R v DN

[2019] NSWDC 536

District Court

New South Wales

Medium Neutral Citation:

R v DN [2019] NSWDC 536

Hearing dates:

19 July 2019

Date of orders:

19 July 2019

Decision date:

19 July 2019

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

I do not convict the young person in accordance with s 14 as identified by the Crown. The young person is placed on a community corrections order for three years. The community corrections order is subject to the following conditions:

1. The young person must not commit any offence;

2. The young person must appear before a Court if called upon;

3. The young person must submit to supervision by Juvenile Justice;

4. The young person must comply with the lawful directions of Karen Charlton-Owen, senior psychologist, Family and Community Services, or her nominee. It includes satisfactorily completing programs as directed by her or her nominee;

5. The young person must report to the Juvenile Justice at Bega within seven days.

In accordance with the Child Protection (Offenders Registration) Act 2000, and having taken matters into consideration in that Act, I declare that the young person is a non-registrable person pursuant to that Act

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10
SENTENCING — Juvenile offenders — Community Corrections Order

Legislation Cited:

Child Protection (Offenders Registration) Act 2000
Children (Community Service Orders) Act 1987
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Young Offenders Act 1997

Cases Cited:

KT v R [2008] 182 A Crim R 571
MS2 and Ors v R [2005] NSWCCA 397
Markarian v R [2005] HCA 25; 215 ALR 213.
Paul Campbell v R [2018] NSWCCA 87
R v Ellis (1986) 6 NSWLR 603
R v GDP [2008] NSWCCA 51
R v SDM (2001) 51 NSWLR 530
RP v R [2015] NSWCCA 215
Slade v R [2005] NZCA 19
Yardley v Betts 1 A Crim R 329
R v Elliott and Blessington [2006] NSWCCA 305
R v Voss [2003] NSWCCA 182

Category:

Sentence

Parties:

Regina (Crown)
DN (Offender)

Representation:

Counsel:
M Fox (Crown)
P Williams (Offender)

  Solicitors:
Solicitor for Public Prosecutions (Crown)
Jennifer Chalker Lawyers (Offender)

File Number(s):

2017/00386362

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 New South Wales there is to be no publication of any material capable of identifying either the young person or his two victims.

Judgment

INTRODUCTION

1. The young person was committed for trial from the Bega Children’s Court on 22 August 2018. On 29 April 2019 at the Bega District Court a voir dire commenced into the admissibility of various admissions made by the young person as well as the admissibility of tendency evidence and joint trials. Those applications were largely successful. Originally the young person was arraigned on an eight count indictment, alleging eight counts of sexual intercourse with a child under the age of ten years.

2. In light of my rulings the matter was stood down and discussions took place between the parties. On 3 May 2019 the young person was rearraigned and pleaded guilty to a three count indictment. He had pleaded guilty to three counts of sexual intercourse with the complainants being under the age of ten years, contrary to s 66A(1) of the Crimes Act 1900. Three matters were placed on a Form 1. They were sexual offences carrying life imprisonment. Those offences could not be placed on a Form 1: s 33(4)(b) Crimes (Sentencing Procedure) Act, see also Paul Campbell v R [2018] NSWCCA 87 where a sexual offence carrying life imprisonment was placed on a Form 1 and afforded a successful ground of appeal.

3. This morning I was informed by the Crown that a six count indictment would be filed over the existing indictment. The young person subsequently was arraigned and pleaded guilty to the six counts. The offender now appears for sentence. At the time of offending he was 12 years of age. He is now 14. The maximum penalty on all counts is life imprisonment. The maximum penalty is an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.

4. The offence pursuant to s 66A(1) is a serious children’s indictment offence under the provisions of s 3 Children (Criminal Proceedings) Act 1987. Pursuant to s 17 Children (Criminal Proceedings) Act 1987 in relation to a serious children’s indictment offence the Court shall deal with the young person according to law. A Court 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 [2018] NSWCCA 87 at 26.

5. Section 6 provides:

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

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

(c) It is desirable wherever possible to allow the education or employment of a child to proceed without interruption.

