R v BP

[2023] NSWDC 415

District Court

New South Wales

Medium Neutral Citation:

R v BP [2023] NSWDC 415

Hearing dates:

14 September 2023

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [44] – [47]

Catchwords:

Sentence – aggravated sexual assault by an object – serious children's indictable offence-sentencing according to law – s6 Children (Criminal Proceedings) Act 1987 – production of child abuse material-filming of dry humping-Snapchat – bullying at school – trauma of abuse – child offender – rehabilitation – immaturity – remorse – good character – excellent prospects of rehabilitation – Community Correction Order – not to be treated as a registrable person.

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Children (Criminal Proceedings) Act 1987

CrimesAct1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

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

KT v R [2008] NSWCCA 51

MS2 and Ors v R [2005] NSWCCA 397

Paul Campbell v R [2018] NSWCCA 87

R (a child) v Whitty (1993) 66 A Crim R 463

R v GDP [2008] NSWCCA 51

RvSDM (2001) 51 NSWLR 530

R v WKR (1993) 32 NSWLR 447

Yardley v Betts 1 A Crim R 329

Category:

Sentence

Parties:

Regina
BP

Representation:

Counsel:
Mr Edwards SC (Offender)

Solicitors:
Mr Lawrance (Crown)
Ms Cooney (Offender)

File Number(s):

2022/00098489

Publication restriction:

Non-publication order in relation to the name of the offender, the co-offenders and the complainant, or of any information which may enable their identities to be ascertained.

EX TEMPORE JUDGMENT

INTRODUCTION

1. The offender has entered a plea of guilty to two sequences (sequences 8 and 9) contrary to s 61J(1) of the Crimes Act and s 66DF(a) of the Crimes Act 1900. The maximum available penalty for 61J(1) offence is imprisonment for 20 years with a standard non-parole period of ten years. The offending took place when the offender was a child (15 years of age) within the meaning of the Children (Criminal Proceedings) Act 1987. Therefore the standard non-parole period does not apply for these offences because of the effect of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999. As the offending took place when the offender was not yet 18 years of age. The maximum available penalty for s 66DF(a) offence is ten years. There is no applicable standard non-parole period.

2. The maximum penalties are an important guide in the assessment of sentence. A judge should steer by them but not aim for them.

VALUE OF THE PLEA

3. Pleas of guilty were entered in the Griffith Children's Court on 6 April 2023, the offender is entitled to a discount of 25%.

FACTS

4. At tab 3 of exhibit 1 is a statement of agreed facts which reads, "The offender is BP (date of birth 3 November 2006). The co-accused is JT (date of birth 11 May 2006) and AF (date of birth 26 April 2006). The complainant in this matter is TP (date of birth 11 August 2006). He commenced his studies at the regional High School (the school) at the start of the 2022 school year. The offender, co-accused and the complainant were all year 10 residential boarding students at the regional High School. At the time of the offences the offender, co-accused and the complainant lived in dormitory 5 of Gardiner block together.

5. Dormitory 5 consists of one large open room with one attached closed room ordinarily allocated to a prefect. Each of the four students had their own area in the dormitory consisting the single bed, wardrobe desk and bedside table. The wardrobes each required a lock to secure them shut which students were required to supply themselves. The shower facilities are located down the hallway in another room. Ordinarily a prefect lives in a bedroom within each dormitory to ensure the students behave. The prefect allocated to dormitory 5 was not attending the school at the time of the offending. A week or so before the incident AF was swapped into dormitory 5 to replace another student that had requested to be swapped out to dormitory 4.

6. On Wednesday 9 March 2022 the regional High School held celebrations for its centenary. Students were required to attend a number of formal events throughout the day including a formal dinner. At about 5.20pm the complainant had been inside dormitory 5 with the offender, JT and AF. The complainant left dormitory 5 and showered in preparation for the formal dinner. After his shower he returned to dormitory 5 wearing only his underwear and a towel wrapped around himself. The offender called the complainant over to his area. The complainant came over to the offender's area and sat on his bed. While the complainant was sitting on the offender's bed JT walked over to the complainant, snatched the towel off the complainant and pulled off the complainant's underwear.

