled the complainant on to the bed and kissed her. The complainant did not object to this but asked the applicant why he urged her to have sex with Mohammed.
Mohammed then returned to the room. The applicant stood beside the complainant exposed himself and asked her to suck his penis. The complainant refused, pushing the applicant away, and then left the room. The complainant went outside and smoked a cigarette and the applicant joined her. They both then returned to the bedroom where Mohammed was lying on the bed. The applicant kissed the complainant and fondled her breasts without her objecting. Mohammed also fondled her breast under her bra. She gave him a “dirty look” indicating her displeasure with his behaviour.
The applicant and Mohammed urged the complainant to take off her clothes but she refused. The applicant pulled off her jumper and unclipped her bra exposing her breasts. The applicant and Mohammed commented about her breasts and the complainant felt embarrassed and uncomfortable. The applicant then undid the complainant’s slacks although she objected and struggled to stop him. He also pulled down her underpants although she tried to keep them up. The applicant kissed her neck and, although she did not object to this, she felt embarrassed because of the presence of Mohammed. The applicant then put his hands inside the complainant’s panties and inserted his finger into her vagina. The complainant said, “No” and pulled his hand away. She then left the bedroom. This was the act of intercourse relied upon for the charge on the indictment.
The complainant went into the bathroom and was followed by the applicant. He commenced to kiss her neck and lips and rubbed his genital area against her. The complainant was crying and pushed the applicant away. He asked her what was wrong, but she refused to answer and he left the room. This conduct gave rise to the offence taken into account on the Form 1. Mohammed came into the bathroom and asked the complainant what was wrong but she refused to answer. After he left, she locked the bathroom door and waited for the applicant and Mohammed to leave. The complainant immediately spoke to a number of her friends about the conduct of the applicant and the next day complained to her mother.
In an interview with police on 24 July 2003 the applicant denied that any sexual conduct occurred on that day and denied that he had a relationship with the complainant. He told police that the person he called Mohammed had left for Lebanon the next day and he could give no other information identifying him.
The applicant gave evidence before the Judge on 10 June 2004 identifying the person with him during the incident as his cousin and indicated that he was prepared to give evidence against him. He gave an account that was substantially the same as that given by the complainant and he admitted having sexually assaulted her by inserting his finger into her vagina at the same time as Mohammed was touching her breasts. He made a statement to the police on 24 June 2004, during an adjournment of the sentencing proceedings, in accordance with his evidence and implicating his cousin. He also gave an undertaking to give evidence against his cousin.
The applicant was aged 16 at the time of sentence and had no prior criminal record. He had been charged with other offences, one in relation to damaging the victim’s home and had indicated an intention to plead guilty to that charge.
There was in evidence a report from a Juvenile Justice officer, Ms Edwards. That report indicated that the applicant had been involved in a sex offender’s programme while in custody. However, it also alleged that the applicant had spoken of the complainant in what her Honour described as “demeaning and offensive terms”. Ms Edwards formed the view that the applicant held “extreme and disrespectful views” of women, particularly non-Moslem women. She believed that the applicant’s attitude was reinforced by attitudes held by his parents. In light of these matters Ms Edwards thought the likelihood of re-offending was relatively high.
The Judge accepted the evidence and assessments of Ms Edwards who gave oral evidence. She found that on the basis of the evidence before the court, including that of the applicant himself, that he had no insight into his conduct nor did he have any real remorse or contrition. That was a finding that was well open to her Honour and was not challenged on the hearing of the appeal.
There was evidence from a psychologist to the effect that so far as his IQ was concerned, the applicant was at the bottom of the normal range just above the point where a diagnosis would be made of developmental disability. The applicant had deficits in his verbal and other skills. However, there was no submission made to her Honour that on the basis of this material the applicant should be found to be less culpable for his conduct or treated in some way other than was required by the seriousness of the conduct before the court.
As to the offence itself her Honour stated:
This is an offence of considerable objective seriousness. There was a measure of planning and it was committed in company. I have regard to the statement of the victim as to how the assaults have affected her and it is clear that they have had a significant effect on her and continue to do so. I take into account that the offender is young and was only 15 at the time of the offence.
