R v Andrew Button (a pseudonym)

[2021] NSWDC 829

District Court

New South Wales

Medium Neutral Citation:

R v Andrew Button (a pseudonym) [2021] NSWDC 829

Hearing dates:

6 August 2021

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

At [117] – [125].

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10 — Offender 13 years of age — Delay — Rehabilitation — Sentencing young offender

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Cases Cited:

BM v R [2019] NSWCCA 223

El Cheikh v R [2016] NSWCCA 225

LS v R [2020] NSWCCA 12

Mill v The Queen (1988) 166 CLR 59

MS2 & Ors v Regina [2005] NSWCCA 397

Paul Campbell (a pseudonym) v R [2018] NSWCCA 87

R v AA [2017] NSWCCA 84

R v Campbell (a pseudonym) [2017] NSWDC 359

R v Cattell [2019] NSWCCA 297

R v DN [2019] NSWDC 536

R v DW (No 1) [2020] NSWDC 461

R v Elliott and Blessington [2006] NSWCCA 305

R v Ellis (1986) 6 NSWLR 603

R v KL [2020] NSWDC 409

R v Shore (1992) 66 A Crim R 37

R v Spiers [2008] NSWCCA 107

R v Tepania [2018] NSWCCA 247

R v Todd [1982] 2 NSWLR 517

RC v R [2020] NSWCCA 76

RP v R [2015] NSWCCA 215

Tepania v R [2018] NSWCCA 247

Why v R [2017] NSWCCA 101

Category:

Sentence

Parties:

Crown
Andrew Button (a pseudonym)

Representation:

Counsel:
Ms K Nightingale (Crown)
Ms C O’Neill (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2020/00270252

Publication restriction:

Non-publication order regarding the identity of the offender, victim and names of persons involved or connected with the factual background of the offending.

INDEX

BACKGROUND

SUBJECTIVE BACKGROUND

THE VICTIM

AGE OF THE VICTIM

CIRCUMSTANCES OF THE OFFENDING

DELAY

REHABILITATION

COVID-19

RELEVANT PRINCIPLES

COMPARATIVE CASES

DETERMINATION

SENTENCE

1. The offender who appears before me for sentence today is a juvenile. The victim in relation to the sexual offence for which he appears for sentence was a child of 5 years of age. Pursuant to the relevant statutory prohibitions, neither the names of the offender, nor the victim, nor any features which might tend to identify them, are to be published. In the following published remarks pseudonyms have been used for the various names of persons involved or connected with the factual background of the offending.

BACKGROUND

2. Andrew Button is a young person who has recently turned 17 years of age. Following a jury trial, on 10 May 2021 the young person was acquitted by unanimous verdict of the jury with respect to one count alleging sexual misconduct by him against one young child, but was found guilty by majority with respect to another count in the indictment, namely an act of sexual intercourse with another child who was under the age of 10 years.

3. Andrew was 13 years of age when the offending conduct occurred. He now appears for sentence following that guilty verdict by the jury. He had entered a plea of not guilty to a count on indictment that between the 30^th day of March 2018 and the 31^st day of March 2018 at Pokolbin in the State of NSW, he did have sexual intercourse with Michael Black, who was at that time under the age of 10 years, namely 5 years of age.

4. Such an offence contravenes s 66A(1) Crimes Act 1900 (NSW) and carries a maximum penalty of life imprisonment. The standard non-parole period has no application because of Andrew’s age (see s 54D(3) of the Crimes (Sentencing Procedure) Act1999).

5. Consistent with the jury’s verdict I find the following facts. On 30 March 2018 a number of families and their accompanying young children went to a vacation rental house at Pokolbin in the Hunter Valley for the Easter long-weekend. The Black family consisted of the parents and their two children, Michael who was 5 years old and his younger sibling Candice who was 3. The Street family similarly consisted of the parents and their two children: Morris who was 12 years of age and his younger sister Skye who was 5. The mothers in each family were sisters and hence the children were cousins.

6. Two other couples were also present together with an additional 4 year-old and an 18 month-old youngster.

7. Morris Street was a friend and sailing companion of Andrew Button. Andrew had been asked to come for the weekend to be a companion for Morris, as the two boys were somewhat older than the other young children.

8. After arriving at the rented holiday house, a 2-3 man tent was erected on the grass in the garden of the premises, apparently for the two older boys to sleep in. The younger children were going to sleep in the house. In the course of the early evening, various of the children were playing in and around the tent. As the evening progressed the two older boys, who were respectively 12 and 13 at the time, were in the tent with the two 5 year-olds. Apparently some form of tickling game commenced between the 5 year-olds and Andrew. Morris was playing music on his mobile phone. During the time in the tent Andrew sprayed mosquito repellent inside the tent. This caused two of the children to leave the tent. 5 year-old Skye went back inside the house where the parents were and Morris also left the tent, leaving 5 year-old Michael and 13 year-old Andrew still inside the tent.

9. The majority verdict of the jury indicates that they were satisfied beyond reasonable doubt that the allegation subsequently made by the child Michael, namely that Andrew took out his penis and asked to put it in Michael’s mouth, and indeed did so, was true. Consistent with that verdict, I find that the act of sexual intercourse as defined and as described by Michael, took place. It would appear, and I find as a fact, that Andrew persuaded Michael to put his mouth on Andrew’s penis by telling Michael that it was something that Andrew’s sister did. There is no suggestion that such an assertion was the truth, but such an utterance was undoubtedly intended to act as persuasion given the fact that Andrew’s older sister was, in fact, young Michael’s babysitter after school on a regular basis.

10. The two children were only alone in the tent for a short period of time, perhaps 10 to 15 minutes. When Morris had gone back into the house, Michael’s father asked where Michael was. Shortly after, he went to the tent to check on the 5 year-old. As Mr Black approached the tent, he heard Andrew say: “Don’t tell anyone you’ll get me into trouble.”

11. I accept that this was overheard and undoubtedly that utterance is likely to have contributed to the jury’s finding that the Crown had rebutted the presumption of doli incapax.

