R v AK

[2023] NSWDC 402

District Court

New South Wales

Medium Neutral Citation:

R v AK [2023] NSWDC 402

Hearing dates:

15 September 2023

Date of orders:

22 September 2023

Decision date:

22 September 2023

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   The offender, having been found guilty of Counts 1, 2, 3 and 4 on the indictment is convicted of those offences.

(2)   I impose an aggregate sentence of imprisonment for 4 years 6 months from 23 April 2023 and to expire on 22 October 2027.

(3)   I impose a non-parole period of 2 years 4 months from 23 April 2023 and expiring on 22 August 2025.

(4)   The earliest date the offender is eligible to be released to parole is 22 August 2025.

Catchwords:

CRIME - sexual intercourse with child under 10 years - indecent assault person under 16 years - findings of fact for sentencing – young offender – immaturity - offender with hearing impairment and speech delay - objective seriousness – finding of special circumstances – no prior criminal history

Legislation Cited:

Children (Criminal Proceedings) Act 1987, s 6

Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 25AA, 53A, 54D(3)

Crimes Act 1900, ss 66A, 61M

Cases Cited:

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

Clarke v R [2023] NSWCCA 170

Corby v R [2010] NSWCCA 146

Cowan v R [2015] NSWCCA 118

DPP v Burton [2020] NSWCCA 54

Howard v R [2019] NSWCCA 109

JA v R [2021] NSWCCA 10

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Mayall, David Graham v R [2010] NSWCCA 37

McLaren v R [2012] NSWCCA 284

R v BJW (2000) 112 A Crim R 1

R v JR [2022] NSWDC 618

R v McQueeney [2005] NSWCCA 168

R v MJR (2002) 54 NSWLR 368

R v Olbrich (1999) 199 CLR 270

R v Quinlin [2021] NSWCCA 284

R v Storey [1998] 1 VR 359

R vTauok (1992) 65 A Crim R 387

R v Tepania [2018] NSWCCA 247

R v Voss [2003] NSWCCA 182

R v Webster, unreported NSW CCA (15 July 1991)

RP v the Queen (2016) 259 CLR 641; [2016] HCA 53

S2 & Ors v R (2005) 158 A Crim R 93; [2005] NSWCCA 397

Sarhene v R [2022] NSWCCA 79

Tepania v R [2018] NSWCCA 247

Tsokos unrep. NSWCCA 16.June.1995.

Uddin v R [2020] NSWCCA 115

Yardley v Betts (1979) 22 SASR 108

Yildiz v R [2020] NSWCCA 69

Category:

Sentence

Parties:

Rex (Crown)
AK (Offender)

Representation:

Counsel:
Mr Bhutani (Offender)

Solicitors:
Office of the Department of Public Prosecutions (NSW) (Crown)
KPT Defence Lawyers (Offender)

File Number(s):

2020/00278775

Publication restriction:

There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants.

Judgment

Remarks on sentence

1. The offender is to be sentenced having been found guilty by a jury verdict for the following offences: –

1. Count 1 - sexual intercourse with child under 10 years in contravention of s 66A(1) of the Crimes Act 1900.

2. Count 2 - sexual intercourse with a child under 10 years in contravention of section of s 66A(1) of the Crimes Act 1900.

3. Count 3 - attempt indecent assault person under 16 years in contravention of section 61M(2) of the Crimes Act 1900 (with s 344 of the Crimes Act 1900).

4. Count 4 - indecent assault person under 16 years in contravention of s 61M(2) of the Crimes Act 1900.

2. Count 1 carries a maximum penalty of 25 years given the time at which the offence occurred. The standard non-parole period does not apply as the offender was under the age of 18 at the time of the offence: s 54D(3) Crimes (Sentencing Procedure) Act 1999 (CSPA). Count 2 carries a maximum penalty of life imprisonment although the standard non-parole period is inapplicable given the offender's age at the time and commission of the offence. The maximum penalty for Counts 1 and 2 are an indication of their seriousness and acts as a sentencing guidepost or reference point.

3. The maximum penalty for Counts 3 and 4 is 10 years. The standard non-parole period of 8 years is inapplicable to Count 3 given the offender's age at the time of offending although is applicable in respect to Count 4. The penalty of 10 years is also an indication of their seriousness, although to a lesser degree than Counts 1 and 2. The maximum penalty for Counts 3 and 4 (including the standard non-parole period for these Counts) acts as a sentencing guidepost or reference point.

Findings of fact for sentencing

4. In making relevant findings of fact for the purposes of sentencing I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the offender are to be considered on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [281]; R v Storey [1998] 1 VR 359 at [369].

5. The Crown prepared a document setting out proposed facts to be found on sentence consistent with the jury’s verdicts. The offender conceded that those facts were indeed consistent with the verdicts.

6. The offender was born on 21 July 1998 and is the paternal uncle of the complainants AK (born 22 April 2011) and OK (born 17 July 2012). As at 2015, the complainants resided with their parents at a unit in Smithfield.

