R v BJ; R v HA; R v DM

[2018] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:

R v BJ; R v HA; R v DM [2018] NSWDC 122

Hearing dates:

14 December 2017

Date of orders:

28 March 2018

Decision date:

28 March 2018

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

BJ: see [106]-[107]

HA: see [141]-[143]

DM: see [172]-[175]

Catchwords:

Section 66C(4) Crimes Act 1900; aggravated sexual intercourse child between 14 - 16; offenders in company; young offenders; co-offenders; single victim; pleas of guilty

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

AI v R; R v SB and AI [2011] NSWCCA 95
Armstrong v R [2017] NSWCCA 323
B v R (1958) 44 Cr App R 1
B v R; SW v R [2006] NSWCCA 172
Bugmy v R [2013] HCA 37; 249 CLR 571; 229 A Crim R337
Franklin v R [2013] NSWCCA 122
Hili v The Queen, Jones v The Queen (2010) 242 CLR 520 at 537; [2010] HCA 45
KT v The Queen (2008) A Crim R 571; [2008] NSWCCA 51
Ohanian v R [2017] NSWCCA 268
OM v R, MH v R, AA v R, ASB v R [2009] NSWCCA 267
Pearce v R [1998] HCA 57; 194 CLR 610
R v AS (2006) 165 A Crim R 100
R v Do [2005] NSWCCA 209
R v KB; R v JL; R v RJB [2011] NSWCCA 109
R v Slack [2004] NSWCCA 128
R v Thomson and R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383
R v Tuala [2015] NSWCCA 8
R v WKR (1993) 32 NSWLR 447
R v YS [2014] NSWCCA 26
Rainbow v R [2018] NSWCCA 442
Simpson v R [2014] NSWCCA 23
Vougdis v R (1989) 41 A Crim R 125
Wakeling v R [2016] NSWCCA 33

Category:

Sentence

Parties:

Crown
BJ
HA
DM

Representation:

Counsel:
Ms N Keay (Crown)
Mr A Miller (BJ)
Mr S Fraser (HA)
Mr L Brasch (DM)

File Number(s):

R v BJ: 2016/156679; R v HA: 2016/224659; R v DM: 2016/226199

Publication restriction:

Pursuant to section 7(a) Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of the names of the offender’s and the victim.

SENTENCE

1. ​The indictments to which the offenders pleaded guilty on 1 November 2017 are for sexual intercourse with a female victim who was above the age of 14 years and under the age of 16 years: s 66C(4) of the Crimes Act 1900.

2. The trial of BJ, HA and DM was listed to commence on Monday 30 October 2017. A jury was not empanelled. From the commencement, the Court was informed that instructions were being obtained, particularly, by the Crown and it was not until the afternoon of Wednesday, 1 November 2017 that the pleas were entered in the Court. In the circumstances, the agreed position is that the pleas of guilty were entered at the commencement of the trial. The pleas were on the Agreed Facts.

3. At the sentencing hearing on 14 December 2017, counsel for each of BJ, HA and DM submitted, and the Crown did not oppose, that the appropriate utilitarian discount on the guilty pleas entered by the offenders BJ, HA and DM was in the range of 10 to 15%.

4. BJ, HA and DM entered their pleas of guilty in circumstances where it was apparent to them that the victim would give evidence. That circumstance is consistent with the recognition of criminality but not of remorse nor with an expression of personal denouncement of moral culpability for their offences. Nevertheless, it did display a will to save the victim from the distress of giving evidence and did save the community the cost of a jury trial. It was an admission of guilt at law by young offenders. I am informed that the pleas were entered to alternative offences. A discount of 15% is appropriate: R v Thomson and R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383.

5. The maximum sentence for each offence is 12 years: s 66(4) Crimes Act. The circumstance of aggravation was being in company during the offending: s 66C(5)(c) Crimes Act.

6. At the time of the offending BJ was 14 and a half years of age, placing him near the upper age threshold of the Common Law rebuttal presumption that a child cannot possess the necessary knowledge to have mens rea: B v R (1958) 44 Cr App R 1. By pleading guilty, he acknowledged that at the time of the offending he knew what he was doing was seriously wrong not merely naughty or mischievous: B v R; SW v R [2006] NSWCCA 172.

7. The victim was 15 years and five months of age, placing her in the higher range of age for a victim of the offence. Whilst the victim suffered an abrasion type injury including some bleeding from sexual intercourse with BJ, HA and DM, her injuries are not identified as intentionally or recklessly inflicted upon her by the offenders.

8. Because each of the offenders was a child at the time of the offence, the standard non-parole period of five years does not apply: s 54D(3) Crimes (Sentencing Procedure) Act 1999 ('CSP Act').

The Facts 

9. The Agreed Facts are as follows:

1. On the evening of 20 May 2016, the victim met with her female friend, AB and with KS who was a 19 year old female friend of AB. At the time the victim was unable to live at home and was living at the home of her friend, AB.

2. Whilst the three girls were on a train at about 11pm, the victim’s friend, AB, was arrested by police leaving the victim in the company of the 19 year old KS, whom she had not met before that evening. The victim went with KS to the home of BJ, arriving at about midnight. KS was attending a party at BJ’s house. The victim had not previously met BJ.

3. The co-offenders DM and HA, each of whom was 17 years of age, were at BJ’s home. When the victim arrived, there were three other girls present, all of whom were aged 16 years.

4. The victim had never met DM or HA before.

5. Shortly after the victim arrived at BJ’s home, KS and the three other girls decided to leave the premises. Because the victim was not able to live at home and AB had been arrested she had no place to stay the night. She attempted to call her boyfriend to come and get her but was unable to contact him. KS asked BJ if the victim could stay the night at his home and he agreed. KS and the other girls left BJ’s home, leaving the victim alone with BJ, HA and DM.

6. (first incident) BJ, HA and DM asked the victim to come into room 2 of BJ’s home. She had one sip of alcohol which made her feel sick. There is no suggestion that she was intoxicated. The victim was sitting near the pillow end of the bed with her legs hanging over the bed and her feet on the floor.

7. A short time later, DM positioned the victim’s legs onto the bed such that he was sitting between her legs and her genital area was close to him.

8. BJ was trying to kiss the victim. BJ and an unknown male were nearby when DM pulled the victim’s pants off and threw them on the floor.

9. The unknown male asked the victim whether she consented (first inquiry of consent).

10. The victim did not respond to the unknown male’s inquiry of consent. BJ was still trying to kiss the victim. DM put his finger in her vagina (Form 1 DM).

11. The unknown male placed one hand on the victim’s breast and with the other hand he grabbed the victim’s hand which he then placed on his penis. The unknown male said, “Is that all right?” (second inquiry of consent).The victim did not respond to the inquiry of consent.

12. BJ put his penis in the victim’s mouth (Count 1 BJ).

13. DM put his penis in the victim’s vagina and had penile/vaginal sex with her (Count 1 DM).

14. The unknown male kept telling DM to move. The unknown male then had penile/vaginal sex with the victim.

15. Throughout the first incident HA stood in the room, near the door (Count 1 HA).

16. After the unknown male got off the victim, BJ had penile/vaginal sex with her (Count 3 BJ). Whilst this was occurring DM, HA and the unknown male left the room.

17. BJ had penile/vaginal sex with the victim for five to ten minutes until she told him to stop and said that she needed a smoke. BJ, in response to the victim’s request, got off her.

18. The victim went outside and had a smoke. A short time later the victim went and sat in the lounge room to watch television with BJ, HA, DM and the unknown male.

10. At this point I interpose that the following facts are relevant to the criminality and moral culpability of the offending of each of BJ, HA and DM:

1. None of them knew the victim.

2. Each of them was present in room 2 during the first incident when the unknown male inquired twice of the victim whether or not she consented to the sexual intercourse and the victim did not voice a response.

3. BJ, HA and DM did not use physical force, threats, intimidation or coercion directed to the victim in order to force or persuade her to have sexual intercourse.

4. The victim did not struggle or use force, protest or voice her opposition against the sexual intercourse.

5. These circumstances are relevant to the gravity of criminality continued through the second incident.

6. The Juvenile Justice Background Reports record that each of BJ, HA and DM believed the victim to be 17 years of age. None of the offenders gave evidence on oath. Counsel for each of them confirmed that their clients agreed to the Agreed Statement of Facts and conceded that each plea of guilty accepted that their client had failed to make inquiries and did not know the victim’s age. The victims are to be sentenced on the basis of the Agreed Facts.