12. Mr Black immediately removed his son from the tent and took him inside. Andrew called out words to the effect that “Michael pulled down my pants while I was sleeping.”

13. Michael’s parents questioned him about what had happened in the tent but he made no complaint at that stage about what had happened. The following morning at breakfast, Andrew again claimed that Michael had pulled his pants down while he was sleeping in the tent.

14. Following the weekend away, and after the families had returned to Sydney, the offender’s older sister babysat Michael Black after school one afternoon that week. Michael asked her if she put her brother’s penis in her mouth. Andrew’s sister denied that such an event had ever occurred.

15. Subsequently, later that evening, Michael told his parents that Andrew had lied to him and told them that Andrew had asked to put his penis in his mouth. He told his parents that he had done so and that he did it because he had been told that Andrew’s sister did it.

16. This complaint to the parents was made on 4 April 2018 and police were immediately contacted. Andrew Button was ultimately first charged on 13 September 2018.

17. In circumstances where the 13 year-old offender is now 17 years of age, and where almost 3½ years has elapsed since the offending, it is important to understand a chronology of the delay which has occurred. I will return to the question of delay and any significance that it has in a determination of sentence later in these remarks.

SUBJECTIVE BACKGROUND

18. Andrew did not give evidence either during the trial or in the sentence proceedings. The court has been provided with a deal of material from a number of sources which permit an understanding of his personal background and upbringing. A detailed letter from his mother sets out much of his background. In addition, the court has received expert reports from Dr Christine Hughes, consultant paediatrician, dated 1 July 2021; a psychometric assessment and report from a clinical psychologist, Ms Deborah Ende, dated 18 November 2015; an affidavit from the Legal Aid solicitor having carriage of the matter on behalf of Andrew, Ms Kate Bleasel, affirmed on 4 August 2021; two psychological reports from Ms Jenny Howell, each dated 3 August 2021; and a confidential background report which was prepared for the assistance of the court by Youth Justice NSW dated 26 July 2021.

19. The officers from Youth Justice NSW had conducted a number of face to face interviews with the young person, with his mother, and with a maternal aunt. They also had access to the reports from the consultant paediatrician and the psychometric report from the clinical psychologist to which I have already made reference. A psychological assessment provided by another psychologist who was attached to the Sydney Youth Justice Community Office, Ms Sandra Mu, was also provided to the officers.

20. Andrew was the youngest of two children born in (an overseas country) to his Australian mother and his (overseas country) father. The marriage ended when Andrew was only about 6 or 7 weeks old and Ms Button then returned to live in Australia with her two children, namely Andrew and his older sister. Ms Button’s extended family, including her mother and sister, live in close proximity to where Ms Button resettled in Australia in the (X) suburbs of Sydney. Andrew maintained irregular contact with his father in (overseas country) throughout his childhood and travelled to (overseas country) for visitation with his father on only a couple of occasions. Andrew engaged in counselling when he was about 10 years of age in relation to depression relating to his father’s absence.

21. The young person described a close relationship with his maternal grandparents and he regularly went mountain bike riding with his grandfather. His aunt reported that the extended maternal family members have been significantly involved in Andrew’s life since he came to Australia as a baby and indicated a continuing level of support moving forward.

22. The young person was described by his mother as always being compliant with household rules and boundaries and that she had had no concerns with his behaviour in the household. Community Services had become involved with the family due to the nature of the offence with which he has been found guilty and also as a consequence of what were described as “unsubstantiated allegations” of the described sexualised behaviour between Andrew and his sister. Community Services confirmed that they had that contact but that there is no current necessity for continued involvement with the family.

23. Andrew was academically behind other students in his schooling from primary school. At the end of Year 2, psychometric testing had been undertaken which confirmed a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). The young person had been enrolled in (X school) commencing in primary school from Year 5 and progressing to high school where he remained until Year 11. He was asked to leave the (school) immediately following the finding of guilt at his trial.

24. Andrew received additional learning support as a consequence of his academic difficulties from Years 5 to 10. From Year 9 he was provided with support in relation to time management at school. His mother described ADHD prescribed medication as having been of benefit.

25. Since being asked to leave his school, the young person had completed a number of short courses including obtaining his White Card and engaging in work experience with a community garden and a Bush Care Program with the local council. Andrew discussed with the caseworkers from Youth Justice his working on a resume for future employment.

26. He had previously been employed from the age of 13 as a sailing instructor at the (X) Sailing Club. He was obliged to discontinue in this position after he was charged. There would appear to be no relevant history of substance abuse. Andrew reported that he had experimented with cannabis once and only once. He had first experimented with alcohol at about 15 years of age and occasionally has a recreational drink of alcohol. There has been no problematic abuse of alcohol.

27. He pursues an active lifestyle including sailing, mountain bike riding and working out in a gym.

28. His ADHD had been managed by a paediatrician since the original diagnosis in 2015. The paediatrician, Dr Christine Hughes, reported that he was compliant with taking prescribed medication. The paediatrician had referred him to a psychologist for therapeutic support as a consequence of the stress and anxiety related to the court proceedings. He had described a history of depressive feelings which had been exacerbated more recently as a consequence of feeling socially isolated after being made to leave (his school). His mother also reported him having received speech therapy when he was much younger following a diagnosis of Auditory Processing Disorder.

29. The psychologist connected with Youth Justice NSW, Ms Sandra Mu, recommended Andrew participating in supervised intervention programs in the event he is made subject to Youth Justice supervision following these sentence proceedings. This would include psychoeducation related to sexual consent and appropriate sexual behaviour including an understanding of age, cognitive and developmental factors of a person’s ability to provide consent. The report concluded by indicating that should the court impose a community-based order with supervision, Youth Justice would develop and implement an individualised case plan for Andrew.

30. The letter from his mother speaks of the difficulties felt by Andrew when he was effectively expelled from school. On 14 May 2021, the principal of (the school) advised that Andrew would not be permitted to return to school, nor would he be permitted to attend any outstanding sporting or cultural events involving students from the school. His mother described the effect of this on her son who very much enjoyed attending the school and who had recently been promoted as the Sergeant 2IC in a specialty platoon in the school cadets. He was not permitted to attend to collect material from the school nor to say farewell to any of his friends or peers.