Count 1 – Sexual intercourse with person under the age of 10 years

7. On one occasion in 2015 the offender (then aged 16 or 17) was sleeping over at the unit in Smithfield. It was agreed that he would stay in the complainants’ shared bedroom. Whilst the complainants were playing in that bedroom the offender entered and approached AK. Having stood him up, the offender pulled AK’s pants down and inserted earphones inside his anus and started playing music with the earphones vibrating. AK subsequently disclosed what had occurred to his mother.

Count 2- Sexual intercourse with a child under the age of 10 years

8. In February 2016 the complainants accompanied their parents to an aunties home in South Granville where the offender was also present. Located at that residence was an outdoor toilet approximately 1 – 2 metres from a table where various members of the family were sharing a meal. Sometime during the day AK told his father that he needed to go to the toilet. His father told the offender to go with AK and the two entered the toilet together. Whilst inside, the offender stood in front of AK, pulled down his pants and lifted him by his waist, placing AK's penis in his mouth.

9. AK's mother asked his father where AK was, and she was advised that AK was in the bathroom. She approached the door and found it to be locked. The complainant’s mother commenced knocking on the door and screaming. After a minute or two, the door was opened, and the complainant's mother grabbed the complainant's hand and took him outside before asking what had happened. Later that night AK informed his mother that the offender had “put his mouth on my bubble".

Count 3- Attempt indecent assault person under 16 years

10. A few days after the events the subject of Count 2 the complainant's accompanied their parents to another relative’s home in Greystanes. The offender was residing at that property at the time. Whilst the two complainants were in the offender’s bedroom, the offender attempted to remove OK’s pants. As he did so, OK started kicking him away with both feet and accidentally hit his head on the window located near the offender's bed. Having heard a loud bang coming from the offender’s room, the complainant’s mother entered the room and observed OK standing with his pants down and trying to pull them up. When she asked the offender why OK’s pants were down, the offender responded that he was just fixing them for him. When asked what the offender had done OK said that the offender had been trying to pull his pants down to touch his bum when he hit the window.

11. The jury found the offender not guilty of the primary offence although found the offender guilty of the statutory alternative of attempt.

Count 4- Indecent assault person under 16 years of age

12. On an occasion in 2018 the complainants, accompanied by their parents, attended another relative’s residence in Merrylands. At the time the offender was residing at that premises in a room adjacent to the living room. Whilst in the living room AK heard the offender say, “I have a surprise for you". AK entered the offenders’ room and saw him lying on his side on the bed looking at him. AK approached the offender who touched AK's penis over his clothing with his right hand. The offender told AK “don't tell your dad". AK then left the room and re-entered the living room. AK later told his mother what had occurred.

13. In June 2020 the complainants’ mother attended Green Valley Police Station in the company of AK and OK and made a complaint in relation to these allegations. OK told the police “my uncle tried to pull my pants down, but I kicked him away and got away. He told me not to tell my dad". AK told police that the offender had “put earphones up my bum and played music" as well as touching his “rude part" on another occasion. On 29 June 2020 electronically recorded statements were obtained from both complainants. On 25 September 2020 the offender was arrested and declined to participate in the electronically recorded interview.

Impact on the victims

14. In determining an appropriate sentence, it is necessary to recognise the harm done to the victim of the crime: s 3A CSPA. More relevantly, when sentencing an offender for a child sexual offence, the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing: s 25AA CSPA. The statutory recognition for harm inflicted on children by reason of the offending is consistent with frequent statements of principle often repeated in the New South Wales Court of Criminal Appeal: R v BJW (2000) 112 A Crim R 1; R v MJR (2002) 54 NSWLR 368. Whilst there are no victim impact statements from either of the complainants, in passing sentence, account will be taken of the impact on both victims who were aged between four and seven at the time of the offending.

Subjective material

Affidavit of Amneah

15. Amneah is the offender’s older sister. She notes that the offender is the youngest of seven children with a significant age gap between siblings. The difference in age between the offender and his oldest sibling is 25 years.

16. The offender was born in Lebanon, moving to Australia with the rest of his family when he was very young. The family initially lived with an aunty in Guildford. Amneah recalled that from a young age the offender had a speech delay and impaired hearing. The speech impediment caused him to mispronounce words and stutter. The difficulties with communication at times caused him to be misunderstood.

17. The offender initially attended primary school in Sydney where he was required to wear a hearing aid. In about 2005 he returned to Lebanon with his parents, before returning to Australia in 2011, where he lived with Amneah and her young family. The offender returned to Lebanon with his parents in 2013 where they remained for a period of approximately two years. The offender struggled attending school in Lebanon as his first language was English. Ultimately, the offender returned to Australia with the complainants’ parents in 2015. The offender commenced year 11 at Granville Boys High School and completed his Higher School Certificate the following year. He also completed a Certificate II in Construction Pathways whilst at school.

18. Amneah always shared a very close bond with the offender as they were closest in age amongst their siblings. She noted that she had always seen the offender as her “little brother" and “he has acted much in this way". Amneah stated that she felt sorry for the offender as his life was unsettled. He had been forced to move around throughout his life and never really established a stable home for himself.