The Judge recognised, in accordance with the decision of R v Way (2004) 60 NSWLR 168, that the standard non-parole period of 10 years did not apply because of the plea of guilty but that, although the offence was not one that in any event fell within the middle range of objective seriousness, “the length of the standard non-parole period provides some guidance in terms of gravity with which this type of offence is regarded by the legislators”.
Her Honour found that there were special circumstances justifying a greater ratio between the non-parole period and the balance of the term of the sentence by reason of the applicant’s youth, his need for supervision and rehabilitation, and the fact that it was his first time in custody. The ratio between the non-parole period and the total term is about 58 per cent.
It is appropriate to deal with the third ground of appeal first. It contends that the Judge erred in her characterisation of the offence as being a “serious children’s indictable offence” and thereby limiting the exercise of the discretion available to her. As I have already indicated the charge to which the applicant pleaded guilty did not fall within the definition of the term as set out in s 3 of the Act and it was not obligatory for her Honour to deal with the applicant at law. To some extent the change to the wording of the charge was a formal although not insignificant matter. The facts made it clear, as did the evidence of the applicant, that the applicant was in the company of his cousin Mohammed at the time of the commission of the offence. Although the only circumstance of aggravation alleged in the charge was that the complainant was under the age of 15 years, the Judge was entitled, if not required, to take into account any other matter of aggravation present. This was made clear by the decision of this Court in R v Li (NSWCCA, unreported 9/7/97). There is only one offence provided under s 61J and the Crown has only to allege and prove one circumstance of aggravation in order to make out the offence. There is no infringement of the De Simoni principle in the court taking into account other matters of aggravation because the offender is not being sentenced for a more serious offence than that charged.
It is not difficult to understand why the draftsperson excluded a charge relying upon the circumstance of aggravation found in s 61J(2)(d) from the definition of a “serious children’s indictable offence” from s 3. In a case involving a juvenile offender, the fact that the complainant is under 15 does not carry with it the same sense of opprobrium, as that fact would do in the case of an adult. The legislature did not believe that it was such an aggravating factor that it should result in the offender being deprived of the advantages of being sentenced under the provisions of Division 4 if that were otherwise an appropriate way of dealing with the offence and the offender. But that policy is not inconsistent with the sentencing judge, when dealing with the offender either at law or under Division 4, taking into account other aggravating factors, which had they been alleged in the charge, would have had the consequence that the offender could have only been dealt with at law.
It seems clear that her Honour was aware of the consequence of the change from that for which the applicant was committed for trial. Both the defence and the Crown addressed the Judge at length on the issue of whether the applicant should be dealt with at law or under Division 4. However, her Honour’s remarks contain the following statement:
“Although counsel for the offender applied for this matter to be referred to the Children’s court pursuant to s 20 of the Children (Crimes) Sentencing Procedure Act (sic), it is excluded from being remitted, it being a “serious children’s indictable offence” and it is a matter that is appropriate to be dealt with in this court”.
Yet later in the remarks, the Judge stated:
A submission was made on behalf of the offender that the most appropriate way to sentence him was as a juvenile rather than at law, the benefit for him being then the maximum sentence to be imposed is one or two years. The Crown opposed that course and argued that the seriousness of the offence was such that it would not be appropriate to sentence the offender other than at law. I accept that submission.
A total sentence of two years or less would not recognise the objective seriousness of the crime now nor would it allow for the rehabilitation and strict supervision of the offender which he so clearly needs.
Although the first passage quoted above seems to indicate that her Honour was at least confused about the applicability of the provisions of the Act, it is clear that any confusion that was present did not affect the exercise of her discretion. The second passage quoted accurately reflects the situation and there can be no criticism, and there is none, of her Honour’s determination to deal with the applicant at law. Quite the contrary, the written submissions filed on behalf of the applicant eschews any submission that her Honour erred in dealing with the applicant at law. There was no reasonable prospect of her Honour transferring the matter to the Children’s Court even if she had believed that she had the power to do so. It is impossible to see how any confusion or misapprehension her Honour might have had about the applicability of the provisions of the Act affected the sentence imposed upon the applicant. The third ground is not made out.