31. He has subsequently enrolled at (X) TAFE with a view to completing his Higher School Certificate. Prior to the ongoing lockdown as a consequence of the COVID-19 pandemic and the NSW Public Health Orders, Andrew had been volunteering for (X) Council’s Bush Care program 3 days a week. As indicated earlier, he also attained his White Card. His attendance at TAFE during the current semester has been by virtual and remote means.

32. Having focused in detail on the subjective features of the offender, I now turn to the victim.

THE VICTIM

33. Michael Black was but 5 years of age when the offending conduct occurred. He presented, both during his recorded interview and during the pre-recorded evidence conducted pursuant to the pilot scheme, by which time he had turned 7, as a little boy with an understanding that what had occurred was wrong.

34. In the course of the sentence proceedings, a Victim Impact Statement was read to the court by his mother. That statement took the form of question and answer. It was accurately described by Ms O’Neill of counsel who appears for Andrew, as being both a fair and endearing indication of the impact of the offence on the child victim. In the statement he said he did not want to talk about what had happened anymore. He remembered being told that it was not his fault and although he had been asked hundreds of questions he was not allowed to tell about them. He understood why they had gone to court and said, “because Andrew did a bad thing to me and that is what happens when you do bad things.” He said that he felt good about Andrew being found guilty but was sad that he was now never allowed to go on sleepovers when his friends were allowed to.

35. It is to be recognised that notwithstanding the apparent limited impact on such a young victim, there is clearly a potential for ongoing deleterious effect upon him. However, whilst recognising the significance of the impact upon the child victim, the offence is not aggravated beyond anticipated its effect, pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

AGE OF THE VICTIM

36. As I have already indicated, the child victim was 5 years of age at the time of the offending. He was a little shy of being 5 and a half, having been born on (X) November 2012.

37. There was approximately an eight-year gap between the ages of Andrew and Michael. Both the differential in ages and the young age of the victim are relevant features in assessing the objective gravity of the offence. As pointed out by Wilson J in RC v R [2020] NSWCCA 76 at [238]:

“A child of 5 or 6 years of age has even less capacity than a child of 9 years to understand the wrongness of an act of sexual intercourse, to defend him or herself from an assault, and to find the language to later make a complaint. This is the vulnerability of the very young.”

38. The significance of the victim’s age was similarly highlighted in SW v R [2013] NSWCCA 255 at [47] per Johnson J, where his Honour said:

“A significant feature of this case is that it involved a very young victim, of an age well removed from the age limit of ten years which demarcates a section 66A offence.”

His Honour continued:

“The age of the victim, far removed from the statutory ceiling of ten years, may be described aptly as a highly aggravating factor.”

39. The description of the age being a “highly aggravating factor” was in fact the phrase which had been used by her Honour Judge English in sentencing the offender in that matter who was a 51 year-old in a position of trust who had inserted implements into the anus of the young child. Whilst there is no doubt that, as a matter of first principle, the younger a victim the more aggravating that factor is seen to be, the circumstance of the act being with a child under 10 is an element of the offence.

40. I recognise that age and vulnerability of a victim are relevant considerations. However, I do bear in mind the caution which must be recognised in having regard to these circumstances. As Simpson JA indicated in LS v R [2020] NSWCCA 120 at [41]-[42]:

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

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

CIRCUMSTANCES OF THE OFFENDING

41. The actual sexual conduct was induced by the suggestion that Andrew’s sister did such acts to him. As I have indicated earlier, she was the occasional after school babysitter and clearly a person who the 5 year-old Michael held in high regard. Ms O’Neill described this as minimal encouragement and contrasted the situation with cases where sexual activity follows either grooming or a threat or force.

41. The offending conduct was isolated and clearly unplanned and opportunistic. On behalf of the offender, it is submitted that it may be characterised as an impulsive act without any evidence of sexual gratification. I note the cross-examination of Ms Howell, psychologist, and some of the suggestions put by the learned Crown Prosecutor with respect to the factual scenario which could have the effect of reducing the level of impulsivity. The Crown highlighted the statement by the victim that Andrew asked him “two times” to put his penis in his mouth and also the persuasive force of the suggestion that his sister had done the same thing. Ms Howell agreed that such factors may reduce the extent to which the action could be described as impulsive and that it may indicate that it was predicated on a strong desire rather than being strictly impulsive. However, she went on to describe generalised impulsivity in decision-making which was consistent with the diagnosis of ADHD.

42. Ms O’Neill submitted that there was no evidence that the offence was motivated by deviant sexual interests. Ms Howell believed that there was an element of curiosity in what took place.

43. The defence also points to the nature of the act, namely fellatio, and submits that it should be viewed less seriously than an act of anal or vaginal penetration because of the minimal risk of pain or injury to the child victim. I note repeated statements in the Court of Criminal Appeal to the effect that there is no hierarchy of degrees of sexual intercourse. However, I accept the submission made by Ms O’Neill and the contrast with more aggravated forms of penetration.

44. The misleading statements by the offender in seeking to avoid the consequences of his actions by claiming that the child pulled down his, that is Andrew’s pants down are indicative of any lack of remorse at the time. His request to the victim not to tell anyone would appear to have been a request only, without any implied or explicit threat of any consequence to the victim.

45. Factors relating to the relative immaturity and inability to understand the gravity of his acts were referred to in the first report of the psychologist, Ms Howell. The degree of his learning disability, conjoined with his longstanding diagnosis of ADHD which is likely to have impacted his ability to manage impulsivity, are relevant factors which may operate as mitigating factors in an assessment of moral culpability, but which also play a part in the assessment of objective seriousness of the offending (see the remarks of Johnson J in Tepania v R [2018] NSWCCA 247).

46. In my overall assessment, the objective seriousness of the single act of offending falls towards the lower end of the wide range of such offending embraced by acts which contravene s 66A. It does not fall to the lowest end but is certainly well down a perceptible range in objective seriousness.