19. She referred to the offender’s arrest in September 2020 at the age of 22 and him remaining in custody for some weeks before being released on bail. She spoke of her mother's poor health and the attempts by her siblings to keep the offender’s arrest from her. In February 2021 the offender's parents returned to Australia and have remained supportive of the offender.

20. Amneah noted that the offender was granted bail with strict conditions until he was remanded in custody following the guilty verdicts in May 2023. She referred to the restrictive bail conditions whilst at liberty. Amneah noted that following release on bail, the offender was notably depressed and was flat and upset most of the time. He was subsequently referred by his general practitioner to a psychologist who regularly reviewed him.

21. Amneah noted that the offender, since returning to custody, has primarily been housed at the Goulburn Correctional Centre within a protective area. The offender explained that the conditions at Goulburn were poor. There was no shower in his cell and there are occasions where he had not cleaned himself for days. Further he had often been kept in his cell for days and was not allowed into the yard area mainly due to staff shortages. The offender told Amneah that he was struggling on his return to prison. He had real fears for his safety, feeling worried and paranoid about being harmed by other inmates. He did not sleep most nights and was extremely anxious, worrying about what might happen to him. Ultimately, Amneah indicated that the offender had the full support of his family who would support him on his release.

Affidavit of Omar

22. Omar similarly refers to the offender having a speech impairment from a young age, including struggling with longer words which caused a delay. He also experienced a hearing impairment requiring him to wear a hearing aid at an early age. A combination of the hearing impairment and speech delay caused the offender difficulty during his developmental years. He was conscious of his speech delay and at times would appear anxious in social environments, which had caused ongoing disadvantage throughout his life.

23. He referred to the offender returning to Lebanon with his parents in 2013. Due to his inability to speak Arabic the offender was placed with students two years below his age. He struggled during this time and felt he did not fit in in his country of birth. Despite Omar's attempts to support the offender whilst living overseas, he was aware, through conversations, that the offender was lonely. He noted that whilst in Lebanon the offender helped his parents as best he could in circumstances where they lived in villages and typically off the land. The offender would assist his parents in the garden and prepare the food each day.

24. In 2014 Omar decided, in consultation with his wife, that he would bring the offender back to Australia to live with him, which he did for approximately three years. In 2017 Omar's wife became pregnant and accordingly arrangements were made for the offender to live with his sister where he remained until his arrest in September 2020. The offender completed his schooling at Granville Boys High School. Omar would regularly pick him up from school and on occasions observed other students to be calling the offender names and he was subject to bullying. Omar observed the offender to be down and upset after school.

25. Omar noted that whilst living with him the offender contributed positively to the household. He would help with household chores and would always be respectful. During that time the offender spent considerable periods with Omar. They became heavily involved in community groups including organisations assisting with homeless. He regularly participated in charity workouts, raising funds for different charities whilst attending a local gym.

26. Omar referred to the offender being displaced and suffering instability throughout his life. He was forced to move between Australia and Lebanon as the youngest of seven children.

27. Omar confirmed that he remained strictly compliant with his bail conditions over a period of almost 3 years. However, the restrictive bail conditions caused the offender to be isolated and depressed resulting in the need to be regularly treated by a psychologist. Omar was the acceptable person for the purposes of bail, and the offender was required to live with him. Unfortunately, Omar had an injury to his foot requiring surgery. Whilst recovering from surgery he was not able to accompany the offender to leave home in accordance with the bail conditions. Accordingly during this period he spent most of his time at home alone. The bail conditions were later varied to allow the offender to leave home in the company of two other siblings. Omar indicated that he would continue to support the offender throughout his life as would his siblings.

Medical evidence

28. A medical certificate completed for Centrelink purposes in December 2022 confirmed a diagnosis of speech and hearing impairment since birth causing difficulty in communication. A diagnosis of anxiety and depression since early childhood was also confirmed. Further, a mental health plan issued in May 2022 confirmed that the offender suffered from depression, anxiety and delayed development arising from impaired hearing and speech delay.

Submissions

Crown submissions

29. The Crown noted that in assessing objective seriousness it was necessary for the court to consider the circumstances in which the offences took place, over what period, the nature of the intercourse and the significant age difference between the complainant and the offender (demonstrating exploitation of the complainant’s youth and naivety). Further, the fact that the assaults appear to have been for a relatively short duration did not reduce the objective seriousness.

30. In respect to Count 1, the relevant factors in assessing objective seriousness included the age of the complainant (aged 4) which was towards the mid-range of the age threshold for the offence. Further the difference in age between the complainant and the offender (13 years). The Crown also noted that the offending occurred in the complainants’ home and contended that the offender was occupying a position of trust in relation to the complainant. In all the circumstances the Crown contended that the offence fell within the mid-range of objective seriousness.

31. In respect to Count 2, the complainant was aged four or five years, towards the mid-range of the threshold for the offence. The Crown again observed the age difference between the complainant and the offender, and that the nature of the offending involved a degree of physical contact. The Crown again contended that the offender was occupying a position of trust. Ultimately the offence fell within the mid-range of objective seriousness.