(d) It is desirable wherever possible to allow a child to reside in his or her own home.

(e) 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) 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) It is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparations for their actions.

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

6. This provision echoes the articles of the Conventions on the Rights of the Child, to which Australia is a signatory.

THE PLEA

7. The guilty plea and the timing of the plea are taking into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. The corresponding provision for an offence not dealt with according to law is s 33B of the Children (Criminal Proceedings) Act 1987. The guilty plea was not entered by the offender at the first reasonable opportunity, although after the conduct of successful pre-trial applications a discount of 15% is appropriate. There is significant utilitarian value in the guilty plea as it avoided the young complainants from giving evidence.

THE FACTS

8. I do not propose to read extensively the facts that are contained in exhibit 1, but simply to summarise some of those facts. CW is the mother of three children, the victim, IS, her young sister, C, and their stepbrother, the young person. CW and her family resided in an Akolele until 30 September 2016 when they started living at Barragga Bay. From around March 2015 CW became friends with KG, who had moved into the neighbourhood with her son, the victim HW. The families lived only 500 metres apart and their children would socialise together frequently and were almost always at CW’s house.

Count 1, s 66A(1), fellatio (HW), count 2, s 66A(1), penile/anal penetration (HW).

9. On one occasion when H was at that young person’s house in Akolele he was alone with the young person in the garage. The young person put his penis into the complainant’s mouth and in the complainant’s anus. The victim, H, complained to his mother, KG, on 13 October 2017. H was interviewed by JIRT on 27 October 2017. In that interview the victim disclosed various matters, including that the young person had put his doodle in his bum and that it hurt. H also stated that he had sucked the young person’s wee wee.

10. Police later received a copy of a letter that the young person had written to an adult family friend, SB. In that letter the offender admitted the offending of fellatio and penile/anal intercourse in the garage at the Akolele home.

Counts 3, s 66A(1), fellatio (HW), count 4, s 66A(1), penile/anal penetration (HW).

11. On one occasion when the young person was visiting KG's house he was playing with the complainant and the other children. When the young person and the complainant were both alone in KG’s bedroom the young person put his penis in the complainant’s mouth and in the complainant’s anus.

OFFENCES INVOLVING IS

12. The young person was 12 years old at the time of the allegations involving IS. He is the complainant’s stepbrother.

Count 5, s 66A(1), cunnilingus.

13. On 10 June 2017 CW and her husband, PS, separated and he left the family home at Barragga Bay, where they lived with their daughters, CS and IS, and the young person, who has a different father, SN. A few weeks after that time the complainant was laying in her bed after having had a bath. The young person went into her room and licked her vagina twice for about ten seconds to a minute. He pinned her down when she tried to get away.

14. The young person made written admissions in letters addressed to SB as well as admissions to KG, his mother, CW, and his grandmother, MW, to licking IS’s wee wee on two occasions.

Count 6, s 66A(1), cunnilingus.

15. One evening when the family were at home, the young person saw that his mother was asleep on the lounge wearing a head torch. He went to his mother’s bedroom, where IS was asleep. he pulled down her pants and licked her vagina for about ten seconds to a minute. The complainant remained asleep. The young person made written admissions in the letter addressed to S and admissions to KG, his mother, CW, and his grandmother, MW.

OBJECTIVE SERIOUSNESS

Count 1, fellatio.

16. On a single occasion at the young person’s home in the garage the young person put his penis in the victim’s mouth. It is unclear from the facts document how long the penis was in the mouth. I have assumed it was brief. The offending was opportunistic and involved no planning at all.

Count 2, penile/anal penetration.

17. On the same occasion as count 1 the young person put his penis in the anus of the victim. It was unclear from the facts the extent of the penetration or the period of time that penetration occurred.

18. The offending was opportunistic and involved no planning at all. The offending in counts 1 and 2 was objectively serious.

Counts 3 and 4.