47. I make that assessment conscious that the standard non-parole period has no relevant application but recognising the desirability of reaching such an assessment as to objective seriousness as part of the process in instinctive synthesis which is ultimately required.

DELAY

49. As will be clear from my earlier remarks, what is now almost 3½ years has passed since the offence was committed. In circumstances where complaint was not delayed, but was made to police within days, the question of the significance of the subsequent delay is a matter which requires some consideration.

50. A detailed chronology was annexed to an earlier affidavit of the offender’s solicitor, Ms Bleasel, affirmed on 28 October 2020. I do not replicate the full detail of that chronology in these Remarks. However, some of the relevant dates appear to be as follows.

51. Following the complaint to police on 4 April 2018, by 10 April 2018 both Michael and his father had been interviewed by police. By the end of April additional statements had been obtained including an interview with the five year-old Skye Street. Assertions by her led to an additional count in the indictment in respect of which the jury unanimously returned a verdict of not guilty.

52. By mid-May 2018, the police had compiled a brief of evidence and sent it to the NSW DPP for advice with respect to the question of doli incapax. Some 4 months later the DPP advised police that there was sufficient evidence to rebut the presumption.

53. On 13 September 2018 Andrew was charged and the matter was first mentioned in the Children’s Court on 17 September 2018.

54. A brief of evidence was served on the Children’s Legal Service in early November 2018. The matter then progressed through the Children’s Court during 2019. A variety of factors contributed to ongoing delay including the initial refusal of Morris Street to provide a statement and applications for him to be required to attend at a committal hearing. Additional charges were preferred in July 2019. An interview ultimately took place with Morris Street in November 2019 and a committal hearing proceeded in approximately June 2020. Ancillary proceedings were initiated and subsequently discontinued in the Supreme Court.

55. The DPP filed ex officio indictments in September 2020 and the matter first came before the District Court in late September 2020. In due course, pre-recorded evidence was taken before Judge Shead SC before the trial ultimately proceeded with a jury in April and early May 2021.

56. Against that background, the Crown has submitted in its written submissions that there was no delay in charges being preferred against the offender, nor in the prosecution in the Children’s Court. The submissions on behalf of the Crown say that the time the matter took to come to trial “was not attributable to the conduct of the prosecution.” The Crown submits that the delay in the matter reaching trial “was substantially due to the conduct of the proceedings on behalf of the offender.” In particular, the Crown points to the application which was brought on behalf of the offender to have the allegation which was made by Skye Street dealt with in the Children’s Court and the subsequent applications filed in the Supreme Court which were described as causing a delay of 10 months.

57. The Crown made reference to El Cheikh v R [2016] NSWCCA 225 in which Price J made observations that:

“It makes little sense that an offender who could bring to an end any anxiety by contacting police but chooses to say or do nothing can benefit from inaction by a reduction in sentence.”

58. The situation before this court is not completely analogous to the circumstances in El Cheikh. It is not to be ignored that the jury unanimously returned a verdict of not guilty with respect to the allegations which proceeded on indictment with respect to Skye Street.

59. The fact of the matter is that the offender has been left in a state of uncertainty and suspense for more than 3 years during which time he has taken steps which properly may be taken into account as demonstrating appropriate rehabilitation. He was a person of prior good character and has complied subsequently with the continuing conditions of the bail which he was granted. He has committed no further offences in the intervening time. He, by all accounts on the references which have been submitted on his behalf, has continued to mature. He has required assistance psychologically which has been forthcoming.

60. I note the expressions of principle by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519 which was endorsed as being a just and principled approach to the effect of delay by the High Court in Mill v The Queen (1988) 166 CLR 59 at 66. I recognise that the cause of a delay is a relevant consideration and that there are a variety of circumstances in which delay will not be a strong mitigating factor as a result of the actions of an offender (see R v Spiers [2008] NSWCCA 107 and R v Cattell [2019] NSWCCA 297 per Price J at [136]-[137]).

61. However, rehabilitation demonstrated by an offender during a period of delay is a relevant factor in an appropriate consideration of mitigatory aspects relevant to sentence. In an extreme case where the delay is, for example, as a consequence of an offender absconding and not being re-apprehended for years, it would be entirely contrary to the public interest to afford leniency by reason of the delay which was solely occasioned by the offender: see R v Shore (1992) 66 A Crim R 37 at 47. It is to be observed, however, that Badgery Parker J in Shore contrasted the situation of cases where there was a very real issue about guilt and the decision of the accused to plead not guilty, being a decision well-justified in the circumstances, was the cause of the delay having regard to the burdens upon the court system. Genuine rehabilitation during a period of delay is not to be entirely ignored.

REHABILITATION

62. Whilst I have alluded to the topic of rehabilitation in my Remarks above, I should make it clear that I accept the evidence which has been presented which is demonstrative of genuine rehabilitation. The evidence from the clinical psychologist, Ms Howell, both in her reports and in her oral testimony before me clearly establish that the young person has consistently acknowledged the wrongfulness of the offending behaviour and that he has articulated an understanding of the impact of such behaviour on the victim. He also recognised the impact upon the victim’s family. Whilst remorse is not specifically demonstrated in circumstances where a plea of not guilty was maintained, and continues to be so, the objective acknowledgment of the wrongfulness of the behaviour and the impact on the victim and his family are relevant factors consistent with extremely good prospects of rehabilitation.

COVID-19

63. The circumstances of the current COVID-19 pandemic and the current state of the public health orders in NSW are not factors which should be ignored. It may be accepted that conditions in custody will be more onerous due to the COVID pandemic circumstances than might otherwise be anticipated. I note the observations of the NSW Court of Criminal Appeal in this respect in Scott v R [2020] NSWCCA 81 at [154]-[166] and McKinnon v R [2020] NSWCCA 106 at [32].

64. The evidence before me indicates that upon entry into a Juvenile Justice Centre, the young person would be placed in effective quarantine or isolation for 2 weeks. This would have an immediate, albeit not permanent, effect in disrupting his schooling (see s 6(c) of the Children (Criminal Proceedings) Act).