32. In respect to Count 3, the Crown observed the principles applicable to sentencing for an attempted offence, and in particular the interrelationship between the seriousness of the intended consequences and the real prospects of achieving them. In this respect the Crown observed that the offending involved the offender pulling the complainant's pants down before being interrupted. It was noted that the degree of physical contact was an important aspect of the assessment of the objective seriousness of the offences. Given the physical contact involved the offender touching the complainant in the area of his pants whilst trying to pull them down, the Crown conceded that was a less serious example of the type of conduct that this offence may involve. However, the Crown noted that the relative short duration of offending which constituted the offence did not mitigate the offending conduct overall, citing Howie J (with whom James and Davies JJ agreed) in Mayall, David Graham v R [2010] NSWCCA 37 at [44]. The Crown again contended that the offending involved an abuse of position of trust. It was submitted that the Count fell below the mid-range of objective seriousness.

33. In respect to Count 4, whilst the conduct was serious, it was not as serious as other examples given the breadth of conduct encompassed by the offence. Again, it was submitted that the offender occupied a position of trust. Ultimately it was contended that it was towards the lower end of the mid-range.

29. In oral submissions Counsel maintained that abuse of trust was a feature of each offence, although to varying degrees given the different circumstances of each offence. The Crown contended that the bail conditions were not so onerous as to amount to quasi-custody and accordingly no account would be taken of this period.

30. The Crown reminded the court of s 25AA of the CSPA which required the court to have regard to the trauma of sexual abuse on children as understood at the time of sentencing.

31. Given the offender was under the age of 18 at the time of commission of the first three offences it was necessary to have regard to s 6 of the Children (Criminal Proceedings) Act 1987. It was necessary to give sufficient weight to the offenders age and immaturity in assessing moral culpability and objective gravity: R v Voss [2003] NSWCCA 182. However, this must be balanced against an offender who conducted himself as an adult or engaged in adult behaviour.

32. The Crown referred to several authorities relating to the sentencing of young offenders and that weight would need to be given to the offender's age and maturity at the time of the offences. The Crown referred to the principles of totality when sentencing an offender for more than one offence.

33. It was conceded that a finding of special circumstances was open given the offender's age, first time in custody and the need for rehabilitation. The Crown submitted that the principal of general deterrence was fully engaged, citing several authorities relating to assaults committed on younger children and the need for sentences reflecting general deterrence. Further it was submitted that specific deterrence was also engaged, and that the relevant considerations of s 3A of CSPA, including the offender being adequately punished and accountable for his actions, were relevant.

34. Ultimately the Crown contended that the s 5 threshold had been crossed for each offence. It referred to the courts power to make ancillary orders for the protection of the complainants against whom the offences were committed irrespective of any interim orders in place.

Offender’s submissions

40. The offender noted that the sentencing exercise was one in which considerations of sentencing pulled in different directions: R v Webster, unreported NSW CCA (15 July 1991).

41. In assessing objective seriousness, whilst acknowledging that sexual assault was a serious crime, the level of seriousness depended upon the type of forced intercourse, the degree of violence, the physical hurt inflicted, the humiliation and other circumstances.

42. In the present case the offender's youth was of significant relevance in respect moral culpability and accordingly objective seriousness, citing R v Tepania [2018] NSWCCA 247, where it was noted that the offender was aged between 16 and 20 at the time of commission of the offences. The offender noted the remarks of Adams J in MS2 & Ors v R (2005) 158 A Crim R 93; [2005] NSWCCA 397 that immaturity was relevant to culpability or criminality in that children did not have adult value judgements, adult experience, adult appreciation of consequences or adult understanding of criminal culpability.

43. The offender disputed the Crown's contention that the offences involved abuse of a position of trust, citing the judgment of the Court of Criminal Appeal (Basten JA, Rothman and Cavanagh JJ) in DPP v Burton [2020] NSWCCA 54 at [31] that the position of trust was not a precise term and would cover relationships involving an obligation of care and protection, compared with relationships involving authority over another. Counsel highlighted in that judgement the reference to the fact that a position of trust could arise between an uncle and a niece, although it would depend upon the circumstances attending to the particular relationship rather than the simple fact of it. It was contended that the relationship between the offender and the complainants was one which arose in circumstances where the victims had many aunties and uncles and the offender moved to Australia from Lebanon in 2015. In oral submissions Counsel conceded that the position of trust needed to be considered, not only in the context of the relationship, but the circumstances of the offending.

44. In respect Count 1 it was contended that the offence fell at the lower end of objective seriousness for the following reasons: –

1. The conduct should be characterised as “sexual experimentation” or “sexual play” as those expressions were used in RP v the Queen (2016) 259 CLR 641; [2016] HCA 53 at [33]. It was contended, by reference to Uddin v R [2020] NSWCCA 115, that an appropriate description of the offence involved sexual touching without it necessarily being sexual activity.

2. The degree of physical contact between the complainant and the offender was limited and that the penetration did not give rise to a significant risk of injury or disease.