7. JT then threw the complainant's underwear out of the dormitory and into the common area outside the door. The complainant now naked retreated to his area of the room. JT and the offender approached the complainant carrying brown leather dress belts. The complainant feared they were going to whip him with the belts and ran out of the dormitory to get away from them. JT the offender chased the complainant out of the dormitory while carrying the belts and threatened to strike the complainant with them. The complainant pleaded with JT and the offender to stop and leave him alone. JT and the offender were not able to catch the complainant and returned to the dormitory taking the complainant's underwear and towel with them.

8. When the complainant, who was still naked, tried to re-enter the room, they held the door shut so he was locked out in the common area. The complainant retreated to the shower area and locked himself inside. After approximately 15 minutes of hiding the complainant returned to the dormitory which was now no longer barricaded. The complainant entered and saw JT and the offender inside but did not say anything. The complainant dressed himself before making his way to the formal dinner.

AGGRAVATED SEXUAL ASSAULT CONTRARY TO SECTION 61J(1) CRIMES ACT

9. After dinner the complainant showered again. At approximately 10pm he re-entered dormitory 5 wearing grey underwear and wrapped in a towel. When he walked in JT and the offender were laughing together in JT’s area of the room and AF was in his area. The complainant went to his area and sat on top of the sheets in his underwear winding down before going to sleep. After some time JT and the offender came over the complainant's area together and told the complainant to bend over. The offender said again, "Bend over or we'll fucking belt you." The complainant feared being assaulted and complied with their demand.

10. The complainant bent over with his knees on the floor and his chest and stomach flat on the bed. JT and the other offender both stood behind him as he was bending over and pulled the complainant's underwear down so that the complainant was naked but for his underwear around his knees. The complainant started to struggle, JT and the offender both laughed. The offender said to JT "Put a lock in his arse". JT laughed and said "Yeah, okay", then retrieved a lock from within the dormitory. The offender was on the complainant's left side and was putting pressure on the back of his head and upper back. JT then unlocked the lock which the complainant heard causing him to say, "No, no, no, fuck off."

11. JT then inserted the unlocked lock into the complainant's anus and twisted it. At around this time AF came over from his area and helped the offender hold down the complainant's right shoulder. The complainant turned his head and saw AF on his right side pushing him down. The offender said the JT "harder" and JT inserted the lock into the complainant's anus further. This caused the complainant pain and he said "Stop, stop, get it out." All three co-accused were laughing as this occurred. After a period of time the offender said, "That's enough. Leave the silly cunt alone." AF let go of the complainant and returned to his area of the room. The offender let go of the complainant and pushed him to the ground and walked back to his part of the room.

12. The complainant looked up and saw JT and the offender returning to their side of the dormitory. The complainant removed the lock from his anus and threw it on the ground towards his wardrobe. The lock was still unlocked when he removed it. He pulled up his underwear, walked towards the dormitory exit and called the co-accused "a bunch of fuckwits." The offender laughed in response. The complainant walked to the verandah nearby and tried to calm himself down. He was in shock and on the verge of crying. He did not know who to report this incident to or how. After a short period of time the complainant decided to return to the dormitory and to go to bed. He got under the sheets and lay awake. He was wearing only underwear when he got into bed.

SEXUAL ACT FOR PRODUCTION OF CHILD ABUSE MATERIAL CHILD UNDER 16 YEARS CONTRARY TO SECTION 66DF(A) CRIMES ACT

13. Between five and ten minutes after the complainant returned to his bed JT, the offender and AF all returned to the complainant's area. JT and the offender said, "Get on your hands and knees." At this time AF was standing at the end of the complainant's bed holding his phone. The complainant heard the offender instruct AF to turn the video on, which he did. AF also turned the phone light on so that the complainant and the co-accused were visible on the video. Again the complainant was frightened of getting hurt by the co-accused and complied with the demand to get on his hands and knees. He got on all fours with his head facing toward AF at the end of the bed and then slumped down so that his chest was on the mattress and buttocks were still up in the air.