The second ground contends that her Honour failed to take into account s 6 of the Act. That section is as follows:
Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect to children, shall have 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.
There is no reference to the section or its terms in the sentencing remarks but such a failure does not itself amount to an error of law: R v MHH [2001] NSWCCA 161. The section contains a statement of principles that before the enactment of the provision were to be found generally in decided cases and under the common law when sentencing young offenders: R v SDM [2001] NSWCCA 158. Without seeking to detract from their importance, they are hardly controversial nor did they have such peculiar or particular relevance to the sentencing exercise before her Honour that the failure to refer to them might have made a significant difference to the ultimate sentence to be imposed upon the applicant. Counsel who appeared for the applicant before her Honour recognised that the most favourable disposition was a control order under s 33(2)(g) and so it was taken for granted in the proceedings before her Honour that the applicant was going to spend some period in custody. This may perhaps account for the fact that there was no reference made to s 6 during the course of the addresses. There was never any suggestion by her Honour that the applicant was not going to require assistance and guidance, quite the contrary. Even if it is assumed that her Honour did not specifically turn her mind to the terms of s 6 because neither she nor counsel referred to them, I cannot see how that failure could have affected her Honour’s determination of the appropriate sentence.

In any event the application of s 6 depends upon the nature of the offence charged as well as upon the age and circumstances of the offender: R v Voss [2003] NSWCCA 182. Less effect can be given to the principles in the section where the offence is one of substantial seriousness and where the offender acted as an adult. In my opinion the principles in s 6 had less of a role to play in the determination of the sentence, notwithstanding the age of the applicant, by reason of the seriousness of the offence and his attitude to the offending.
It was submitted under this ground that the Judge failed to adequately take into account the applicant’s “immaturity and his intellectual deficits”. Such a failure, if it occurred, would have as much to do with a failure to apply normal sentencing principles as with a failure to take into account the principles in s 6. The argument is really embraced in the assertion in ground one that the sentence was manifestly excessive because the argument is really that her Honour must not have given sufficient weight to this particular matter because of the length of the sentence imposed. However, I can see little significance in the present case that the applicant was as a result of psychological testing found to have marked deficiencies in his intellectual or verbal skills.
The simple fact is that the applicant determined to sexually assault the complainant even though he knew she was not consenting and at a time when she was being sexually molested by his companion. The difficulty in the task that confronted the sentencing judge was that, although the applicant was a child, he had committed a serious offence, he had shown no genuine remorse and, because of his attitude to women, he was at real risk of re-offending. I do not understand how the applicant’s intellectual deficits could have been given much significance in the determination of the appropriate sentence in this particular case. There was no suggestion that the applicant did not have a full appreciation of what he had done because of his poor intellectual functioning. His apparent failure to appreciate the moral and criminal significance of his conduct had nothing at all to do with any defect in his intellectual abilities. His intellectual disabilities did not otherwise appear to affect adversely his ability to function appropriately in the community. Of more relevance was the fact that his intellectual deficits may have made effective counselling more difficult because of his trouble in understanding what is put to him and expressing his thoughts on complex issues. The psychologist reported that his impulse control was poor, but this was hardly a finding that gave confidence to his prospects of successful rehabilitation.
Although counsel for the applicant relied heavily upon his immaturity arising from his age and otherwise, this was not in my view an offence arising from the applicant’s immaturity generally or in particular in respect of his attitude to women. This is notwithstanding that the Juvenile Justice officer acknowledged that the applicant might have been immature in many of his attitudes and beliefs about the needs and rights of others. But his attitude to women, and non-Moslem women in particular, does not appear to me to be a symptom of his immaturity. The immaturity of the applicant had little relevance, in my view, to an assessment of the proper punishment for the offence or his rehabilitation in respect of his attitude to women and the risk of re-offending that arose from that attitude.