3. There was no coercion, threats or violence used.

4. The offending was of short duration.

45. It was conceded that an aggravating feature was that the offending occurred in the complainants’ home.

46. In respect to Count 2, it was contended that the offence fell just below the mid-range of objective seriousness considering the absence of coercion, threats or violence, the act of giving fellatio did not carry with it significant risk of injury or disease in comparison to other sexual acts, and that the victim fell in the midpoint of ages captured by the provision.

47. In respect to Count 3, Counsel noted the observations of Badgery-Parker J in R v Taouk (1992) A 65 Crim R 387 that it was necessary to consider that the charge was one of attempt only, and that the substantive offence was not completed. Further it was necessary to consider the chances that the attempt, if not interrupted, would have succeeded. It was contended that this offence fell within the lower end of objective seriousness given the physical offence was touching the victim’s pants whilst trying to pull them down and was momentary or fleeting in nature.

48. In respect to Count 4 it was contended that this fell within the lower end of objective seriousness given the physical contact was touching the complainant’s penis on the outside of his clothing and was momentary or fleeting in nature.

49. In respect to each of the offences it was contended that a common mitigating factor was that the offence was not planned.

50. It was contended that the offender’s age had a significant role to play in sentence, noting that the offender was aged between 16 and 17 for the first count, 17 for the next two counts and 19 – 20 for the final count.

51. The offender referred to the judgment of Davies J in JA v R [2021] NSWCCA 10 where his Honour noted that the principles applicable to sentencing a juvenile applied whatever the seriousness of the crime. Further it was necessary to consider whether, and to what extent, both general and specific deterrence should be given much, if any, weight. Particularly in respect of specific deterrence it was relevant that the offender’s criminal history showed no further offending of a sexual nature. Counsel then referred to the summary of principles applicable to youthful offenders helpfully set out by Hamill J in Sarhene v R [2022] NSWCCA 79.

52. Counsel also referred to the judgment of Fullerton J in Howard v R [2019] NSWCCA 109 at [14]: –

“…in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person’s immaturity and a compromised capacity for mature decision-making”

53. Counsel contended that aside from the offenders chronological age, there were features which pointed to the offender’s immaturity and subsequent isolation from his peers: –

1. The offender being the youngest in the family.

2. The offender’s hearing impairment and the subsequent speech delay resulting in anxiety in social situations.

3. The offender’s return to Lebanon at the age of 15 and being placed in a class with students two years younger than him due to speech delay.

4. Being the victim of bullying at school.

5. The conduct itself with respect to Count 1.

54. The offender’s youth was a feature of delay. The offender cited Davies J in JA that an acceptable approach in sentencing an adult for offences committed as a juvenile would be for the sentencing judge to put himself or herself in the position of sentencing the offender at the time perhaps 18 months after the offence was committed, and where no other offences had been committed in the interim. Whilst accepting that matters such as the need for the offender to live at home and attend school no longer have relevance, it does not mean that an offender receives a heavier sentence if sentenced as an adult rather than as a juvenile.

55. Counsel referred to other mitigating factors including the lack of criminal antecedents and the offender’s good character. Counsel referred to the offender’s hearing impairment with subsequent speech delay difficulties and referred to the Bar Book Project on hearing impediment, and in particular the causal relationship between hearing loss and criminal activity resulting from an impact on individual’s education, their language and behaviour development.

56. It was contended that the Court would take into account the offender’s hearing impediment in the following ways: –

1. Generally, as part of the offender’s subjective mix.

2. Recognising the role hearing loss may have played in stunting his development and maturity.

3. Recognising the additional difficulties he may suffer in custody as a result of the hearing impediment.

57. Whilst it was acknowledged that there was no evidence of remorse, and that this will be an issue in considering the offender’s prospects of rehabilitation or likelihood of reoffending, it was contended that insight and remorse is only one factor in considering prospects of rehabilitation. Counsel pointed to the offenders young age leading to a greater capacity for reform, lack of criminal antecedents, academic achievements, community involvement, demonstrated long compliance with bail conditions, lack of misconduct whilst in custody and the family support, as being relevant factors in considering prospects of rehabilitation.

58. It was contended that the offender’s bail conditions were such that amounted to quasi-custody and an allowance of 50% of the time on bail would be applied in backdating any term of imprisonment.

59. Whilst acknowledging that deterrence had a role to play in the sentencing exercise, it was submitted that it would be tempered given the circumstances of the offender. It was noted, by reference to relevant published studies, that longer sentences could increase the risk of recidivism, particularly amongst young offenders. This was in circumstances where jails were “criminal learning environments", lengthy terms of incarceration had a labelling effect where offenders see themselves as a criminal, and that custodial environments were ill-equipped to address the underlying cause of criminality.

60. Counsel referred to the judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 that the protection of the community was also contributed to by the successful rehabilitation of offenders, and that this should not be lost sight of in the sentencing process.

61. It was submitted that the standard non-parole period for Count 4 was of limited value considering it was intended for matters within the mid-range, and that the circumstances such as the actus reus, mens rea mental state were all relevant when considering where the offence fell on the spectrum of offending.