7. BJ, HA and DM properly submit that the facts listed above, in particular the inquiries as to consent, are consistent with a lower range of objective seriousness of offence, gravity of criminality and a degree of moral culpability such as that which might prevail in another case where no inquiry of consent was made and where coercion, intimidation or force was used to force the victim to submission.

1. (second incident) After some time in the lounge room BJ and HA asked the victim to go to room 1 of BJ’s home. Room 1 was another bedroom. HA came to her saying that he wanted to talk to her and guided her by her hand into room 1. There was a single bed in the room.

2. BJ came into the room and laid down on the bed. He told the victim to lie down next to him and said, “We are only talking”. The victim lay down next to him. The victim had her clothes on and BJ also had his clothes on. HA sat on the end of the bed before laying down on the bed.

3. HA started touching the victim on the outside of her vagina with his fingers/hands over the top of her clothing. BJ put his hand inside her pants and touched her vagina.

4. Both BJ and HA pulled down her pants. BJ and HA had penile/vaginal sexual intercourse with the victim (Count 2 BJ, Count 2 HA).

5. The penile/vaginal sexual intercourse of BJ and HA with the victim continued until the lights were turned on by another male, JH, who came into the room. At the time HA was on top of the victim and blood was noted on the bed sheet. There was blood on the fingers and penis of HA and he ran outside saying that he was sorry.

6. It was submitted by counsel for HA that his immediately leaving the room and apologising when he observed the blood and therefore that the victim had suffered some harm, displayed some moral responsibility. I accept that action as a response indicative of appreciation of some level of regard for the physical welfare of the victim. I note the Background Report records that HA was also worried about injury to his penis.

7. The victim stayed in the bedroom, room 1, for about five to ten minutes lying down by herself. She then went to the bathroom and washed the blood off her vagina and legs. She went back into the lounge room where the males were. At that time another two males and two females had arrived at the premises.

8. The victim sat in the lounge room with the group and had some marijuana with them.

9. H, another male kept asking the victim to come back inside the bedroom, room 2, but she refused.

10. The victim sat in the lounge room for about five minutes watching a movie. She felt ill and then ran to the bathroom and vomited. The victim woke up around 8.30 to 9am in the morning on the single bed in the bedroom 1 by herself. She only had her bra on and her clothes were on the floor.

11. The victim put on her clothes and walked out the sliding door. An African male was sitting on chairs outside and she walked to the main street. The victim walked to the home of her friend MM which was not far from BJ’s home.

12. When the victim arrived at MM’s home she spoke to MM’s flatmate who contacted MM and MM then reported the matter to the police.

13. When police attended the victim complained of soreness in her vagina, bad stomach pains and headache. The victim was taken to Westmead Hospital for a medical examination. A female doctor was not available to undertake an examination at this time but swabs were taken by the victim herself under instruction from staff. The victim complained of being light‑headed and she was noted to be drowsy. The victim had a cluster of ill-defined bruises on the right side of her neck, approximately 10 centimetres by 3 centimetres from collar bone to angle of the jaw and a 2 centimetre by 2 centimetre well demarcated circular bruise midway on the inner aspect of her right arm. Photographs were taken of the injuries on her face, neck and arm. The doctor described these marks as “hickeys” or “love bites”.

14. A medical examination was completed on 23 May 2016 by Dr Christine Norrie who noted that there was an injury to the victim’s genital area described as a 1 centimetre by 0.3 centimetre linear mid line abrasion/laceration tear of the medial raphe midway between the posterior fourchette and the anal rugae with minimal bleeding from this abrasion.

15. At 7.06pm on 21 May 2016 the victim was interviewed by police and her evidence was recorded. During the interview she disclosed the above offences and nominated the accused BJ as one of the males who assaulted her.

16. Police applied for and were granted a crime scene warrant for BJ’s home. Police attended and searched the premises.

17. At 9.45pm on 21 May 2016 police arrested BJ at his home. His iPhone was seized. BJ was remanded in custody and has remained in custody since that time.

18. At about 10pm 22 May 2016 DM, HA and H attended Mt Druitt Police Station. Police seized the mobile phones belonging to HA and H. They were later charged.

19. The DNA of BJ matched with the profile of the semen located inside a green Durex condom that was found in the rear yard of BJ’s home. It had DNA matching the profile of the victim on the outside of it.

20. In intercepted text messages between DM and his former girlfriend, DM told her that he wore a condom when he had sex with the victim.

11. I make the following additional observations arising from the Agreed Facts:

1. The plaintiff suffered the embarrassment and humiliation from the physical, sexual engagement. The evidence of “hickeys”, bruising and abrasion are not identified on the facts as resulting from opposition or protest by the victim, nor from cruel physical treatment by the offenders.

2. The sexual engagement was devoid of affection.

3. The second incident occurred after the victim had been enticed by invitations to only talk but BJ and HA proceeded to penile/vaginal sexual intercourse.

4. The second incident also occurred without BJ or HA using force, intimidation or coercion to compel the victim into sexual intercourse.

5. Throughout the whole of the offending the victim was a 15 and a half year girl old alone in the company of BJ, HA, DM and the unknown male; these being circumstances where she was in a position of vulnerability and was deserving of treatment respecting her dignity and personal security.

6. The circumstances that the victim had nowhere else to stay and BJ had accepted KS’s request that the victim stay at his home for the night were additional factors indicating to BJ, HA and DM the victim’s vulnerability.

7. Whilst BJ ceased penile/vaginal intercourse during the first incident when the victim asked and in the second incident, HA ceased penile/vaginal intercourse, apologised and ran from the room when he observed that the victim was bleeding, are facts establishing the boundary of the abject sexual exploitation of the victim as short of intentional physical harm.

8. The agreed facts are devoid of respect or empathy for the victim.

9. The sexual assaults by each of BJ, HA and DM were committed purely for their personal sexual gratification.

10. This is not a case where the offenders went out on a plan to find and sexually abuse a victim. The offending was opportunistic.

12. In relation to each of BJ, HA and DM the objective seriousness of the sexual offences they committed is to be assessed on all of the circumstances. The objective seriousness is not confined the nature of the sex act committed by the offender. While the form of intercourse can be an important factor, it is not to be regarded as the sole consideration. Also important in assessing the objective seriousness are the absence of violence beyond that inherent to the offence, the physical hurt inflicted, the nature of the intercourse not in isolation from the circumstances of what occurred, the humiliation caused to the victim and the duration of the offence: Simpson v The Crown [2014] NSWCCA 23; Armstrong v The Crown [2017] NSWCCA 323.

13. In Armstrong’s case at [35] the Court of Appeal stated, “…there is nothing to recommend the proposition that engaging in sexual intercourse without consent to gratify oneself is in any sense more objectionable than doing so to humiliate and physically dominate another.”

14. Whilst in this case physical force, intimidation, threat and coercion were not employed by BJ, HA or DM; the offences occurred in circumstances where the victim made no invitation and played no part in initiating sexual engagement. She was a single young girl with nowhere else to go late at night.

15. Each offence of sexual intercourse engaged in by each of BJ, HA and DM was degrading and demeaning for the victim.

16. In her victim impact statement the victim described how she felt. She said, “All the emotions and pain that I was going through, it was unexplainable feeling, scared, hurt, violated, insecure, isolated, alone and upset”.

17. The Court is required to be satisfied by facts beyond reasonable doubt including in regard to consideration of what is contained in the unsworn evidence of the victim’s statement: R v Slack [2004] NSWCCA 128 at [62]; R v Tuala [2015] NSWCCA 8 at [57]. No objection was raised to the victim’s statement. In my opinion the above quoted passage from this young victim is such a believable and expected description of a consequence of her experience that I consider it to be appropriate to prefer her words to describe the harm which was, beyond reasonable doubt, caused. During the sentencing hearing counsel for the parties did not respond otherwise to my description of that persuasion of the statement: Transcript, 14 December 2017.

18. There is no suggestion that drugs or alcohol was involved in a relevant sense.

19. The absence of extreme physical violence distinguishes the facts of this case from the facts in Simpson v R, Supra and KT v The Queen (2008) A Crim R 571, [2008] NSWCCA 51. Nevertheless the same following principles apply. In KT v The Queen McClellan CJ at CL stated principles applicable here. His Honour said at [22],

The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation.” [Authorities omitted]

20. At [23],

The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age.” [Authorities omitted]

Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.” [Authorities omitted]

21. At [25],

The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity”. [Authorities omitted]. In determining whether a young offender has engaged in adult behaviour the Court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. [R v Adamson cited.]. Where some or all of these factors are present, the need for rehabilitation of the offender may be diminished by the need to protect society.