It is asserted that the applicant’s rehabilitation would have been best conducted in the community. Reliance was placed upon references before the Judge as to the applicant’s general conduct and his efforts at obtaining and maintaining employment. But the applicant’s rehabilitation was more concerned with his attitude to women than his general attitude to the community. This aspect of his functioning was to be addressed by professional help through sex offender courses, anger management and general counselling. Of course I do not intend not to suggest that he had to receive a longer sentence in order to address his rehabilitation and there is no suggestion in her Honour’s remarks that she approached the sentencing task in this way.
Again these complaints really have little to do with whether the Judge failed to take into account the principles in s 6 but rather assert that the sentence imposed was so excessive that it indicates that her Honour was in error in the way she sought to address the various purposes of sentencing in this particular case taking into account the seriousness of the offence committed, the likelihood of re-offending and the fact that the applicant was aged 15 at the time of the offending.
Counsel for the applicant raised during oral submissions, although not in the written submissions filed, a complaint that her Honour erred in failing to take into account that, having regard to the offence as amended and to which the applicant pleaded guilty, the applicant would have been dealt with in the Children’s Court and not committed to trial in the District Court because of his age. The submission was that in the experience of counsel an offence falling under s 61J(d) would inevitably have been dealt with in the Children’s Court regardless of the seriousness of the actual facts of the offending having regard to the fact that the applicant was aged 15 at the time of offending. If this be correct, then it seems to me with respect, that those who would be responsible for making that decision are failing to take into account the provisions of s 18(1A) of the Act.
That section requires a court, when determining whether to proceed with the offender at law or under Division 4 of Part 3, to take into account, amongst other things, both “the seriousness of the indictable offence” and “the nature of the indictable offence” as well as “the age and maturity of the person at the time of the offence and at the time of sentencing”. A decision that any particular indictable offence, “not being a serious children’s indictable offence’’ is to be dealt with in the Children’s Court simply because of the age of the offender would be a breach of the mandatory requirement imposed by the Act to consider all the matters set out in the section when determining how the offender is to be dealt for the offence.
In my view this particular offence was so objectively serious that a proper application of s 18(1A) would have led to only one possible outcome: despite the applicant’s age, he was to be dealt with at law. As there was no proper basis for the applicant to have been dealt with in the Children’s Court, there was no basis for her Honour to take into account what sentence might have been imposed in the Children’s Court had he been dealt with in that jurisdiction.
Before dealing with the general complaint that the sentence was manifestly excessive, I should address the fourth ground of appeal that asserts that her Honour failed to give the applicant sufficient credit for his plea of guilty and offer of assistance. Her Honour stated:
In determining sentence I take into account the plea of guilty which, although could not be considered as being entered at the earliest possible time, has utilitarian value, not the least of which was sparing the victim [ ] the ordeal of giving evidence and being cross-examined on her complaint.
I propose to discount the sentence which I would otherwise have imposed and I also take into account the assistance which the offender is willing to give in the prosecution of his co-offender and propose to discount his sentence to reflect those matters by 40 per cent. Any greater discount would result in a sentence which is disproportionate to the gravity of the offence.
It is argued on behalf of the applicant that her Honour should have found that the plea of guilty was made at the first reasonable opportunity in light of the change of the charge by the Crown after the applicant had been committed for trial. Clearly the applicant withheld his plea of guilty until the Crown was prepared to amend the charge so that it was not caught by s 3 of the Act. That was a legitimate tactic and the plea came immediately the Crown reindicted him with the amended charge. Arguably, in those circumstances, the plea came at the first reasonable opportunity but it did not follow that the discount for the plea of guilty should have been at the highest rate. But whether the plea came at the first reasonable opportunity or not is of little significance in this case. Her Honour gave a discount of 40 per cent for both the plea of guilty and the offer of assistance. In my opinion that was a finding that was well open to her. There was no evidence that the offer of assistance would have any implication for the applicant’s custodial situation or that it put him or his family in any degree of threat. This ground of appeal also fails.