62. Whilst it is conceded that the s 5 threshold had been crossed in respect count 2, it was contended in respect of the remaining counts that they could be dealt with in a manner other than full-time imprisonment. A finding of special circumstances would be made given the offenders age and vulnerability, it was the offenders first term of imprisonment, the additional onerousness of custody given the offenders hearing impairment and his prospect of rehabilitation.

63. In oral submissions counsel emphasised the importance of the offender’s age in the sentencing process. Counsel reinforced the written submissions in respect to the objective seriousness of each of the offences. In respect to backdating arising from quasi custody, it was contended that 50% of the time whilst on bail would be appropriate.

Consideration

The offender’s youth and general immaturity

64. Whilst an offenders subjective circumstances are relevant when determining moral culpability, factors such as an offenders youth, immaturity and/or mental state might be relevant in the assessment of objective seriousness: McLaren v R [2012] NSWCCA 284 at [29] (per McCallum J with whom McClellan CJ and Johnson J agreed); Cowan v R [2015] NSWCCA 118 at [61] – [62] (per Bellew J with whom Bathurst CJ and Simpson J agreed); Tepania v R [2018] NSWCCA 247 at [97] – [101] (per Johnson J with whom Payne JA and Simpson AJA agreed).

65. The offender was aged 16 to 17 at the time of Count 1, aged 17 at the time of Counts 2 and 3, and aged 19 to 20 at the time of Count 4. The fact that an offender is approaching the age of 18 at the time of commission of the offences is not an indicator of maturity as such, and indeed reaching such a milestone does not equate to fully developed emotional maturity and impulse control: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [5] (Hodgson JA); [108] (Johnson J); Yildiz v R [2020] NSWCCA 69 at [60] – [61] (Rothman J with whom Simpson AJA and N Adams J agreed).

66. In addition to the offender’s youth, the evidence establishes that the offender suffered a speech and hearing impairment from birth as well as anxiety and depression from early childhood. The hearing and speech impediment caused the offender to be anxious in social situations. It also resulted in the offender in his high school years being placed in a class with students two years younger than his expected school level. The offender moved between Australia and Lebanon in his formative years, and I accept the evidence of his older brother that he suffered instability throughout his life. I further accept the evidence of the offender’s sister that his life was very much unsettled and that he never really established a home for himself. He acted in way younger than his actual age.

67. I am satisfied that the offender’s youth and immaturity, exacerbated by the consequences of his impairments, and his dysfunctional upbringing, were factors in the offending, particularly Counts 1, 2 and 3. Each offence involved spontaneous acts which were in no way planned. The description provided by Fullerton J in Howard at [14] aptly describes the offending as being “unpremeditated” criminal acts that were “likely to be responsive to the interplay of [the offender’s] immaturity and a compromised capacity for mature decision making”. Such a finding is relevant in the consideration of objective seriousness.

68. In respect to Count 1, the complainant was aged four at the time of the offending, being towards the midpoint of the age threshold for the offence. The age gap between the complainant and the offender was about 13 years. The conduct of the offender establishing the offence involved the insertion of earphones into the complainant's anus, this behaviour constituting the offence of sexual intercourse. Whilst the conduct was over a relatively brief period, it still involved a significant physical act.

69. The offender’s characterisation of the offending as a form of sexual experimentation or sexual play, or the mere touching of the complainant's sexual organ, diminishes the significance of the offender’s conduct. The offence is aggravated by the fact that it took place in the complainant's home where he was entitled to feel safe and secure.

70. I do not accept the Crown's contention that at the time the offence was committed the offender was occupying a position of trust in relation to the complainant. Whilst a position of trust could arise from such a relationship, much will depend upon the circumstances attending that relationship: Burton at [31] (Basten JA, Rothman and Cavanagh JJ).

71. The Crown contends that the position of trust arises from the fact the offending occurred in a bedroom made available to him by the complainant's parents. However, there are other relevant factors in determining whether the offender abused a position of trust. As previously observed, the offender was aged between 16 and 17 and had only recently returned from Lebanon where he had been residing for some years. Further the evidence established that the complainant had many aunties and uncles. There is no evidence that at the time of the offence the offender had been given the responsibility to care for or otherwise supervise the complainants. He merely happened to be in the same room as the complainants in circumstances where he was staying in the home at the time. I am not satisfied that the offending occurred in circumstances where the offender abused a position of trust.

72. In all the circumstances, I find that the offending falls somewhere between the low to mid-range of objective seriousness for offences of this type.

73. In respect to Count 2, the victim was aged four or five which again falls towards the midpoint of the age threshold for the offence. As with Count 1, the age gap was approximately 13 years. The conduct involved the offender forcing the complainant to put his penis in the offender’s mouth, which is not an insignificant physical act, albeit over a relatively short period of time.

74. While I accept there was no coercion, threats or violence used, this is of limited relevance given the circumstances in which the offence was committed: Clarke v R [2023] NSWCCA 170 at [71] (per McNaughton J with whom Beech-Jones CJ at CL and R A Hulme AJ agreed). I accept the Crown's submission that the offending involved the offender abusing a position of trust. The complainant was placed in the care of the offender, albeit for a brief period, to accompany the complainant to the toilet. Such a request clearly reflected the trust which the complainant's father placed in the offender.