22. Section 6, Children (Criminal Proceedings) Act ('CCP Act') lists the principles to which the Court is to have regard when sentencing children. In particular, s 6 provides as follows:

(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.

23. Where the provisions of s 6 CCP Act conflict with the general purposes of sentencing expressed in s 3A CSP Act, any tension is to be resolved through an “instinctive synthesis” based on “a judgment of experience and discernment”: R v AS (2006) 165 A Crim R 100 at [25]-[26].

24. The offence under s 66C(4) Crimes Act, to which each of the offenders has pleaded guilty, is not a ‘serious children’s indictable offence’ (s 3 CCP Act) and the Court is therefore not compelled to deal with the offenders according to law: s 18(1) CCP Act. In relation to each of the offenders when exercising its discretion as to whether to deal with them ‘according to law’ or in accordance with Div 4 of Pt 3 CCP Act the Court must have regard to the matters set out in s 18(1A) CCP Act.

25. Section 18(2) provides that the Court, in dealing with an offender in accordance with Div 4 of Pt 3, has and may exercise the functions of the Children’s Court. In addition to the matters listed in s 18(1A) it is appropriate for the Court to consider the nature of the penalty which would be appropriate in the circumstances of the case in light of those statutorily identified matters: R v WKR (1993) 32 NSWLR 447.

26. Each of HA and DM request that the whole or any part of the term of sentence to be served, be served as a juvenile offender pursuant to s 19(1) CCP Act.

27. In relation to each of the offenders the proceedings were brought to the District Court of New South Wales because they were charged with a ‘serious children’s indictable offence’ as defined in s 3 CCP Act. The pleas of guilty accepted by the Crown were not to those offences but to s 66C(4) Crimes Act. If the offences are dealt with in accordance with Div 4 of Pt 4 CCP Act, the offenders will be sentenced under the Children’s Court jurisdiction and subject to a maximum penalty of four years.

28. In AL v R, R v SB and AL [2011] NSWCCA, 95 at [68] Hodgson JA, Adam and Hall JJ agreeing, referring to KT v R said at [4]:

“First… in my understanding considerations of retribution direct attention to what the offender deserves; and in my opinion where emotional immaturity or a young person’s less than fully developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see CTM v R [2008] NSWCCA 158 at [33]-[36].

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there (Children’s (Criminal Proceedings) Act). In my understanding, emotional maturity and impulse control developed progressively during adolescence and early adulthood and may not be fully developed until the early to mid-20s: [authorities cited].

[6] Third, I do not think courts should 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. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection or any other indicia of mature decision-making.”

29. The offenders here are children. The absence of violence, threat or coercion; that the others left the room during BJ’s penile/vaginal intercourse during the first incident; BJ’s readiness to cease sexual intercourse during the first incident when he was asked; that HA ceased penal vaginal intercourse, apologised and fled the room in the presence of BJ and JH during the second incident – are consistent with each of the offenders not being committed to some plan to hurt the victim, but rather that they were selfishly pursuing personal sexual gratification without exercising empathy. This displayed immature decision-making consistent with emotional immaturity and less than fully developed capacity to control impulses. This observation applies to the offenders generally in that they acted with like peer group purpose and individually in their offending.

30. In determining whether the offender is to be dealt with according to law or in accordance with Div 4 of Pt 3 of the CCP Act, it is in my opinion relevant that s 66 C(4) Crimes Act is an indictable offence of prevalence: s 18(1A)(b) and (e). Applying the above referred to adjustment between deterrence and rehabilitation in the sentencing of youth offenders, prevalence weighs to some degree in favour of deterrence.

31. Because the offences were committed by juveniles, standard non‑parole periods, unlike for an adult offender, provide no guidance in sentencing: R v YS [2014] NSWCCA 26 at [5].

32. A young offender’s social disadvantage and dysfunction of upbringing may operate in mitigation of sentence: Bugmy v R [2013] HCA 37; 249 CLR 571; R v YS [2014] NSWCCA 26 at [33], Ohanian v R [2017] NSWCCA 268. Dysfunctional background not only moderates the importance of personal and general deterrence but does so in favour of other purposes of punishment, in particular rehabilitation: Bugmy v R [2013] HCA 37 at [49]; 249 CLR 571 at 596; Ohanian v R [2017] NSWCCA 268; IS v R at [65].

33. Consent is not an element of the offence under s 66C(4). The Court must be careful not to sentence as if for the more serious offence of sexual intercourse without consent of the other person under s 61J. An element of the offence is not sexual intercourse whilst knowing that the victim was not consenting.

34. The Crown submits that each offender’s ‘attitude’ described in the Juvenile Justice Background Reports reflects a lack of insight to the nature of their offending and reflects an ongoing high level of disrespect for the victim: (transcript p 17, line 3). In order to follow the guidance provided by the CCP Act and case authority, particularly in regard to youth and immaturity, rehabilitation and deterrence, the Background Reports are dealt with in relation to each offender below.

35. The Crown submits that an aggravating factor is that the victim suffered the abrasion/laceration described by Dr Norrie and recorded in the Agreed Facts. Obviously injury consequent of this offence is an aggravating factor; but in this case it was a superficial injury, not identifiable with any violence or act identified as intended to cause it. There is no evidence of violence or cruelty. The injury is part of the evidence of the physicality of the offences of sexual intercourse, but in my opinion, on the Agreed Facts, it is not available to describe it as more highly an aggravating than that.

36. Counsel for each of the offenders refers to the victim twice remaining silent and continuing sexual engagement during the first incident, returning to the lounge room with the offenders before the second incident. The Agreed Facts do not describe physical or voiced coercion by any of the offenders or physical or voiced protest or objection by the victim. The defence submissions concerning the victim’s willingness can therefore be dealt with as of common application in sentencing each of the offenders.

37. The degree of the victim’s willingness or reluctance of participation in the context of the conduct making the offences is a question of fact to be assessed in all the circumstances. That the offenders observed the victim’s silence to the inquiries seeking her consent and the fact that she returned to their company in the lounge room between the first and second incidents are matters to be observed in the context of her having no other place to sleep that evening other than in premises then occupied by the offenders and having telephoned her boyfriend in an attempt to avoid that scenario. It is significant that her consent was sought, but also significant is opportunistic youth engaged hormonal sexual drive devoid of empathetic romance based sexual conduct, immaturity of decision-making and objectification of the victim. These matters are to be assessed separately when sentencing each of the offenders for their criminal conduct in the circumstances.

38. This is not a case where the victim had socially engaged with and sought out the company of the offenders. She had not chosen to be in their company at all. They were strangers. In a case such as this and between each of the offenders there can be a wide range of objective seriousness found: R v KB; R v JL; R v RJB [2011] NSWCCA 109 at [53] and [62].

39. The offenders being adolescents and not charged with responsibility for the victim such as is recognised to arise at law in the adult responsibility for child scenario; they were not in a position of trust or authority in relation to the victim within the meaning of s 21A(2)(k) Crimes (Sentencing Procedure) Act. Nevertheless, that they knew the victim had nowhere else to go but to stay with them and that she was alone with the three of them were factors which, in my opinion, made each of them aware that to some degree she was in a position of disadvantage and compliant with their chosen course of conduct. In my understanding, adolescents are aware of peer group influence upon a lone stranger in the company of a group. All of those factors contribute to an assessment of the objective seriousness of the crime: Rainbow v R [2018] NSWCCA 442 at [23] to [31].

40. In relation to the issue of willingness of the victim, the Crown and counsel for each of the offenders referred to Wakeling v R [2016] NSWCCA 33. The facts in Wakeling were of a gross imbalance of power of authority over the victim. The circumstances of aggravation in that case did involve adults in an organised relationship of trust – adult parent offenders and the adolescent babysitter of the child, the victim. Sentencing in each case must be determined on its facts. Reference to case authority must be approached recognising the limitations of their guidance: Hili v The Queen, Jones v The Queen (2010) 242 CLR 520 at 537; [2010] HCA 45 at [53]. The facts and subjective circumstances between cases vary widely consistently with the ambit of conduct embraced by the offences as well as the very background and circumstances of the offenders: Rainbow v R supra at [33]. Also in Wakeling, the victim had repeatedly, both orally and physically, informed the co-offenders that she did not want to participate in the ‘threesome’ and there was coercion in that the male adult threatened to hit his wife unless the victim participated in the threesome sexual intercourse. Whether the victim was a willing participant, notwithstanding her age was, relevant: Wakeling v R supra at [47].