65. There would be an absence of visits from members of his family until at least the end of lockdown in the relevant Local Government areas and possibly longer due to the steps taken by the correctional institutions to prevent the introduction of COVID.

66. These are relevant matters that I will take into account in determining whether the s 5 threshold is crossed.

RELEVANT PRINCIPLES

67. I turn now to the principles of law applicable to determination of an appropriate sentence. The principles and presumptions of law applicable to sentencing an offender who himself was a child at the time of offending are conveniently and appropriately set out in detail in the decision of Hamill J, with whom Bathurst CJ and Schmidt J agreed, in Paul Campbell (a pseudonym) v R [2018] NSWCCA 87. That judgment is instructive not only in relation to the applicable general principles, but also in relation to the actual disposition and ultimate sentence passed in that matter.

68. Hamill J said at [20]:

“It is worth emphasising that the criminal law in Australia treats children differently to adults who commit criminal offences. This is the result of the common law, legislation and, to a lesser extent, an international treaty to which Australia is a party. The critical statute in New South Wales is the Children (Criminal Proceedings) Act 1987.”

69. His Honour noted that two of the offences for which the appellant in that matter had been sentenced in the District Court, fell within the definition of a “serious children’s indictable offence” and that, accordingly, they were required to be dealt with according to law.

70. His Honour further noted that the fact that the child was to be dealt with according to law did not displace the general provisions of the Children (Criminal Proceedings) Act concerning the treatment of children under the criminal law. The central provision in that legislation was, and is, s 6:

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a)  that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b)  that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)  that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)  that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)  that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f)  that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)  that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h)  that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

71. His Honour went on to note at [30] in Campbell the judgment of Kirby J, who had dissented in the outcome in R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1, and then Hamill J said:

“In R v Elliott and Blessington, Kirby J (dissenting in the outcome) observed that ‘a jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children.’ His Honour referred to Slade v The Queen, where the New Zealand Court of Appeal appeared to accept the following opinion of a psychologist:”

“It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults. Adolescents have difficulty regulating their moods, impulses and behaviours. Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents’ decision-making capacities are immature and their autonomy constrained.”

72. Hamill J also made reference to MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, a decision of Adams J, which had identified two of the reasons that the youthfulness of an offender was considered to be a significant factor in sentencing. Adams J had identified the first significant point as the substantial public interest in the rehabilitation of young offenders and the second being that immaturity is relevant to culpability or criminality because “children do not have adult value judgments, adult experience or adult appreciation of consequences.”

COMPARATIVE CASES

73. I note the introduction of s 25AA(1) of the Crimes (Sentencing Procedure) Act in 2018 which requires a court to have regard to current sentencing practices rather than sentencing practices which may have existed at the time of earlier historical offending. Whilst the present matter does not involve historical allegations, the utility of so called comparative cases requires a focus on cases and sentences which have occurred since the relevant amendments to sentencing practice with regard to child sexual offences which occurred in 2018.

74. Whilst clearly being required to bear in mind the variable and varying factual circumstances of individual cases, I have had regard to a number of such cases which have some features of particular relevant comparison. The detail in the case of Paul Campbell is of some enlightenment.

75. The matter of Paul Campbell (a pseudonym), though initially dealt with in the District Court prior to the introduction of the sentencing reforms, ultimately came back to the District Court for resentencing after the reforms of 2018.

76. Campbell was a boy of 13 years of age in October 2016 when he committed a series of serious sexual assaults on his female cousins, who were 6 and 7 years of age respectively. He committed three acts of sexual intercourse on the 6 year old, including digital penetration, cunnilingus and fellatio. Each of those offences carried a maximum penalty of life imprisonment. Two additional offences of aggravated indecent assault with respect to the same girl were also originally charged. With respect to the second victim, who was 7 years old, an additional charge of indecent assault was preferred.

77. The matter was first dealt with in the District Court before his Honour Judge Berman SC: see R v Campbell (a pseudonym) [2017] NSWDC 359. Two of the offences of actual intercourse with a child under 10 were on the indictment which was presented. They each carried a maximum penalty of life imprisonment. A third charge relating to similar conduct, i.e. intercourse with a child under 10, which also carried a maximum penalty of life imprisonment, had erroneously been placed on a Form 1. Such a course was prohibited by s 33(4)(b) of the Crimes (Sentencing Procedure) Act. This problem was not identified at the time by the legal representatives nor by the sentencing judge. The other charges of aggravated indecent assault against the six year old victim were also on the Form 1. The indecent assault on the second victim was charged substantively.

78. The sentencing judge gave indicative sentences of 12 months and 10 months for each of the acts of sexual intercourse and 4 months for the indecent assault. Judge Berman proceeded to impose an aggregate sentence of 16 months, with a non-parole period of 8 months. He directed that the sentence be served as a juvenile offender in a Juvenile Detention Centre. His Honour directed, in accordance with the legislative availability pursuant to s 14, that a conviction was not to be recorded.

79. The child offender appealed to the Court of Criminal Appeal. The defect in the proceedings below with respect to the inclusion of a matter carrying a maximum penalty of life imprisonment on a Form 1 was identified by the Crown and conceded as an appealable error. Leave was given to include this as an additional ground of appeal.

80. Notwithstanding the Crown’s submission that the original grounds of appeal should be rejected, the Court proceeded to hear argument with respect to them in order to determine whether to proceed to resentencing or whether to remit the matter to the District Court.

81. After dealing with general matters of principle, Hamill J then proceeded to deal with the first ground of appeal, which was that the sentencing judge, Judge Berman, had erred in ruling that the Crown’s concession in the sentence proceedings that a sentence other than full-time custody was “within range”, was “wrong in sentencing principle.”

82. Reference had been made at first instance to RP v R [2015] NSWCCA 215, in which a careful analysis of the comparable cases referred to in the judgment demonstrated that serious sexual offending committed by children as young as the applicant did not necessarily result in full-time incarceration.