75. In all the circumstances, I am satisfied that the offence falls within the mid-range of objective seriousness for offences of this type.

76. In respect to Count 3 it is necessary to take into account that the substantive offence was not completed, and to consider the chances or prospect that the substantive offence would have been committed if not interrupted: R vTauok (1992) 65 A Crim R 387; R v McQueeney [2005] NSWCCA 168 at [25] - [26] (Latham J with whom Howie J and Grove J agreed). The degree of physical contact was relatively limited (Corby v R [2010] NSWCCA 146) and overall is a less serious example of the type of conduct contemplated by this offence. I am not satisfied that the circumstances of the offence constituted an abuse of trust. There is no suggestion that the complainant was placed into the care of the offender or had otherwise assumed the role of supervising the complainant in a family gathering situation. The offending arose in circumstances where the offender and complainant were part of a large family gathering.

77. I am satisfied that this offence falls within the low range of objective seriousness for offences of this type.

78. In respect to Count 4, the offence was an indecent assault upon a person under the age of 16 years. It involved the offender touching the complainant's penis over his clothing with his right hand. I accept the offender's submission that the offending was momentary or fleeting in nature. I do not accept that the offending involved an abuse of trust. According to the agreed facts the family were seated together in the living room watching television when the offender called the complainant into his room. Again, the circumstances did not involve the offender assuming any role of a supervisor or carer for the complainant at the time the offending occurred. However, the offender was several years older than the previous counts. I am satisfied in all the circumstances the offence falls somewhere between the lower and mid range of objective seriousness for an offence of this type.

64. Reference has already been made to the relevance of youth, immaturity and/or mental health in assessing the objective seriousness of the offences. However, these factors also have a role to play in the overall sentencing process. Hamill J in Sarhene helpfully articulated the relevant principles by reference to the decided cases at [25]: –

“Without meaning to do a disservice to those who have written about this important aspect of sentencing in the past, I will attempt to summarise some of the relevant principles:

There is no doubt that the youth of an offender is a relevant factor, or a “most significant factor” in assessing what sentence should be imposed.

Considerations of general deterrence may be less significant when sentencing a juvenile or young offender.

Rather, emphasis should be placed on the “the need to provide an opportunity for rehabilitation”.

While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; “emotional maturity and impulse control develop progressively during adolescence and early adulthood.”

Where “immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”

An offender’s youth and immaturity is also relevant to an assessment of their moral culpability.

In some cases, where the young offender is said to have committed an “adult crime” or “conducted him or herself as an adult might”, the significance of youth, or the weight to be afforded to it, has been held to be less.

However, courts should not “be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult.” (citations omitted)

80. The offender was charged with the offences approximately five years after the first offence was committed. The delay, at least in respect to the first three offences related to the offender’s youth. Whilst the statutory principles contained in s 6 of the Children (Criminal Proceedings) Act 1987 are of limited relevance when sentencing the offender as an adult, that does not translate into the offender receiving a heavier sentence by reason of that fact: JA at [61] (Davies J with whom Basten JA and Johnson J agreed).

81. Given my findings as to the offenders’ youth, immaturity, disrupted upbringing in his formative years, and impact arising from the offenders’ impairments, general deterrence has a lesser role to play in the sentencing exercise despite the line of authority that sentencing for child sexual assault requires proper consideration of general deterrence. Rehabilitation must play a significant role in the sentencing of the offender: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL with whom Price J agreed). Whilst I accept the offender’s denial of the offences (as he is entitled to do) demonstrates a lack of remorse, prospects of rehabilitation are still of relevant in the sentencing process, even more so in respect to a young offender: KT at [22].

82. The offender has no other criminal history. He was awarded the Higher School Certificate in the face of significant adversity and was actively involved in the community with his brother prior to his incarceration. The offender has complied with the very strict bail conditions and has otherwise been of good behaviour whilst in custody. The affidavits of the offender’s siblings attest to the considerable family support he will receive upon his release. In all the circumstances, including taking into account the offender’s relative youth, and despite the lack of remorse, I am satisfied that the offender has good prospects of rehabilitation upon his release.

83. The offender contends that the strict bail conditions to which he was subjected amounts to quasi-custody and that the ultimate sentence should be adjusted to reflect this fact. On 13 October 2020 the offender was released on bail on conditions that he was to report to police three days a week, was to live at a nominated premises in Guildford with the offender’s brother, not to be absent from that address unless in the immediate company of his brother, and to present himself to police at the front door for the purposes of monitoring or enforcing compliance with his bail. Further, the offender was to only use one mobile device to be provided to and approved by the officer in charge. Additionally, he was to submit to a breath test or drug test for the purposes of monitoring or enforcing compliance with the drug and alcohol abstinence condition.