14. The offender was standing to the left of AF next to the wardrobe. JT who was wearing white football shorts and a shirt got onto the bed and positioned himself behind the complainant on his knees. JT held the complainant on his hips and started thrusting his groin hard into the complainant's buttocks area from behind. JT was laughing and making moaning sounds throughout the time he was dry humping the complainant. The offender was also laughing and AF was filming the incident. The complainant was saying, "Stop" and asking the co-accused to stop throughout the incident which they ignored.

15. JT dry humped the complainant for a couple of minutes until the offender said, "Give me a turn." JT moved to the side of the bed and the offender kneeled behind the complainant and did the same action of dry humping the complainant. The offender used one hand to hold the complainant's hip and dry humped him. He was fully clothed at the time. While this was happening the complainant said, "Get off" and "Fuck youse." AF was still standing at the foot of the bed and watching the video of JT dry humping the complainant. After a short period of time JT said "I'm having another go." The offender got off the bed and JT repositioned himself behind the complainant and started dry humping him again.

16. The complainant tried to move out of position and the offender said, "Don't move or I'll beat you." The complainant was scared of being further assaulted by the co-accused so he reluctantly complied. The offender then went and stood next to AF who had his phone up and was filming again. On at least one occasion JT slapped the complainant's buttocks as he was thrusting. After a period JT stopped dry humping the complainant, he got off the bed and the offender and two co-accused all returned to their areas of the dormitory. The complainant got off his bed, grabbed his phone and walked to the dormitory door in silence. When he was out of the room he started pacing up and down the hallway outside the dormitory.

17. As he was pacing he received a notification in a Snapchat group called "Roberto has COVID." The complainant had started the group chat earlier that year for the year 10 boys at the regional High School to communicate on. The complainant looked at the notification and saw that AF had posted two separate videos of JT dry humping the complainant. The complainant stayed outside the hallway for a while trying to calm himself down. He did not know how to go about telling staff what happened to him as he was overwhelmed. After 30 minutes the complainant returned to his bed to go to sleep. JT and the offender were asleep and AF was in his bed using his phone. AF did not say anything to the complainant when he returned to the dormitory.

18. After about ten minutes of being in bed the complainant got up and took a pillow over to JT’s area of the room. JT was talking in his sleep, the offender was sitting up in his bed at this time and was talking and laughing with the complainant about JT sleep talking. After listening to JT sleep talk for some time the complainant used his pillow to hit him two or three times waking him up. The complainant then returned to the offender's area and they laughed. JT then approached the complainant with a dress belt. The offender said, "J, don't" before JT began to strike the complainant with the belt he was holding. The offender repeatedly told JT to stop and eventually did saying to the complainant "That's for hitting me with a fucking pillow."

19. JT walked back to his own bed laughing. The offender asked the complainant whether he was okay. The complainant said, "Fuck youse, I'm going to bed." The complainant returned to his bed. The following morning the complainant woke up and saw the lock on the floor in his area, the lock was gold with Jack Hammer embossed on it and had a silver loop with the words hardened steel imprinted on it. The lock was about ten centimetres long when opened. The complainant picked it up and put it in the bin in the dormitory next to the door. AF emptied the dormitory bin into the large bin with red lids which were emptied by the council every Thursday morning.

20. Before leaving the dormitory for breakfast several students from dormitory rooms 4 and 6 came into the complainant's room to see if he was okay after seeing the videos posted on Snapchat overnight. The students told the co-accused they were disgusted by their behaviour towards the complainant. JT and the offender told the other students to fuck off. Throughout the morning the Snapchat videos constituting child abuse material were being shared amongst the student cohort. Staff members of the regional High School became aware of the videos and spoke to the complainant who disclosed what had happened to him the previous night. The matter was then reported to the Murrumbidgee Child Abuse Unit for investigation.