83. Hamill J said at [38]:

“It is unnecessary to examine in great detail the comparative cases because, as the Crown submitted at first instance, and the parties agreed on the hearing of the appeal, each case necessarily turns on its own facts. However, the comparable cases do demonstrate that there is considerable flexibility in sentencing young offenders even where, as here, had the sexual offending been committed by an adult an extremely long sentence of full-time imprisonment would be imposed. The comparable cases included examples of serious sexual offending which did not result in the imposition of full-time custodial sentences. In other cases, sentences of full-time imprisonment imposed on young offenders resulted in successful appeals and resentencing whereby the applicant was immediately or soon released from custody.”

84. Hamill J went on to find that the reference to “wrong sentencing principle” articulated by Judge Berman must have been the application of general principles to the sentencing outcome in the particular case. Hamill J said at [40]:

“Needless to say, this is not a ‘sentencing principle’ in any real sense. If his Honour meant by this remark that there was a sentencing principle that children charged with offences of this kind and seriousness could never escape a full-time custodial sentence, his Honour fell into error.”

85. Ground 1 was, accordingly, upheld.

86. The second ground of appeal, namely that the sentencing judge erred in failing to consider an alternative to full-time custody, was also upheld. Additional grounds relating to the sentencing judge having erred in assessing the seriousness of the offence and in finding that the applicant had used his position as a trusted family member to commit the offences were, on the specific facts of that case, also upheld.

87. In addition to these various grounds being upheld, the appeal was also upheld on the basis of the added ground in relation to the inclusion on the Form 1 of the offence which carried a maximum penalty of life imprisonment.

88. In determining an appropriate disposition of the appeal, Hamill J dealt with complications that had arisen in part as a consequence of a decision by the New South Wales Director of Public Prosecutions that it was likely that the digital penetration sexual intercourse charge, which had originally been included on the Form 1, might proceed separately. His Honour was of the view that it was undesirable that the applicant be subject to re-sentencing in the Court of Criminal Appeal and then later be brought before the District Court on that additional and closely-related charge. However, before remitting the matter to the District Court, Hamill J indicated that he was satisfied that a less severe sentence was warranted and ought to have been imposed.

89. On the material before the Court of Criminal Appeal, his Honour expressed the opinion that he was satisfied, having considered all possible alternatives, that a sentence of imprisonment was the only sentencing option. However, his Honour said that if he were inclined to re-sentence, the sentence imposed would be substantially less than 2 years and his Honour would order that any such sentence be suspended under s 12 of the Crimes (Sentencing Procedure) Act.

90. As I indicated earlier, both Bathurst CJ and Schmidt J agreed with Hamill J’s reasons. The order for remittal to the District Court was made on 4 May 2018.

91. The matter of resentencing having been sent back to the District Court, the Director of Public Prosecutions added the further charge of sexual intercourse with a child under ten which had been on the Form 1, to the original substantive charges. The original offences, together with that additional charge, then proceeded to sentence in the District Court before her Honour Judge Huggett on 13 December 2018.

92. Her Honour was required to proceed to pass sentence in light of the amendments to the Crimes (Sentencing Procedure) Act which had taken effect earlier that year. Of particular significance was that by the time her Honour came to pass sentence, suspended sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act were no longer an available sentencing option.

93. Her Honour Judge Huggett made reference to the considerable focus which needed to be given to any rehabilitation to date and the capacity of a child to reform and the desirability of reform. Her Honour noted that the weight to be afforded to youth does not alter simply because the young person has been convicted of the serious offence. Her Honour said that where immaturity was a significant factor in the commission of an offence or offences, the criminality involved will be less than if the same offence was committed by an adult.

94. After referring to a number of matters specific to the offender, her Honour concluded that she was satisfied that his prospects of continued rehabilitation were very good and that his risk of reoffending was low. Her Honour noted that the fact that 2 years had passed since the commission of the offences was a relevant factor and that the delay in the matter coming back for sentence had ultimately created some very significant adverse effects. One of those was that, as a result of the legislative changes, the options available to the Court were less favourable to the offender than they were at the time he was originally sentenced. In particular, the fact that suspended sentences were no longer available and that he had made further progress towards rehabilitation were seen to be important factors.

95. Her Honour Judge Huggett concluded that although the type of sentence, that is substantially less than 2 years and suspended, which had been postulated by Hamill J, may well have been appropriate as at December 2017, things had changed since that time in significant ways, particularly with respect to further steps taken towards rehabilitation. Judge Huggett found that the outcome suggested by the Court of Criminal Appeal, by the time the matter came before her, was no longer warranted or available.

96. Her Honour concluded that a custodial sentence was no longer the only appropriate sentence. She proceeded to impose, in lieu of sentences of imprisonment, Community Correction Orders with respect to each of the offences, including the additional offence which carried a maximum penalty of life imprisonment. Her Honour did not consider it necessary for any conviction to be recorded and, being satisfied that he did not pose an ongoing risk to the lives or sexual safety of one or more children in the community, she declined to make a registration order. I am informed that there has been no appeal against that judgment which, in my view, deserves publication.

97. Ms O’Neill of counsel, on behalf of the offender, tendered a number of graphs from the JIRS Statistics. I am conscious of the reserve which the blunt instrument provided by sentencing statistics requires. However, the appropriate use of statistics and relevant comparative cases has been approved both by the High Court of Australia and the NSW Court of Criminal Appeal on numerous occasions. Whilst bare statistics may be of limited utility and as R A Hulme J emphasised in Why v R [2017] NSWCCA 101, if statistics are to be relied upon counsel must ensure that the limits of their utility are properly understood, the sentencing statistics if properly understood and used appropriately can be a very valuable tool. The graphs which have been tendered relate to s 66A and s 66A(1) offences with respect to offenders within the age range of 10 to 13 years. I note in passing that the next increment is between 14 and 17.