41. Careful consideration of the Agreed Facts of the present case, in my opinion, shows that the victim participated to the extent of doing so without protest when not under the duress of threat or coercion (as already identified) but when her liberty of free choice was diminished by the circumstances of being alone in the location of stranger boys (the offenders) who adopted a course of conduct, when she had nowhere else to go. There is no suggestion, for instance that she initiated the sexual engagement. Beyond that, the agreed facts do not permit an expression of the victim’s willingness and certainly not of enthusiasm for the sexual intercourse.

42. I repeat, the ‘circumstances of aggravation’ in relation to each indictment were singularly that the offender was in company: s 66C(5) Crimes Act. That element is not an aggravating factor for the purposes of s 21A(2)(e) Crimes (Sentencing Procedure) Act.

43. I have found the victim’s impact statement to describe expected significant emotional harm resulting from the offences. I have found the physical injury to be not intended or the result of cruelty or violence and therefore the physical and emotional harm which resulted from the offending is not significantly above that which is inherent of the offences. I find that there is no significant aggravation for the purposes of s 21A(2)(g) Crimes (Sentencing Procedure) Act.

44. The task of sentencing each of the offenders demands consideration of parity between the sentences justified by a consideration of differences in the degree of culpability of the offenders or in their personal circumstances: OM v R, MH v R, AA v R, ASB v R [2009] NSWCCA 267 at [62]. The principle of parity apples to all aspects of sentencing, including the non-parole period, and is concerned with ameliorating a justifiable sense of grievance on the part of the offender. There is no breach of the principle of parity where sentences vary because of findings as to personal circumstances including findings as to whether special circumstances exist: R v Do [2005] NSWCCA 209 at [18].

Offender BJ

45. BJ was born on 27 December 2001. At the date of his offending, 21 May 2016, he was 14 years and six months of age. He is described as of thin build, 150 centimetres to 160 centimetres in height and 50 to 60 kilograms in weight. Those statistics, consistent with his appearance in Court, describe him as obviously youthful and not of large physical presence.

46. He has pleaded guilty to three Counts on the indictment under s 66C(4) Crimes Act. The events of sexual intercourse described in the agreed facts are as follows:

1. Count 1: during the first incident BJ put his penis in the victim’s mouth;

2. Count 2: during the second incident BJ had penile/vaginal sexual intercourse with the victim; and

3. Count 3: during the first incident BJ had penile/vaginal intercourse with the victim.

47. Chronologically, the offences occurred in the order of Count 1 and Count 3 occurring during the first incident and then Count 2 during the second incident.

48. Prior to Count 1 BJ had observed the 17 year old DM position himself between the victim’s legs and near her genitalia and then pull her pants off. The unknown male asked whether the victim consented, to which she did not respond. DM put his finger in the victim’s vagina. The unknown male placed his hand on the victim’s breast and placed the complainant’s hand on his penis asking “Is that all right?”.

49. These were observations by the younger BJ of the sexual participation of the victim, the unknown male and DM who was three years older than BJ. It is in the context of that course of sexual activity that the first Count is placed. He was the youngest male and indeed younger than the victim. He was not the initiator of the sexual contact.

50. The sexual contact, the fellatio of Count 1, was an act not mimicking or following any preceding sex act of that nature. BJ had, preceding the fellatio, been trying to kiss the victim. The agreed facts do not contain any description of the victim kissing him. The Count 1 fellatio by BJ occurred in the company of the unknown male and DM whilst HA stood at the door. In my opinion, it was an act reflecting objectification of the victim. After allowing for the immaturity of decision‑making according to his age of 14 years, it was an activity of conscious culpability performed whilst well knowing that which he was doing was wrong.

51. In my opinion, the Count 1 offence was of serious objective gravity but not of most serious objective gravity for the offence under s 66C(4) because it was sexual intercourse between persons of approximately similar age and not perpetrated by an adult in the position of authority and trust. Most significantly, it was opportunistic and it did not involve violence, physical force or coercion.

52. In regard to Count 2, the first incident ended when BJ had ceased penile/vaginal intercourse with the victim. She then re-joined the offenders and an unnamed male in the lounge room to watch TV before joining BJ and HA on a bed in a bedroom on their invitation that they only wanted to talk.

53. That the victim did not refuse to enter the bedroom whilst immediately possessed of the experience of the first incident might on, the one hand, suggest her willingness. On the other hand, in the social intercourse between the individuals it is equally significant that BJ and HA assured her that they only wanted to talk. Voicing the invitation to only talk may indicate that BJ and HA were unsure of the victim’s willingness to participate in sexual intercourse with them. In my opinion, a determination of degree of the victim’s willingness at the time of accepting the invitation cannot be made on the facts.

54. In Count 2 it was BJ who first placed his hand inside the victim’s underwear and he touched her vagina. He was not imitating or following the behaviour of the older HA. On this occasion he was an equal participant in that behaviour.

55. In my opinion, the objective seriousness of Count 2 was of serious objective gravity but not of most serious objective gravity for the offence under s 66C(4) because, as earlier identified, it was sexual intercourse between persons of approximately similar age and not perpetrated by an adult in the position of authority and trust or with violence or coercion.

56. Count 3, penile/vaginal sexual intercourse by BJ followed and imitated sexual behaviour by the older DM and by the unknown male. The age of the unknown male is not given. It is significant that BJ ceased the sexual intercourse when the victim told him to stop as she needed to smoke a cigarette.

57. In my opinion, Count 3 was of serious objective gravity but not of the most serious objective gravity for the offence under s 66C(4) because, again, it was sexual intercourse between persons of approximately similar age and not perpetrated by an adult in the position of authority and trust or involved violence or coercion.

58. That BJ followed in the continuation of a level of sexual intercourse being penile/vaginal intercourse participated in by others before him and ceased when asked, mitigates what would otherwise be a higher gravity of criminality and culpability of the objectification of the female victim by his participation as the third in line for intercourse of that type with her.

47. In my opinion, emotional immaturity of his 14 years of age in the peer group environment of participating with older adolescents indicates lower objective seriousness than their offending.

48. As observed, BJ was at the lower end of age maturity for the formation of mens rea. The victim was in the higher age maturity range for offences under s 66C(4) of which consent was not an element. Section 66C(4) is plainly directed to protection of vulnerable children from exploitation and violation before achieving a maturity at which they might exercise sufficiently independent and responsible decision-making in giving or refusing consent. The Court must fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and of course questions of totality: Pearce v R [1998] HCA 57; 194 CLR 610. There is no general rule of law that determines whether a sentence must be concurrent or consecutive. The decision is a discretionary one.

49. The Count 2 sexual intercourse followed the interruption of time, the victim having gone outside to smoke a cigarette after watching television in the lounge room. In my opinion the Count 1 and Count 3 offences occurred during a continuous course of criminal sexual conduct of BJ, DM and the unknown male. For that reason there should be substantial accumulation of sentences for Counts 1 and 3. Each offence contributed to the total criminality and the appropriate sentence must reflect the criminality of the totality of those offences: Franklin v R [2013] NSWCCA 122.

50. Count 2 occurred at the same location, albeit in a different room, with the same victim and was a re‑commencement of the earlier course of sexual engagement. It occurred following a fresh initiation by BJ and HA inviting the victim away from the lounge room to the bedroom and when representing it was just to talk. For those reasons there should be a partial accumulation of sentence for Count 2 with Counts 1 and 3.

Antecedents

63. BJ’s antecedents include three offences in mid‑2015 of supply a prohibited drug. He was at conditional liberty pursuant to his sentence for those offences at the time of the present offending. Prior to the present offences he had been called up for breach of bond on 14 October 2015 and on 22 February 2016 for intentionally mark premises without consent and for shoplifting. Accordingly, at the time of the present offences he was on further conditional liberty for breaches of his prior bond. BJ had not previously been charged with sexual offences.

64. The first step before sentencing for the subject offences is to consider sentencing for the breach of bonds and breach of bail. Given he remained in custody from the date of this offence 21 May 2016 it is appropriate to accumulate those breaches into the sentencing to some degree.