21. On 11 March 2022 police conducted a forensic child interview with the complainant. During the interview the complainant disclosed what had happened to him and described to investigators how he didn't know how to tell anyone about what had happened to him. JT and the offender were suspended from school.

OBJECTIVE SERIOUSNESS

22. The Crown submits of objective seriousness of both offences falls below the mid-range of objective seriousness, the Crown says the offender is liable in respect of both offences as a party to a joint criminal enterprise between himself, JT and AF. The Crown submits that the offending took place in the context of bullying where the offender and JT had recently humiliated the victim by trapping him naked outside the dormitory. The offending consisted of multiple acts separated in time to a small degree. The Crown submits that it cannot be said that he offending was spontaneous or undertaken as a result of momentary poor decision. The victim and the offender were the same age (15).

23. The Crown says the offending was cruel in nature, it was intentionally debasing and done over the pleading of the victim to stop.

Sequence 8

24. The act of sexual intercourse was the penetration of the victim's anus with a padlock. The padlock was inserted and then twisted before it was then inserted further on the offender's request. The penetration caused the victim pain. The Crown submits that the offending was highly degrading. Mr Edwards, senior counsel who appears on behalf of the young person, submits that the offence falls below the mid-range. He does so for the following reasons;

1. The nature of the act of the offence involves placing a lock in the victim's anus whilst in company.

2. There is no evidence of skin to skin contact.

3. There was no age difference between the victim and the offender.

4. There was threat and force involved in the commission of the offence.

5. There was no pressure, threat, force or manipulation not to disclose the offence.

6. There is an absence of aggravating factors (other than the factor that is an element of the offence).

7. The offending was opportunistic and of short duration.

8. There is no evidence of planning.

9. The offender voluntarily ceased his activities.

10. The offender was a child at the time of the offending.

25. It would appear there is no difference between the Crown and Mr Edwards SC as to the assessment of this offence. Both parties submit the offending falls below the mid-range. I accept those submissions.

Sequence 9

26. The Crown submits it was humiliating behaviour, he was exposed and helpless wearing only his underwear bent over on his bed. His protests were ignored. The boys took turns in dry humping him. The acts were filmed and distributed amongst the school community on a Snapchat group chat. The offender is not to be sentenced for the dissemination but rather carrying out the acts which were filmed for the production of the material. The Crown says the offending is below the mid-range. Mr Edwards SC submits that the offending falls in the lower range of objective seriousness. He does so for the following reasons;

1. The nature of the act, the offence involved the offender dry humping the victim and by virtue of a joint criminal enterprise disseminating a video of the act to the year 10 Snapchat group.

2. No skin-on-skin contact.

3. The offence was of brief duration (a few minutes).

4. The age difference between the victim and the offender was the same.

5. There was no pressure, threat, force or manipulation not to disclose the offence.

6. There is an absence of aggravating factors (other than the factor that is an element of the offence).

7. The offending was opportunistic and of short duration.

8. There was no evidence of planning.

9. The offender voluntarily ceased his activities.

10. The offender was a child at the time of the offence.

27. I accept those submissions. The degree of exploitation of the youth of the victim is in the low range. They were of the same age (15), there was no predatory behaviour leading up to the offence.

SECTION 25AA(3)

28. I have regard to the trauma of sexual abuse on children as understood at the time of sentencing. It is well recognised that sexual offences against children are objectively serious and cause significant harm to victims. Child sex offences have profound and deleterious effects upon victims for many years if not the whole of their lives. Psychological and emotional damage to children from sexual abuse can be assumed.

SUBJECTIVE CIRCUMSTANCES

29. The offender is 16 years and ten months old. He is a child for the purposes of sentencing. He has no prior convictions and relies upon his prior good character. He is entitled to leniency. The report of Dr Travis Wearne, psychologist, dated 22 August 2023 informs me of the following; the young person completed nine years of formal education and he attended a regional Primary School and a regional High School. He described himself as a below average student and said he struggled academically throughout his entire educational history. He struggled to learn basic reading, writing and numeracy.