98. The first graph related to a single offender within the age range of 10 to 13 years who had received a term of imprisonment in relation to an offence charged under s 66A which occurred after standard non-parole periods had been introduced. The single case is published as BM v R [2019] NSWCCA 223. The Court of Criminal Appeal dealt with that matter in September 2019 following an appeal against the severity of sentences imposed by Judge Gartelmann SC with respect to one count of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act 1900 (NSW) and three additional counts of assault with an act of indecency contrary to s 61M(2) of the Crimes Act 1900 (NSW). The applicant was a cousin of the victim who was 4 or 5 years of age at the time of the offending. The act of intercourse related to the insertion of a lollipop stick into the vagina of the 4 or 5 year old child. The offender was 13 years 10 months of age at the earliest time alleged in the range of dates pleaded in the indictment. The actual range of dates pleaded in the indictment embraced the offender as having been 13, 14 or 15 years of age.

99. The first act of indecency occurred at the same time as the act of intercourse and involved the offender rubbing the child’s bare vagina. The second and third indecent assaults occurred in later years and included an intimate kiss and a grabbing of the child’s buttocks in circumstances which led to the conclusion that the original incidents were not isolated events.

100. The sentencing judge at first instance had concluded that the s 5 threshold was crossed and that no sentence other than full-time custody was warranted. However, the Court of Criminal Appeal, per Payne JA, Fullerton and Bellew JJ, whilst holding that it was open to the sentencing judge to have found that the s 5 threshold had been crossed, concluded that he had fallen into error in failing to take into account a material consideration. In particular, his Honour had neglected to have regard to factors personal to the offender which were causally connected with or materially contributed to the commission of the offences including a mental disorder or mental impairment. The court made reference to R v Tepania [2018] NSWCCA 247 in this regard. The court also made reference to R v AA [2017] NSWCCA 84 in which Beech-Jones J (with whom Leeming JA and R A Hulme J agreed) had expressly indicated that the age of a young offender who committed child sexual assault offences may bear upon an assessment of the objective seriousness of his conduct.

101. The critical factors which had not been taken into account in the District Court in assessing the objective seriousness of the offending were the applicant’s age and mental condition. In the light of the finding of such error both as to his age at the time of the offending and the presence of a learning disorder and/or ADHD the Court of Criminal Appeal proceeded to resentence.

102. The sentence at first instance in BM of an indicative 2 years 6 months following a plea of guilty for the sexual intercourse and an indicative 1 year 3 months with respect to the indecent assault touching the vagina had resulted in an aggregate sentence of 2 years 6 months and a non-parole period of 1 year 3 months. That aggregate sentence was reduced by the Court of Criminal Appeal to an aggregate sentence of 1 year 6 months with a non-parole period of 9 months which expired on the day of the hearing in the Court of Criminal Appeal. The orders accordingly were made instanter and the reasons for such orders were reserved and handed down on 27 September 2019. Significantly, the indicative sentence with respect to the sexual intercourse was reduced to 14 months and with respect to the indecent assault, was reduced to 8 months.

103. The second graph relating to offenders within the age range of 10-13 years who had been sentenced to a term of imprisonment for an offence which had occurred prior to the specification of standard non-parole periods had only one unpublished decision in the District Court.

104. That unpublished decision was in fact a judgment of Judge O’Brien of the District Court in R v MP at Wollongong District Court on 5 April 2019. The court was able to obtain an unrevised copy of his Honour’s remarks.

105. A trial had proceeded at Campbelltown District Court in October and November 2018 on an indictment containing 14 counts of sexual misconduct between the offender and his sister. The jury had returned verdicts of guilty on 3 counts and verdicts of not guilty on the remaining 11. The offender was approximately 13 years 8 months at the time of the offending and his younger sister was 8. The first count arose from an incident in a locked bathroom in which the victim was kissed by her brother using an open mouth and tongue. He then inserted his fingers into her vagina and moved them in and out for a short time. He organised to meet later that night after what was described as “lights out.” The child victim, in accordance with the arrangement, went and met her older brother later that night and he took her to an area outside the house where the family motor vehicle was parked. They got into the motor vehicle where an act of penile-vaginal intercourse took place. The victim suffered pain and began crying. She also suffered a degree of bleeding.

106. The third offence on which the jury returned a verdict of guilty occurred more than 12 months later. A plan was hatched between the offender and his sister to involve a friend of the victim who was visiting, in playing games which would involve some level of sexual interaction. The victim went and got her friend and brought her to her brother’s room where he was lying naked under a sheet. He pretended to be sleeping and his sister then pulled back the sheet and played with his penis in front of the other young girl. The offender’s sister invited her friend to come over and participate. The second young girl declined and in due course gave evidence at trial of recalling the event and having observed the offender smirking whilst the action took place.

107. The complaints in that matter were historical in nature. The offences had occurred in 1996 and 1997. The offender was, accordingly, an adult at the time of the passing of sentence. Against that background, Judge O’Brien indicated sentences of 12 months with respect to the digital penetration; 2 years with respect to the penile-vaginal penetration; and 6 months with respect to the inciting to an act of indecency which gave rise to the third count. An aggregate term of 2 years 6 months with a non-parole period of 12 months was accordingly passed. Clearly, the severity of the incidents in this matter are more severe than those before the Court in the present proceedings.

108. The next JIRS graph tendered related to all offences falling within the age range of 10 to 13 years who had been sentenced for s 66A(1) offences of sexual intercourse with a child under 10 in relation to sentences passed between 24 September 2018 and 31 December 2020. All four young offenders had received the benefit of non-custodial sentences.

109. The court has endeavoured, by virtue of access to Justice Link, to obtain the details relevant to those four matters. The first matter brought up pursuant to the hyperlink (the use of which has been urged by Justice RA Hulme), was a decision of Judge Weinstein of R v KL [2020] NSWDC 409. The child offender was a female aged 14 years 3 months at the time of the offending against her 5 year old brother. The first count involved an instance of fellatio committed on her young brother which was recorded by means of a video recording on her mobile phone. The incident occurred against a background of an assertion that the same act had occurred previously for perhaps 30 minutes. The video was forwarded to a 16 year-old male with whom the offender was in an online relationship. There were a number of charges of disseminating child abuse material carrying a maximum penalty of 10 years imprisonment in addition to two substantive offences of sexual intercourse with a child under 10 contrary to s 66A(1). Without analysing the facts in any more detail, I note that there was a plea of guilty and that there were factors including immaturity and a diagnosis of ADHD which were relevantly taken into account. As indicated in the JIRS graph, Community Corrections Orders were imposed.