65. BJ’s custodial history includes admission to Cobham between 10 and 23 September 2015.

66. According to the Agreed Facts on Sentence for the antecedent supply drug offences, BJ’s father EJ recruited BJ’s mother SJ and brother to assist him in selling prohibited drugs. His father, EJ, was identified by investigators as the principal supplier of heroin throughout Sydney west including Parramatta, Blacktown, St Marys, Kingswood, Blue Mountains, Werrington County and Mount Druitt. BJ worked with his father EJ using his father’s customer base to sell cannabis cultivated at the home of EJ and EJ used BJ to deliver drugs transacted by EJ. BJ stored cannabis and money he received from sale of it in a box under his bed. The offences included supply of two $10 deals and one $20 deal of cannabis between 12 July and 20 July 2015. BJ was then only 13 years of age.

67. The Background Report summarises the antecedent history as that on 10 September BJ was arrested and remanded until 23 September 2015 on account of the offences in breach of bond granted on the drug supply offences. On 20 July 2016 those matters were finalised, BJ being sentenced to a two year Good Behaviour Bond which included supervision of the service. The order was due to expire on 19 July 2018.

68. Consequent of the above offences on 21 May 2016 BJ was apprehended on 22 May 2016 and has remained on remand. He was initially held at Reiby Juvenile Justice Centre. He was transferred to Cobham Juvenile Justice Centre on 12 December 2016.

69. Since entering custody BJ has received 19 misbehaviour reports including disobedience, subversive behaviour, defiance, harassment, bad language, damage to property, possession of unauthorised article, unauthorised telephone calls, unauthorised use of equipment and fighting.

70. It is important to note that overall feedback from Cobham Juvenile Centre staff is that BJ’s behaviour has improved over the term of his remand. He is presently acknowledged as generally maintaining positive relationships with staff, co‑detainees and participating in programs offered to him.

71. In consideration of his youth whilst in juvenile detention the overall comment of improvement of his behaviour and compliance is important because it shows a positive rehabilitation direction.

72. BJ’s family home circumstances have provided him with dislocation by moving and a family environment including criminality. He has lived in Bankstown, Merrylands, Punchbowl, Toongabbie, Werrington and Mount Druitt. His father has been incarcerated for periods leaving his mother as a sole carer. Whilst in Mount Druitt care and supervision was provided in conjunction with his paternal grandparents. The supply drug offences, on the Agreed Facts, identified the home as a place of dealing. The family home is a granny flat located immediately behind the primary residence of the paternal grandparents.

73. BJ’s parents separated in 2008 when he was six years of age. His parents’ disagreements centre around his father’s ongoing heroin use. During periods when the parents were separated, BJ and his brother remained with their father. Department records indicate that the father exposed his children to substance abuse within the home including heroin, cannabis and at times methamphetamine and ice, since they were young children. His father suffered a medical episode, possibly stroke, whilst incarcerated which has resulted in his loss of mobility.

74. At the date of the report EJ was on remand at Long Bay Correctional Facility awaiting sentencing on 9 February 2018.

75. When BJ was released from Cobham on 23 September 2015 both his parents were on remand and his grandparents took over primary care. His siblings have also been involved in criminality and been incarcerated.

76. BJ’s grandfather, with whom alone he and his brother were residing at the time of the offence, attempted to exclude BJ and his older brother’s peers from entering the granny flat where the offences occurred because he was concerned about the use of illicit substances whilst there. However he conceded that he had limited control.

77. Since being on remand BJ’s mother has maintained regular telephone contact and visits. He has been allowed monthly inter jail telephone contact with his father and with his brother when his brother was incarcerated at Silverwater and Long Bay Correctional facilities.

78. BJ’s grandparents were not charged with drug related offences. Since 2016 his grandmother has been in a nursing home, leaving supervision of himself and his brother to their grandfather alone.

79. Upon release BJ intends to return to the family home in Mount Druitt to reside with his grandfather, mother and older brother.

80. The above recounted dysfunctional upbringing has provided BJ with limited positive supports and he has not had the benefit of positive role models within his family unit. The Juvenile Justice Community Service psychological assessment is that this environment put BJ and his siblings on a path towards an offending lifestyle. His home environment may have desensitised him to and normalised anti-social activities predisposing him to an ability to form pro‑social peer relationships. I quote:

It is also conceivable that the societal norms that BJ grew up in may have condoned certain attitudes towards women and sexual entitlement as can be gleaned from the victim blaming statements in BJ’s account of the offences.

81. BJ attended three different schools before year 6 due to family relocations. His Department of Education records record limited parental supervision outside of school hours, displays of aggression, oppositional behaviour and disobedience towards teachers, as well as fighting and disruptive behaviour. His parents failed to address the school’s concerns of his socialising with an older peer group.

82. BJ was attending year 8 at Chifley Campus, Mount Druitt when arrested. He self-reported a high level of truancy and bad peer group influences.

83. While in custody BJ has engaged well in educational programs. Having found mainstream too difficult, he was transferred to Life Skills, a year 10 course, which he completed. Putland School within Cobham Juvenile Justice Centre confirmed that BJ will be able to continue his education in the community and enter mainstream year 11 in 2018 if he chooses. BJ has engaged in extracurricular programs, including a hospitality and barista course. He has obtained his White Card (OH&S). BJ’s mother has indicated she would like BJ to continue his schooling to obtain his Higher School Certificate.

84. BJ self-reported that the majority of his friends are involved in anti-social or criminal behaviour, currently on remand and/or serving Control Orders, known to police and and/or involved in the Juvenile Justice system.

85. The Background Report comments that BJ’s engagement with an older peer group of anti-social and criminal behaviour, encouraged or normalised his own anti-social behaviour, “therefore impacting on his decision making in relation to his own behaviour”.

86. A Juvenile Justice psychologist commented that:

In terms of his current offences BJ appeared to have committed the offences in the context of negative group dynamics. This may have led to a diffusion of responsibility and diminished the likelihood that BJ reflected on the consequences of his actions at the time.

87. BJ self‑reported use of cannabis since age 12 and having used cannabis on the day of the offences. Whilst in custody BJ has participated in alcohol and drug counselling sessions and completed the ‘Save a Mate’ program. Given his long remand, BJ has remained drug free and has reported some motivation to continue this upon release. Whilst in custody he has been able to focus on fitness, enjoying the gym program. He says he would like to continue the pursuit of fitness when released into the community.

88. BJ has been assessed as a young person who disregards rules and accepts limited responsibility for his actions and subsequent behaviour.

89. BJ acknowledges his commission of the offences, but does not acknowledge personal responsibility for initiating the physical contact with the victim, deflecting responsibility to the victim for her participation.

90. He told the Report’s author that he became sexually aware at 13 years of age and had accessed pornography on the internet, watching young adults having sex. He reported no deviant sexual beliefs or pre-occupation with sex.

91. It is significant that BJ is recorded in the Background Report to have been unable to articulate empathy for the victim or to acknowledge any harm done. It is described that his comments reflected, “victim blaming and cognitive distortions such as minimisation and justification” on the basis of her participation.

92. The Juvenile Justice psychologist assessed the offending as opportunistic rather than pre-meditated.

93. The Juvenile Justice psychologist recommended that BJ would benefit from undergoing a combination of psycho‑educational, delinquent focused and sex offender interventions in the following areas: improving and understanding the appropriate sexual boundaries and norms; healthy relationships, consent and respect; developing consequential thinking; understanding risk and developing strategies for future safety planning; challenging cognitive distortions around minimisation and justification; increased awareness of victim issues; and monitor peer associations and influences.

94. He was assessed as eligible for sentence to a community based order under s 33(1)(a) to (e) Children (Criminal Proceedings) Act, but unsuitable for a Community Service Order due to the nature of his offences.

95. Forensic psychiatrist, Mr Borenstein, by report dated 30 November 2017 commented that BJ would like, during years 11 and 12 of school, to study drama, which he had enjoyed during the educational syllabus in juvenile detention. Mr Borenstein recorded a description of the subject offences by BJ which does not match that with the Agreed Facts. This sentencing proceeds on the basis of the Agreed Facts of the offence only. BJ told Mr Borenstein that he had not received sex education either from his parents or at school. Mr Borenstein reported that BJ’s ability to perform proper judgment and make sound decisions was impacted by his young age, low average IQ and EQ, compounded further by chronic marijuana use leading up to and during the index offence.

96. In a letter to the Court by BJ’s grandfather, SJ, dated 12 December 2017, he acknowledged that BJ “was not perfect”, but that he was shocked that he committed offences of the subject nature. SJ says that when he has contacted BJ in Juvenile Corrections Detention, BJ stated that he wants to go to TAFE to get a trade licence and achieve gainful employment, earning a living to support his mother and that he never wants to go back to jail again. SJ confirms that BJ’s father and brother have been in and out of jail and failed to provide suitable role models.