30. He continues to struggle with some aspects of literacy today and he reported struggling with large and unfamiliar words. The young person said he was a generally well-behaved student and denied a history of suspensions or expulsions. After leaving school the young person has worked as shearer, he worked on a full-time basis and he was interested in continuing with shearing in the future. Under the heading of "Account of offences" the psychologist reports that the young person characterised the events as typical schoolboy behaviour that inadvertently escalated in severity, "I don't know…it was pretty normal to hit each other with belts…we're all just being dickheads…and I think we just got carried away."

29. He denied that his behaviour was sexually motivated. The young person expressed regret and remorse and accepted responsibility for the offences. "I regret it…I feel for it happening to him…we were all just being dickheads and got carried away." The young person endorsed extremely severe symptoms of anxiety and depression together with severe symptoms of stress at the time of his assessment. Under the heading "The Social Responsiveness Scale 2nd Edition (SRS-2)" the author says "The result suggested a broad spectrum of underlying social impairments involving social awareness, social cognition, social communication, social motivation and restricted interests and repetitive behaviours."

30. It is the opinion of Dr Wearne that "It is likely that he has autistic-like traits rather than a primary diagnosis of autism spectrum disorder although further testing with a measure such as an Autism Diagnostic Observation Schedule is needed to be sure." Dr Wearne says "Mr BP's offending behaviour appears to be fuelled by peer pressure and social immaturity." He further says:

"Mr BP is especially vulnerable to the negative influence of antisocial and criminal peers at this stage of his psychosocial and moral development and incarceration will increase his exposure to antisocial peers. Minimising his exposure to the socially toxic environment of youth detention and adult correctional facilities will be important in supporting his rehabilitation and reducing his risk of reoffending into the future. He is young, socially immature…he will also be vulnerable to exploitation in an incarceration setting."

33. A number of references were tendered on behalf of the young person. The young person's mother says that her son in many conversations she has had with him has expressed his remorse for his actions. He is a hard working young person who helped his extended family out in farmwork including providing firewood for relatives. He has a passion for shearing sheep and has been gainfully engaged as a shearer since leaving school. This country from my own experience has a shortage of shearers. His mother talks about the industry crying out for shearers. I agree. He is keen to join the Rural Fire Service. He has an uncle who is a deputy captain in the Rural Fire Service. I am one of two judges who are members of the Rural Fire Service.

34. If he was sent to prison he would not be accepted into the Rural Fire Service, even though they are always on the lookout for volunteers. While working full-time as a shearer he is also starting his Cert IV in wool classing. He has saved money and has purchased a motor vehicle. His mother has serious concerns about his mental health as a result of these proceedings. It is clear from her letter that her son has found his niche in shearing and is a hardworking kid who was highly remorseful for the one blemish in his life. He is supported by other family members. He has a lot to offer if he remains in the community. Letters from his aunt, uncle and friend of the family confirm the above.

35. It would appear that he is a hardworking, compassionate kid and the offences are out of character. The young person has a powerful subjective case.

CONTRITION/REMORSE

36. I am satisfied on the materials before me that the young person has expressed genuine contrition and remorse for his actions.

PROSPECTS OF REHABILITATION

37. The young person has no prior convictions, he has a prosocial network of support, he is in full-time work and has goals and ambitions. His offending was out of character. His charging and swiftness of prosecution have been a wake up call to him. In my view he has excellent prospects of rehabilitation and will not be before a Court again. This case reminds me of what King CJ said in Yardley v Betts 1 A Crim R 329 at 333:

"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced.

To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations."