84. It is the unchallenged evidence of the offender’s brother that when released on bail the offender’s brother had suffered an injury requiring surgery. He was recovering from these injuries and accordingly was unable to accompany the offender. This resulted in the offender spending most of his brother’s recovery period home alone. However, the bail conditions were later varied to allow the offender to leave home in the company of an additional two siblings. It is the evidence of the offender’s brother that his bail conditions over the three-year period resulted in the offender becoming isolated and depressed requiring medical support. It is apparent that the offender’s bail conditions were restrictive which was further impacted by the offender’s brother’s incapacity for a period. Mindful of the observations of the New South Wales Court of Appeal in R v Quinlin [2021] NSWCCA 284, while satisfied that for the period of the brother’s incapacity prior to the bail variation the offender’s bail constituted quasi-custody, this was for a relatively short period of time given the overall period upon which the offender was on bail. In determining an appropriate sentence, I have taken into account this limited period of quasi-custody, although it is not of such significance that mandates backdating any term of imprisonment.

85. In considering an appropriate sentence, the offender contends that the unavailability of an intensive corrections order should not necessarily result in a more significant penalty being imposed. The court was referred to the decision of Lerve DCJ in R v JR [2022] NSWDC 618 who cited with authority the unreported decision in Tsokos unrep. NSWCCA 16 June 1995. (RS) Hulme J (Gleeson CJ & Powell AJ agreeing). Tsokos is authority for the proposition that in such circumstances the correct approach is to choose from the available options the sentence which is most appropriate.

86. In respect to Count 1, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Whilst the offender makes no such concession in respect to this Count, having considered all relevant matters, including the objective seriousness of the offence and the maximum penalty, that the s 5 threshold has indeed been crossed. Similarly, I am satisfied having considered all possible alternatives, that no penalty other than imprisonment is appropriate in respect to Count 2.

87. In so finding, whilst I have taken into account the offender’s youth, immaturity (exacerbated by his underlying impairments), his good character, his good prospects of rehabilitation, and the circumstances of the offending, I cannot lose sight of the fact that both offences are serious, reflected in the maximum penalties, and that the offences fall just below or within the mid-range of objective seriousness.

88. In respect to Count 3 (attempt indecent assault), taking into account the nature of the offence, the offender's youth, the subjective features to which reference has been made, the good prospects of rehabilitation and the fact that the offences fall within the lower range of objective seriousness, I am not satisfied the s 5 threshold has been crossed.

89. In respect to Count 4 the offender was several years older than for the prior offences. Whilst cognisant of the relevant authorities to which reference has been made as to the age of maturity, it is a point of differentiation from the remaining offences. The relevant non parole period of 8 years is applicable, unlike the other offences. I have found the objective seriousness is higher for this offence than Count 3. Whilst finely balanced, considering all the matters to which reference has been made, I am satisfied that the s. 5 threshold has been crossed and no sentence other than imprisonment is appropriate.

90. Accordingly, in respect to Counts 1, 2 and 3, these are appropriate matters for the court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made had separate sentences being imposed.

91. In respect to Count 1, the appropriate sentence is 2 years 6 months. In respect to Count 2, the appropriate sentence is 3 years. In respect to Count 4, the appropriate sentence is 12 months with a non-parole period of 6 months.

92. Taking into account the need for some accumulation between sentences, a total aggregate sentence of 4 years 6 months is appropriate.

93. A finding of special circumstances ought to be made for the following reasons:

1. The offender is of a relatively young age.

2. It is the offenders first term of imprisonment.

3. The offender’s incarceration will be more onerous given the impairments to which reference has been made including a hearing impairment, anxiety, and depression. Treatment and support in respect to these conditions will be more limited whilst incarcerated.

4. The offender’s good prospects of rehabilitation for the reasons traversed.

94. The special circumstances are such that a significant variation of the statutory ratio is appropriate. In all circumstances, I fix a non-parole period of 2 years 4 months.

95. In respect to Count 3, it is necessary to consider sentencing alternatives given the finding that the s 5 threshold has not been crossed.

96. A Community Corrections Order in accordance with s 8 of the CSPA is likely to be for a period during which the offender will be serving his term of imprisonment for the remaining offences. Hamill J observed in Sarhene at [35] in such a circumstance, alternatives include exercising powers under the CSPA such as the power to convict without penalty in accordance with s 10A or impose a short term of imprisonment to be served concurrently. Having given the matter careful consideration, I impose a term of imprisonment of 6 months in respect to Count 3, to be served wholly concurrently with the sentence imposed in respect to Counts 1, 2 and 4.

97. The offender was arrested and charged on 25 September 2020. He was refused bail and remained in custody until 13 October 2020, resulting in 19 days in custody before being granted bail. Following a guilty verdict on 12 May 2023, the offender was again remanded in custody where he remains as at the date of sentence. Accordingly, the sentence has been backdated to reflect the 152 days the offender has spent in pre-sentence custody.

Orders

1. The offender, having been found guilty of Counts 1, 2, 3 and 4 on the indictment is convicted of those offences.

2. The indicative sentences are set out above. I impose an aggregate sentence of imprisonment for 4 years 6 months from 23 April 2023 and to expire on 22 October 2027.

3. I impose a non-parole period of 2 years 4 months from 23 April 2023 and expiring on 22 August 2025.

4. The earliest date the offender is eligible to be released to parole is 22 August 2025.

Decision last updated: 29 September 2023