Section 18(1A)

97. I am satisfied that the seriousness of the offences and the nature of the criminality involved, taking into account BJ’s dysfunctional upbringing and recognising that these are first offences of a sexual nature, warrant that he be dealt with according to law.

98. For the purposes of s 5(1) of the Crimes (Sentencing Procedure) Act, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

99. I take particularly into account that there is no evidence of coercion or threat employed in the perpetration of these serious offences. BJ’s immaturity of decision making, BJ being 14 years of age and of modest intellect, to some extent and in particular in regard to Count 3, caused him to follow the actions of the older peer DM. The criminality involved in each of the offences imposed humiliation and objectification upon the victim. The culpability of these offences warrants a substantial period of juvenile detention to provide adequate punishment. His young age and dysfunctional upbringing mean that rehabilitation is important and denouncement less so. Those qualities of BJ’s upbringing have caused him from a very young age to present a risk to the community. Juvenile detention to protect the community combined with his undergoing rehabilitation services is required to protect the community. Anything less, in my opinion, would fail to make him accountable for his actions. This is particularly so given his lack of remorse for the harm done to the victim.

100. His youth and the protection of the community through his rehabilitation prioritise a lengthy period of parole supervision. His period of remand has been his first substantial period in detention and it has provided him with improved education and encouraged him to improve his behaviours, as reported. His sentencing should focus upon assisting him in his reintegration into the community and to address long term treatment needs, including in relation to sex offending. For these reasons I find special circumstances.

101. Given that there are three Counts of the same offence concerning the three acts of criminal sexual intercourse with the same victim at the same location and on the same evening, as well as in consideration of the youth of BJ, in my opinion, imposing an aggregate sentence pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act is appropriate.

102. I am required to record the term of the sentence which would have been imposed for each offence. The single non‑parole period to be fixed under the aggregate sentencing provisions represents the minimum period that BJ should spend in juvenile detention, having regard to all the elements of punishment, including the objective seriousness of the offences, specific and general deterrence, rehabilitation, denunciation and the subjective circumstances of BJ.

103. The discount on account of pleas of guilty is reflected in the indicative sentences.

104. I have found special circumstances that BJ will benefit from a long period of supervision on parole. Indicative sentences that would have been imposed for each offence are: Count 1, 3 years; Count 2, 4 years; Count 3, 3 years, 6 months.

105. The overall sentence must be just and appropriate to the totality of the criminal behaviour. That totality is reflected in the aggregate sentence imposed. BJ has been in Juvenile Detention since 22 May 2016 and it is important that his sentence avoids a total term which may be crushing upon him, in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release.

106. In respect of these charges, BJ is sentenced to an aggregate sentence of juvenile detention of four years, taken to have commenced on 22 May 2016, and which will expire on 21 May 2020.

107. I set a non‑parole period of two years, commencing on 22 May 2016, and which will expire on 21 May 2018. The earliest date on which BJ will be eligible for release on parole, is therefore 22 May 2018. I direct BJ to accept the supervision and guidance of the Juvenile Justice and Corrections, and obey all reasonable directions of that service.

Offender HA

108. During the first incident, HA stood in the room near the door and did not physically engage with the victim. During that observation he witnessed both enquiries of consent and that the victim did not protest. He witnessed the offences of BJ (Counts 1 and 3), of DM (Count 1), and of the unknown male. He left the bedroom whilst BJ was having sexual intercourse with the victim.

109. After the intermission during which the victim was in the lounge room watching TV with the offenders and the unknown male, HA and BJ initiated the sexual intercourse of the second incident by the invitation to the victim, that she come to the bedroom and to the bed to talk. When in the bedroom, it was HA who sat on the end of the bed and commenced touching the victim in the area of her vagina, whilst she was clothed. With BJ, he removed her underwear. It was he who was on top of the victim during penile/vaginal intercourse when the lights went on, and he, on seeing the victim’s blood, ran from the room, saying he was sorry.

110. At the time of the offending, HA was a few days past his 17th birthday. He was of large build, being 180 to 185 centimetres tall, and 80 to 90 kilograms in weight. Counsel for HA submitted his acceptance that the Count 2, penile/vaginal penetration was, “a significant act of intercourse”. The Count 1 offence of standing in the room near the door during the first incident, was an offence according to the principles of joint criminal enterprise and common purpose.

111. There is no evidence of HA encouraging or otherwise positively participating in the offences during the first incident, other than his standing‑by in the room would indicate. In my opinion, that lowers the criminal culpability of his Count 1 offence and his moral responsibility for the physical offences committed by BJ, DM and the unknown male. His presence contributed to the humiliation and the objectification of the victim.

112. Unlike the offending of BJ, HA was older than the victim. Taking purely the mathematical age, when considering the relative positions of power between the participating individuals who were strangers; that HA was a large 17 year old youth and the victim was a 15 and a half year old girl, that differential was significant. Of course I do not make this point to suggest the authority of adulthood such as in Franklin v R and Wakeling v R but nevertheless, in the adolescent peer influence realm in my opinion HA's leadership of conduct would have been more influential including upon the victim than the conduct of BJ.

108. The increased age and maturity of HA elevate the objective seriousness of his penile/vaginal intercourse above that of the criminal gravity of BJ's like sexual acts (BJ's Counts 2 and 3).

109. Because Count 1 did not involve any physical contact between HA and the victim it falls into the lower range of objective seriousness for this type of offence. Count 2 did not involve violence, threats or coercion, albeit it did involve objectification and humiliation of the victim. Count 2 involved a serious objective gravity of criminality but not the higher range of gravity for this type of offence such as where violence and intimidation is employed by adults in authority over the victim. Again, that the offence was committed in company is not an additional aggravating factor, it being an element of the offence.

Antecedents

115. HA’s antecedents include him being sentenced in the Children’s Court for matters of violence including affray and two separate instances of robbery in company. His other offences include graffiti, shoplifting and property damage. He had undertaken short periods of detention and a more substantial period between 12 December 2015 and 11 March 2016 when he was released on parole with supervision for robbery in company.

116. Following the subject offences he was arrested on 23 May 2016. The subject offences were committed whilst he was on conditional liberty. In written submissions counsel for HA conceded that his prior criminal record disentitled him to leniency for a first time offender. Counsel for HA conceded that his breach of a number of forms of conditional liberty was a significant aggravating factor.

Commencement of Sentence

117. HA was arrested on 23 May 2016 and has remained in custody. When arrested for the subject offence he was subject to bail for commission of the offence of robbery in company. On 28 September 2016 the Children’s Court of New South Wales sentenced him to a control order for 18 months with an 8 month non-parole period in respect of the robbery offence. That sentence was backdated to account for pre-sentence custody on account of his arrest for the subject offences. He has been in custody solely referable to the subject offences since the expiration of that non-parole period on 27 January 2017.

118. His counsel submits that the commencement date for sentence of the subject offending be backdated beyond 27 January 2017 according to the Court’s discretion in regard to the principle of totality of sentencing, noting that the combined sentences for the robbery offence and for the subject offences all form a continuous period of custody. HA having already received the benefit of that backdating of commencement of his sentence for robbery partial accumulation is appropriate to reflect the criminality involved. His sentence is to commence on 27 October 2016.

Subjective Factors

119. Having considered the evidence of prior offending in the Crown sentence summary I am of the view that the Background Report for the purposes of sentencing HA as a young offender helpfully summarises his attitude toward criminality. HA commenced Juvenile Justice supervision in July 2015 and having been subject to multiple community based orders including good behaviour bonds, probation orders and parole with a history of breach actions and revocation of parole, the reported observation is “due to these issues coupled with HA's low motivation to change his offending lifestyle whilst in the community little progress was made in addressing is offending behaviour.” He was observed to, at the time, have adopted a set of pro-criminal beliefs and that he was becoming increasingly entrenched in offending and being made subject to repeated incarcerations. HA has been detained in custody by Juvenile Corrections on remand on five occasions, in addition to completing two control orders.

120. The substantial period in custody is reported as having achieved his cooperation and significant positive outcomes. They include: he is currently Stage 3 on the Corrections Incentives Scheme designed to encourage pro-social behaviour across the unit and programs. Stage 3 is the highest level and HA has received the incentive reward for 40 weeks to the date of the report (11 December 2017). Summary information records: “Staff are glowing in their assessment of HA and his ability to comply with directions, rules and peers.” HA is presently assessed by Corrections staff as a mature young person afforded a high level of trust due to his ongoing positive attitude and behaviour in custody. There is only one breach for misbehaviour recorded during detention and that involved conflict with his co-offender, DM.