110. The second matter in the JIRS case details related to a judgment of Judge Grant in R v DN [2019] NSWDC 536. The young person had been 12 years of age at the time of the offending and was 14 at the time of sentence. An indictment containing eight counts of sexual intercourse with a number of complainants under the age of 10 years was originally presented. Following a voir dire and negotiations, pleas of guilty were in due course entered to six counts on an indictment each of which alleged an offence against s 66A(1). Four of the offences included fellatio and penile-anal penetration of a young person who was under 10. Other than the child-like descriptions from the young victim, the remarks do not elucidate the actual age of the victim other than the relevant element that he was under 10. Two additional counts under s 66A(1) were of sexual intercourse constituted by acts of cunnilingus performed on a female victim Again, the facts do not reveal the actual age of the victim. The sentencing judge found that there were good prospects of rehabilitation and accepted that an additional discount was relevant due to circumstances derived from R v Ellis (1986) 6 NSWLR 603. Taking into account the immaturity of the offender as a significant factor, a Community Corrections Order was imposed in relation to the matters for sentence.

111. The third matter in the JIRS case details was a sentence imposed by Judge Colefax on 20 August 2019 which similarly resulted in a Community Correction Order for an offender aged between 10 and 13 years. That sentence had been passed following a plea of not guilty. No revised or unrevised copy of his Honour’s remarks is available.

112. The fourth matter listed in the case details relating to the imposition of a Community Correction Order was a matter of the sentence imposed by Judge Huggett on 13 December 2018 with respect to the offender described by the pseudonym Paul Campbell.

113. Her Honour’s unrevised remarks had been provided to the court for the purposes of an earlier judgment (R v DW(No 1) [2020] NSWDC 461) and I have summarised the factual material resulting in that sentence earlier in these Remarks.

114. The last graph from JIRS which was tendered related to offenders between the ages of 10 and 13 charged pursuant to s 66A prior to the decision in Muldrock. Of the five cases within this category, only one was required to serve a term of imprisonment. Two received suspended sentences pursuant to s 12, one received a s 9 bond, and another offender was dealt with in the Children’s Court.

115. The one sentence of actual imprisonment, although not published, indicated multiple offences and a prior record of burglary and break and enter.

116. Notwithstanding the very small number of cases and the diminished utility of the raw statistics, such matters as have been dealt with for young offenders under 14 years of age consistently demonstrate that a non-custodial sentence has been utilised with respect to single offences and where multiple offences under s 66A or s 66A(1) are also often involved.

DETERMINATION

117. I note the purposes of sentencing which are expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). They, of course, include ensuring that an offender is punished for the offending conduct, general deterrence, protection of the community, promotion of an offender’s rehabilitation, accountability for an offender’s actions, and denunciation of the conduct as well as a recognition of the harm done to victims. The court, as I have noted earlier in these Remarks, is bound to take into account the relevant factors in s 6 of the Children (Criminal Proceedings) Act 1987. I have set them out fully earlier and do not restate them.

118. Having had regard to s 5 of the Crimes (Sentencing Procedure) Act I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I have reached that determination notwithstanding the seriousness of the crime in respect of which the young person has been found guilty.

119. I am of the view that a Community Corrections Order is appropriate in all of the circumstances and I propose that such an order be imposed for the duration of 3 years to date from today.

120. The conditions of the order are as follows:

1. Andrew must not commit any offence during the term of the Order.

2. Andrew must appear before this court if called upon to do so at any time during the term of the Order.

3. He is to be subject to supervision by Juvenile Justice NSW during the term of the Order.

121. I note that the Crown has submitted that additional conditions including a curfew and community service should be imposed. I recognise that an assessment report would be required if community service were to be imposed as an additional condition.

121. Given the voluntary activities which had been being undertaken by the offender prior to the lockdown of greater Sydney and the ongoing uncertainty as to the availability of community service in the foreseeable future, I am not of the opinion that such additional conditions should be imposed. I have also noted the evidence provided to the Court and information from his mother and maternal family members and I am not of the view that it is necessary to impose a curfew.

122. Absent any order by me, it would flow from the conviction for the offence under s 66A(1) that the young person would be a “registrable person” and be subject to the provisions of the Child Protection (Offender’s Registration) legislation. The child sex offender registration scheme came into existence in NSW as a consequence of various amendments flowing from the Wood Royal Commission paedophile inquiry.

123. I have given careful consideration to the aims of that legislation. I am satisfied in the circumstances of the commission of the single offence before me and in light of the psychological reports, the rehabilitation which is evident, and the assessment carried out by the caseworkers from Youth Justice NSW, that it is appropriate that an order be made pursuant to section 3C(1) of the Child Protection (Offender’s Registration) Act that the young person is not to be treated as a registrable person for the purposes of the Act. I am satisfied that the young person does not pose a risk to the lives or sexual safety of one or more children or children generally.

124. The formal orders of the Court are:

1. Non-Publication Order: Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), I direct that the names of the offender or the victim, or any features which might tend to identify them, are suppressed.

2. The offender is convicted.

3. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Correction Order. I impose the order for a term of 3 years to date from today 10 September 2021.

4. The standard conditions of the order apply, namely:

1. The offender must not commit any further offence;

2. The offender must appear before the court if called upon to do so at any time during the term of the Community Correction Order.

5. The following additional condition applies:

1. A supervision condition requiring the offender to submit to supervision by a Juvenile Justice officer for the duration of the order.

6. A copy of this order will be provided to the offender electronically by the Court Registry and explained by Corrective Services.

7. I make an order pursuant to section 3C(1) of the Child Protection (Offender’s Registration) Act that the young person is not to be treated as a registrable person for the purposes of the Act.

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Decision last updated: 07 November 2022