19. The young person put his penis in the mouth and anus of the victim. It is unclear from the facts the extent of penetration or the period of time of that penetration. It is more likely than not that the offending was of a very brief nature. It was opportunistic and involved no preplanning. It was objectively serious.

Count 5

20. On a single occasion the young person went into his stepsister’s bedroom and licked her vagina twice. It was for about ten seconds to a minute. It was of the briefest nature. It was opportunistic and involved no planning at all. The holding down after the act may be looked at as childish play fighting as opposed to a wish to continue the conduct. The conduct did not continue. The offending was objectively serious.

Count 6

21. The young person noticed that his mother was asleep and then went to his stepsister’s bedroom. Opportunistically he entered the room and licked the victim’s vagina whilst she was asleep, for a matter of seconds. She remained asleep.

22. It was only due to the young person coming forward that the matter was discovered. The victim had no knowledge of what had occurred. The offending was opportunistic, of short duration, and involved no planning, however it was objectively serious.

AGGRAVATING FACTOR

23. In relation to count 3, the offence occurred in the home of the victim. It is an aggravating factor pursuant to s 21A(eb) of the Crimes (Sentencing Procedure) Act, and I take that matter into account.

Breach of trust

24. In my view when a 12 year old is in the company of a younger sibling and a friend of the family it does not constitute being in a position of trust. What is required is something more than what occurred in this case.

VICTIM IMPACT STATEMENT

25. Section 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 requires the Court to have regard to the trauma of sexual abuse on a child. Section 3A(g) of the Crimes (Sentencing Procedure) Act requires a sentencer to recognise the harm done to the victim of the crime and the community. I have two victim impact statements before me and they indicate that both of the victims have been traumatised by the conduct of the offender. Whilst the consequences of offending must be considered by the Court, the ultimate sentence imposed, however, cannot exceed that which the objective criminality warrants.

SUBJECTIVE CIRCUMSTANCES

26. The young person was 12 at the time of the offending. He is now 14. After the offending came to light he was banished from the home and has since been with his father and his father’s partner. They have provided a stable environment for him. I have before me a report from Karen Charlton-Owen, senior psychologist, Family and Community Services, dated 1 May 2019. She has been involved with the young person since 7 March 2018. The relevant parts of the report read as follows.

“The young person was initially referred to Family and Community Services after a Joint Investigation Response Team substantiated that the young person had sexually harmed his younger sibling and the child of a family friend, both aged four years. To assist in treatment planning the protective and risk observations for eliminating sexual offence recidivism was utilised. It is intended to assist with intervention planning to help individuals who have displayed sexually harmful behaviours to enhance their capacity for sexual and relationship health and consequently eliminate sexual recidivism.

DN presented as experiencing significant levels of trauma symptomology related to previous sexual harm that he has experienced. Exposure to sexual harm can be a factor in sexually harmful behaviour in some children and young people. Initial assessment results suggested that the overall clinical impression was that the young person’s presentation was consistent with a diagnosis of post-traumatic stress disorder. Other identified areas of therapeutic need for the young person included social isolation, anxiety, and low self-esteem.

Trauma focused cognitive behaviour therapy was included in treatment planning. There is an evidence-based treatment approach shown to help children and adolescents overcome trauma-related difficulties. It has been shown to reduce the negative emotional and behavioural responses following traumatic events. The young person has engaged in a treatment plan comprising psychoeducation, including reviewing information about the psychological and physiological responses to trauma, education about health sexual relationships, relaxation skills, affect regulation skills, and cognitive processing skills have also been included in the treatment plan.

DN has also recently completed direct discussion of traumatic events associated with being sexually abused. Throughout his engagement with FACS the young person has attended sessions reliably and punctually. He has attended all sessions with either his father or stepmother. He has been cooperative, engaged, and respectful during sessions. The young person has continued to experience stability in his care. He appears to enjoy a warm and respectful relationship with both his father and his father’s partner. Neither his father nor his father’s partner report any significant challenges in the young person’s behaviour at home.