121. Whereas prior to incarceration, his school attendance was poor, he is currently undertaking year 12 studies via the Girrakool Education Training Unit and has demonstrated a high level of maturity and responsibility toward his studies. He is a positive self-motivated student working hard in class. He has participated in a number of sporting and cultural activities indicating pro-social attitudes to be contrasted with his anti-social preceding behaviours. HA has completed his Work Health and Safety ‘White Card’ and has obtained his first-aid certificate. HA is focused on engaging and developing some financial independence and responsibility as a member of the workforce. Whereas his antecedents highlighted a pattern of alcohol related offending, HA has engaged in a specific intervention program targeted at addressing this issue. Juvenile Justice psychological assessment found HA as being in the borderline intellectual functioning range but not meeting the criteria for an intellectual disability.

122. The above history of compliance and cooperation with Corrections supervision, education and rehabilitation observed in the Background Report obviously contrasts with previous admissions and his prior direction toward entrenched offending and criminality including disregard for the rules and norms of society.

123. Importantly, the Background Report observes that HA’s conduct during detention may indicate a growing level of maturity and ability to adapt in new environments.

124. HA is the eldest of six children and has grown up exposed to domestic violence in the home. His father employed physical violence against him in order to achieve control and his parents persisted in denial of his offending behaviour. The Background Report observed inconsistent parental guidance, boundaries and consequences contributing to an environment whereby HA forged his independence through pro-criminal identity. HA’s father and younger brother have involvement in the criminal justice system. He has a very close relationship with his mother who seems to have attempted to protect him during his experiences of domestic violence.

125. Due to cultural reasons, sex is not spoken about in HA’s family home.

126. HA has described a more positive and supportive relationship having developed with his father in recent times. Upon release, he expects to return to the family home.

127. The White Card and first-aid certificate might be of assistance to HA in gaining employment through his brother-in-law in a concreting business. His sister, MP, has written advising that she is an employed mother and that she and her husband are willing to supervise and mentor HA and take him into their home if required as well as attempting to find him employment upon release.

128. Juvenile Justice recommend assessing HA’s criminogenic needs with the following programs: psycho-sexual education including health relations and sexuality; psycho-sex education around consent and the law; intervention around victim awareness issues and HA’s cognitive distortions including denial, rationalisation and minimisation of his sexual offending; further education regarding peer pressure and bystander ethics; intervention focused on addressing beliefs supporting the use of violence and aggression to get his needs met; education and motivation directed to alcohol use; and support in age appropriate pro-social and vocational activities.

129. The Background Report recorded that HA could not offer much insight into his thought process leading up to the penile/vaginal intercourse of Count 2 other than that he quickly felt sexually aroused and proceeded. HA did run from the room when the victim was observed to be bleeding following Count 2, but the Background Report records that he expressed limited concern for his actions and for harm of the victim. He was also concerned for whether he had injured his penis.

130. He is not remorseful. The Background Report records him having expressed attitudes reflective of victim blaming. His feelings of shame were predominately self-centred in nature because he did not want to be identified as a person who commits sexual offences reporting “I am not this person.”

131. HA expressed a willingness to undergo supervision and sex offending intervention.

132. HA was assessed as eligible for a community based order under s 33(1) and under supervision of Community Corrections, Mount Druitt. He was assessed as unsuitable for a Community Service Order because of the nature of his offences.

133. There are two very material aspects for consideration in sentencing HA arriving from the Background Report. They are:

1. that his modest intellectual capacity and dysfunctional upbringing contributed and continue to contribute to his immaturity and inadequate ability to appreciate the effect of his offending on the victim. These matters both mitigate the culpability of his criminality and elevate the need for rehabilitation in regard to which he has expressed a willingness and has shown cooperation. They identify the risk to the community which he poses should he be released into the community without a sufficient period of rehabilitation and supervision directed toward his reintegration and

2. his modest cognitive functioning should be considered as contributing to his being an immature 17 year old at the time of the offending and immature 18 year old at the time of sentencing.

134. I accept the Background Report description of HA’s offending as being opportunistic rather than planned and malicious. However, it was not spontaneous and even allowing for his diminished maturity, he willingly participated in what was plainly an objectifying, humiliating course of conduct which the victim suffered.

135. The Deputy Chairperson of the offender’s local Catholic Tongan Church Council has commented on HA’s mother’s participation in Sunday school and church and rightly observed that it was peer group pressure which contributed to HA offending beyond his mother’s ability to control him.

136. I am satisfied that the seriousness of the indictable offences and the nature of the offending including after consideration of his age and maturity at the time of the offending, particularly, in the context of his antecedent history, require that his sentencing be dealt with according to law pursuant to s 18(1A) CCP Act.

137. Employing instinctive synthesis mindful of the important consideration of rehabilitation diminishing the importance of deterrence and having taken into account a 15% discount on the pleas, the indicative sentences are: Count 1: 6 months detention; Count 2: 4 years, 6 months detention. Counts 1 and 2 involve offences at the same location, with the same victim, broadly in the same company, on the same evening and of participation in offences of a course of criminal sexual conduct.

138. Mindful of HA’s relative youth and to achieve sentencing appropriate for the total criminality of his conduct, pursuant to s 53A CSP, an aggregate sentence will be imposed reflecting that the sentence for Count 2 can substantially comprehend and reflect the criminality of Count 1. The sentence must also reflect the difference in culpability of HA’s criminal conduct according to his greater maturity than the maturity of BJ according to the objective seriousness of his offending including the one count of physical sexual intercourse he committed compared to BJ’s three.

139. I have had regard to s 5(1) of the CSP Act and to s 3A of that Act and after canvassing all options there is no alternative other than full time imprisonment.

140. I find special circumstances on account of HA’s youth and the importance of continuing his positive rehabilitation identified in the Background Report.

141. HA is sentenced to an aggregate sentence of 4 years and 8 months detention, taken to have commenced on 27 October 2016, and which will expire on 26 June 2021. I set a single non‑parole period of 2 years and 4 months, taken to commence on 27 October 2016 and expiring on 26 February 2019. The earliest on which HA will be eligible for release on parole, is therefore 27 February 2019.

142. HA achieved his majority on 17 May 2017. On 27 July 2019, he will be 20 years of age and achieve 21 years of age on 17 May 2020. Pursuant to the provisions of s 19 of the CCP Act, I direct that the whole of the term of the sentence until HA achieves 21 years of age on 17 May 2020, be served as a juvenile offender and thereafter his sentence, whether whilst in detention or under supervision on parole, be served by imprisonment or is supervised by Community Corrective Services.

143. I direct HA to accept the supervision and guidance of Juvenile Justice and Corrections, and the Community Corrective Services, in accordance with these orders for sentence and obey all reasonable directions of those services as applicable.

Offender DM

144. DM was born on 26 September 1998 and was therefore 17 years and 6 months of age, at the time of the offence. He is 19 years of age at the time of sentencing.

145. DM was arrested on 27 July 2017 and remained in custody until 21 September 2016, when he was released on bail. He was re‑arrested on 24 September 2016 and has remained in detention.

146. The single Count of the indictment relating to DM, involved penile/vaginal intercourse during incident one. DM asks that the Form 1 offence of digital penetration of the victim’s vagina, being another offence under s 66C(4), be taken into account. This event followed the first enquiry of consent by the unknown male but was the initiating physical sexual intercourse with the victim, preceding fellatio account committed by BJ and preceding the penile/vaginal penetration by the unknown male during the first incident.

147. DM also initiated the physical sexual course subsequently followed by himself and the other offenders, as well as the unknown male. He did this by positioning himself between the victim’s legs whilst she was on the bed, and then by pulling her pants off and throwing them on the floor. At the time of taking that initiating action, he was the oldest of the offenders, being only 6 months short of obtaining his majority.

148. The Court is to impose a sentence appropriate for totality of the criminality before it on the indictment, whilst taking into account the criminality of the Form 1 offence. This may mean that the sentence passed is greater than that which would have been appropriate for the offence on the indictment standing alone: Vougdis v R (1989) 41 A Crim R 125. There is no hierarchy between the physical sexual forms of intercourse and the criminality of each is to be assessed in the circumstances.