SENTENCE

38. The Crown submits that the s 5 threshold has been crossed and the only sentence available is one of immediate imprisonment. Sequence 8 is a serious children's indictable offence requiring the young person to be sentenced according to law: s 17 Children (Criminal Proceedings) Act 1987. As stated by Hunt CJ at CL in R v WKR (1993) 32 NSWLR 447 at 449 the expression, "according to law" means,

"According to the principles of sentencing ordinarily applied by the Courts without reference to those provisions in part 3 division 4 of the Children (Criminal Proceedings) Act which are otherwise applicable only in the Children's Court."

39. In relation to sequence 9 I am of the view that the offence is serious and should be dealt with according to law. In sentencing a young person rehabilitation should be the primary concern and deterrence/denunciation should play a subordinate role: R v GDP [2008] NSWCCA 51. Young people such as the offender may not reach emotional maturity or impulse control until early to mid-20s and youth may be a material factor in sentencing a young person for a most serious crime. The offender's culpability by reason of his youth moderates the extent to which he should be punished. Court's exercising criminal jurisdiction with respect to children shall have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987: R v SDM (2001) 51 NSWLR 530; Paul Campbell v R [2018] NSWCCA 87 at [26]. Section 6 provides:

1. 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,

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

3. that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

4. that it is desirable, wherever possible, to allow a child to reside in his or her own home,

5. 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,

6. 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,

7. that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

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

40. This provision echoes the articles of the conventions on the rights of the child to which Australia is a signatory. The principles for sentencing young offenders were summarised by McClellan CJ at CL in KT v R [2008] NSWCCA 51 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. The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence. 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."

41. The reasons for this were summarised by Adams J in MS2 and Ors v R [2005] NSWCCA 397 at [16]. "…children do not have adult value judgments, adult experience, adult appreciation of consequences especially catastrophic consequences or adult understanding of criminal culpability." In BP v R [2010] NSWCCA 159; (2010) A Crim R 379 Hodgson JA referred to McClellan CJ at CL summary of principles in KT with approval but added three points which have relevance to this case:

"[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. 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 TM 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 of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19-year-old for a most serious crime.

[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. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."

42. The offending was not for sexual gratification; it was bastardisation in the setting of a boarding school. The offending was of short duration occurring spontaneously with little planning, if any. The offender was a young, immature adolescent who behaved impulsively when he committed the offences. His immaturity was a significant contributing factor to his offending. This is not to suggest that the offender did not appreciate that his actions were wrong. He has accepted this with his plea of guilty. Additionally he was over 14 years of age and there is no presumption that he was doli incapax. However, his immaturity is extremely relevant and substantially explains the offending behaviour.

43. No civilised society regards children as accountable for their actions to the same extent as adults: R (a child) v Whitty (1993) 66 A Crim R 463. The offender's moral culpability is reduced and considerations of retribution and punishment cede to rehabilitation of the offender by virtue of his young age at the time of the offences. I am not satisfied that no penalty other than imprisonment is appropriate.

44. Sequence 8; the young person is convicted and sentenced to a community correction order for a period of three years with standard conditions:

1. Must not commit any offence

2. Appear before the Court if required to do so.

45. Sequence 9; the young person is convicted and sentenced to a community corrections order for a period of two years with standard conditions:

1. Must not commit any offence

2. Appear before the Court if required to do so.

46. The offender was under 18 at the time the offences were committed and has not been previously convicted of any other sexual offence. I have not imposed a sentence of full-time detention and I am satisfied that this offender does not pose a risk to the lives or sexual safety of children. I order that the offender is not to be treated as a registerable person pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000. The offences are a serious offence pursuant to s 41(5)(c) of the Crimes (Domestic and Personal Violence) Act 2007. Section 39(1A) of the same Act requires that I make a final apprehended violence order for the protection of the victim.

47. The order is for two years including conditions 2 and 8. Both offences are "personal violence offences" for the purposes of the Act, the Crown seeks an order pursuant to s 12(2) that the offences be recorded on the offender's criminal history as domestic violence offences. I make that order.

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Decision last updated: 10 October 2023