Her Honour indicated that before the application of the discount the appropriate starting sentence was one of 7 years imprisonment. The Judge came to this view taking into account, as she was required to do, that the standard non-parole period for the offence was one of 10 years. The 7 years, of course, represented the undiscounted head sentence and not the undiscounted non-parole period. As I have already indicated the offence was a serious one. Although it is relevant that the intercourse was digital penetration, that fact alone does not mean that the offence did not deserve a substantial period of imprisonment.
It seems to me that in the submissions filed for the applicant there is an undue emphasis on the nature of the intercourse and the prior relationship between the applicant and the complainant as matters reducing the seriousness of the applicant’s conduct. The fact is that the penetration of the complainant did not occur as a result of some over exuberant response by an immature youth in hot ardour. It was in reality an intentional act designed to humiliate and degrade the complainant in the presence of the applicant’s cousin in circumstances where the applicant had earlier urged her to have intercourse with the cousin notwithstanding her objections. Immediately before the act of intercourse the applicant had forcefully removed the complainant’s clothing against her will and in the presence of her cousin probably in order to arouse himself and his cousin and clearly in disregard of her feelings. It was a sexual assault in the true meaning of the term.
Reliance is placed upon the decision of this Court in R v Slack [2004] NSWCCA 128 as indicating that the starting sentence of 7 years would have been excessive even had the applicant been an adult having regard the nature of the offending and that encompassed within s 61J. That was a case where a friend of the complainant’s father entered her bedroom on two occasions and both times touched her in the area of the vagina penetrating her with two fingers. The complainant was aged 11 years. The offender was an adult with no prior offences and who had been a volunteer fireman. He was serving his sentence in protective custody. It was accepted that the degree of penetration was slight and both offences should be treated as part of a single act. The offence was committed in breach of trust.
This Court held that a sentence of 5 years was manifestly excessive having regard to the nature of the criminal conduct and the subjective circumstances of the offender. Grove J, who with Simpson J formed the majority of the Court, held that an appropriate sentence of three years imprisonment should be substituted. His Honour stated:
Whilst the crimes were far from trivial, I cannot conceive that on the facts, and having regard to the matters required to be taken into account in favour of the appellant, a head sentence of one quarter of the maximum (available for far more serious instances of sexual misconduct) could be appropriately proportionate in this case.
Two comments can be made about this decision. The first is that I believe the objective facts of the present matter are worst than those before the Court in Slack and the subjective features of that offender were probably more mitigating than are the applicant’s. The second is that the offence in Slack did not attract a consideration of the standard non-parole period provisions. As I have already indicated, the Judge in the present matter was obliged to have regard to the standard non-parole period of 10 years even though it was not applicable to the applicant’s case. In R v Pellew [2004] NSWCCA 434 it was made clear that the effect of the standard non-parole period will generally be to increase the level of sentencing for offences to which it applies. If the provisions prescribe a standard non-parole period of 10 years as against a maximum penalty of 20 years, as is the case with an offence under s 61J, it follows that the head sentence must exceed half the maximum penalty for the offence notwithstanding that the offence is one of only mid-range seriousness.
While I acknowledge that the starting sentence was a severe one, especially having regard to the applicant’s age, I am ultimately unpersuaded that it was not open to her Honour to determine that the undiscounted sentence should be 7 years. The nature of the offending was such that little objective mitigation arose from the fact that the applicant was only aged 15 and was the same age as the complainant. It was in a most serious category of an offence consisting of digital penetration. There was also some effect to be given to the matter on the Form 1, even though considered by itself it was not a particularly serious offence. The sentence to be imposed had to reflect specific as well as general deterrence given the applicant’s attitude and notwithstanding his lack of prior convictions. However, I do believe that the sentence was toward the top of the available range for an offence of its nature.
In my opinion the application for leave should be granted but the appeal dismissed.
LATHAM J: I agree with Howie J.

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LAST UPDATED: 09/06/2005

[2005] NSWCCA 208

9 June 2005