149. The objective gravity of DM’s leadership in offending makes it more serious than that of HA or BJ, albeit each of them committed multiple offences. His age maturity makes his conduct of greater criminality than that of BJ. For the same reasons as stated in regard to the other offenders, each of his offences on the indictment and on the Form 1, were serious offences of the type, but for the same reasons, not at the higher level of objective seriousness for offences under s 66C(4).

150. Unlike BJ and HA, DM did not breach conditions of conditional liberty. He was not on bail, under bond or on parole at the time of the offending.

151. DM’s antecedent juvenile record commences when he was 14 years of age and includes robbery in company at 16 years of age; stalk, intimidate and intend to cause fear arising from a domestic dispute; assault police officer in execution of his duty; and resist police officer in execution of his duty. When almost 18 years of age, again, resist or hinder police officer in the execution of his duty. Agreed Facts of the prior robbery in company, and assault police officer, were not available. At the sentencing hearing, DM instructed his counsel to accept the general circumstances of offending included robbery on a train involving a few young people and theft of a phone, and that assault and resist police involved spitting on the jumper of an officer and running away.

Subjective Factors

152. According to the Background Report, when DM was first subject to supervision of Juvenile Justice in 2013, pursuant to a 6 month good behaviour bond for the offence of robbery in company, his behaviour was good and therefore his supervision was suspended early. He was supervised under a 9 month good behaviour bond, for stalk, intimidate, intend fear (domestic) offence in 2016, and a good behaviour bond for the offence of resist or hinder police in the execution of his duty in 2017. Whilst a Background Report says that DM was subject to bail from the Supreme Court at the time of the offence, the Crown said in its sentence summary and in oral submissions that he was not subject to conditional bail. (Transcript p 18, line 18). I proceed on the basis of the Crown’s submission.

153. Whilst in custody DM has received 41 punishments for misbehaviour. His most recent punishment being on 23 November 2017. He has participated in at least six fights with other detainees and the majority of his punishments have been for disobeying staff directions and harassing staff. Despite his negative behaviour he has reached the highest available level on the Juvenile Justice custodial incentives scheme of Third Stage. He has set goals for attending school and addressing his negative behaviour. He has progressed to showing the ability to engage appropriately with both staff and other young people when he chooses to do so.

154. There is no antecedent offence of a sexual nature. The Background Report observes his escalation of seriousness of offending from divergent offences and that his offending displays a pattern of violation of rights of others.

155. DM identifies as culturally Liberian having left Liberia at a young age, living in Guinea with his grandmother and extended family and grandparents before migrating to Australia as a refugee in 2005 in the care of his grandmother whilst his parents remained in Guinea. He is dissociated from his biological family to the extent that he finds difficulty in identifying the members of the family and was not able to state the first name of his biological father.

156. Whilst originally cared for by his grandmother, until 2013 he resided at a youth refuge. In Australia he was subjected to severe physical discipline and neglect by his uncles. From 2013 until 2016 DM regularly moved between youth refuges and the houses of his uncles, aunts and grandmother. The Background Report observed that DM’s negative behaviour may have been addressed through either physical punishment or isolation from his family and that the corporal punishment perpetrated against him has had a traumatic impact on him. Plainly he has not had stability in his upbringing, engaged as he has been in cross cultural differences, confusion regarding his primary carers and being subject to violently imposed punishment and control by those in whose care he was placed.

157. He attended mainstream school with truanting and suspension until year 10. He enjoyed art and sport. His grandmother said that he fell in with a problematic crowd outside of school.

158. Whilst in juvenile detention DM has attended Putland Education and Training Unit and the Head Teacher reports that he has been generally positive in class, academically able and more competent than most young persons in Cobham Juvenile Justice Centre. He actively engaged in a hospitality and barista course and displayed his finding a sense of worth and accomplishment in that. At Girrakool he has been suspended for problematic behaviour including a pattern of refusing to follow staff directions and then escalating to more aggressive behaviour so that he was withdrawn from Girrakool ETU in late 2017.

152. DM has reported to Juvenile Corrections that he plans to enrol in a business course at TAFE following his exit from custody and start his own business creating brick ovens. Whilst he has an ability to apply himself, he damages his progress by falling into conflict with teachers and others.

153. The Background Report records that DM refused to discuss his participation and subject offence and described the sexual activity as normalised. In a subsequent interview he reported that he was remorseful but nevertheless embarked on victim blaming. Despite this he gained some insight into the effect of a sexual assault when he reported to the author of the Background Report that one of his close friends had been the victim of sexual offence and he had observed how physically and emotionally hurt she was. He displayed empathy toward his friend and was able to identify the negative impact of sexual offence against his friend but did not relate or link the empathy he expressed to the victim of the subject offence.

154. DM self-reported problematic cannabis use in the months preceding the offence which the Background Report opined contributed to the instability of his life, particularly in that his family had asked him to move out.

155. The clinical consultant for Justice Health confirmed that DM was diagnosed with depression, conduct disorder and substance abuse disorder. He is currently prescribed Fluoxetine in order to address his depression.

156. He does not suffer any intellectual disability albeit he may have cognitive deficits particularly in his verbal reasoning.

157. He was observed by a Juvenile Justice psychologist to display defiant and immature behaviour. Overall it was assessed that with maximal effort he would likely be at least in the low average range of intellectual functioning albeit he displays several personality and behavioural concerns, including a history of responding aggressively and displaying inflexible thinking when he has not been able to get what he wants.

158. He was assessed as having the ability to engage in programs when he is motivated and that it is likely that his use of cannabis in the months preceding the offence had a general destabilising effect on his mental health, relationships and accommodation. It impacted on his decision making at the time of the offence.

159. The Background Report recommends that DM would benefit from: social skills training aimed at assisting him in developing positive peer relationships and resisting peer pressure; assistance on gaining employment to further assist with his understanding of socially appropriate norms whilst building pro‑social peer relationships; offence focussed interventions aimed at developing healthy sexual relationships, respecting age of consent, verbal and non-verbal cues for consent and sexual boundaries; and that DM will need ongoing treatment and support with his mental health both in custody and in the community.

160. DM was assessed as eligible for sentence to a community based order under s 33(1) CCP, supervised by Community Corrections rather than Juvenile Justice. He was assessed as unsuitable for a community service order given the nature of the type of the offence.

161. Taking into account the objective seriousness of the offence on the indictment and the offence on the Form 1, the nature of offending, including DM’s lack of remorse and victim blaming in regard to it, being nearly of his majority of 18 years, albeit displaying immaturity at the time of the offence and at the time of sentencing and his antecedents displaying reaction to violence and confrontation including against police; in my opinion, DM is to be dealt with according to law for sentencing for the purposes of s 18(1A) CCP Act.

162. For the purposes of s 5(1) CSP Act, having considered all possible alternatives, I am satisfied that no penalty other than custodial detention is appropriate.

163. The Background Report describes DM as lacking maturity of decision making at the time of the offence and that this has been a central focus of his rehabilitation. His commission of the offence was opportunistic. Again, there was no violence beyond the nature of the offence, threat or coercion. Taking into account his age of 17½ years, the offence did not involve adult planning, but rather occurred in the circumstances of the victim arriving into the company of the offenders because she had nowhere else to stay.

164. In my opinion, it is appropriate to sentence DM with the considerations of sentencing of youth, to some extent diminishing deterrence in favour of rehabilitation. His dysfunctional family background as recorded in the Background Report shows that he has matured to early adulthood in an environment of violence without the opportunity of stability and without appropriate pro-social direction. Promotion of his rehabilitation will provide better protection of the community against risk of him re-offending in the future than punishment more focussed on deterrence. It is appropriate that the punishment denounce his conduct and make him accountable for his actions nevertheless, as well as recognising the harm done to the victim for whom he displays a lack of remorse.

165. Incorporating the discount on the plea, in relation to the single offence on the indictment, including the Form 1 offence, and taking into account his three days of liberty from 22 to 24 September 2016, I sentence DM to a term of detention comprising a non‑parole period of 2 years and 9 months with a total term of 5 years.

166. The sentence is taken to have commenced on 27 July 2016. The non-parole period will expire on 26 April 2019. DM will be eligible for consideration for release to parole on 27 April 2019.

167. Pursuant to s 19 CCP Act I direct that the term of the sentence be served as juvenile offender until he achieves the age of 21 years on 26 September 2019 and from that date pursuant to Community Corrections Services whether by imprisonment or under supervision.

168. I direct that DM accept the supervision and guidance of the Community Corrections Service and obey all reasonable directions of the service.

Decision last updated: 15 May 2018