His father and partner present as committed to safety planning for him and appear to take their supervision requirements seriously. Healthy sexual relationships have been discussed. This has included exploring the three big rules about sex: the right person, the right age, and the right way. This has included discussions on the age of consent, what constitutes sexual behaviour, lack of consent if an individual is intoxicated or unconscious, and power imbalances in relationships. Relationships with someone that you care about and respect have also been discussed.

DN has been able to engage in discussions about these issues in subsequent sessions and has been able to demonstrate an understanding of healthy sexual relationships and healthy relationships generally. Due to the young person’s previous experience of being sexually harmed and related assessed trauma symptomology, common responses to sexual abuse were discussed. The importance of exercise and regular physical activity has been discussed. The young person’s caseworker has also liaised with the young person and the person’s father to attempt to access opportunities for the young person to engage in physical exercise outside of school.

Increasing the young person’s access to extracurricular activities is important to decrease his feelings of isolation and withdrawal and to assist with anxious and sad feelings that he sometimes experiences. Research suggests that sexual harmful behaviour in adolescence rarely continues into adulthood. The vast majority of adolescents who engage in sexually harmful behaviours do not continue to sexually abuse others. Appropriately targeted interventions also significantly reduce risk and recidivism of such behaviours.”

27. I have before me a confidential background report from Juvenile Justice dated 17 July 2019. The relevant parts of that report are as follows:

• The young person has no prior record of offending or contact with Juvenile Justice.

• He was generally cooperative when interviewed and responded to all questions asked of him.

• He is 14 years of age and lives with his father and his stepmother on a rented property near the rural village of Bemboka.

• He has lived most of his life in the care of his mother and stepfather.

• At the time of the offences he was living with his mother, CW.

28. There is an AVO in place for the young person to have no contact with his mother or younger siblings. The young person was placed in short-term accommodation, including Moruya Youth Refuge, before moving to live with his father on 6 December 2017. The young person appears well settled and has responded favourably to the change in living arrangements. His father and partner inform of no major issues at home with the young person. The young person is generally cooperative and respectful in the home. His father and partner have supported the young person with weekly appointments with his psychologist, meeting his bail conditions, and at court.

29. The author observed a strong bond and warmth in the relationship between the young person, his father, and his father’s partner, when interviewed. There is no plan to change the current living arrangements for the young person. The young person is currently enrolled in year 9. He attends the emotionally disturbed class and prefers to remain in the emotionally disturbed class rather than access some mainstream elective subjects. He has no current plans to complete high school to year 12.

30. He has experienced paid employment working at a butcher’s shop. It appears he found the job through his own efforts, starting with cleaning and over time progressing to customer service. He reports he wants to be a truck driver when he leaves school. At the time of the offences the young person was associating with older peers engaged in alcohol and cannabis use. It appears the young person has distanced himself from this group.

31. He reports a history of first using alcohol when he was 12 and smoking cannabis at ten. He describes using substances with an older group of peers who introduced him to cannabis and alcohol. He added that his use of cannabis escalated to daily and that he stopped using a couple of weeks before he moved to Bemboka. He states that he last consumed alcohol approximately two months before moving to his father’s. He informed the author that he hasn’t used alcohol or cannabis since moving.

32. His father confirms no usage since DN moved in. This is one of the rules for the young person while living with his father. During the interviews the young person disclosed that he was a victim of sexual abuse as a three year old and again when he was ten. The psychologist, as well as DN’s mother and father, are aware of his experiences as a victim of abuse. The allegations were reported to police. These events created trauma for DN which is an ongoing focus of his treatment with the psychologist.

28. The psychologist has engaged in therapeutic intervention with DN since he was referred in February 2018, usually on a weekly basis. In summarising his response to date the psychologist said, “DN has shown excellent engagement and commitment during sessions. He has made extremely pleasing progress towards many identified treatment goals.” It is important for the young offender to complete his therapy with the psychologist. This intervention therapy and education forms a protective factor for DN to assist him to remain safe in the community.

29. It is recommended that any community-based orders include a condition that DN continue to engage and complete therapy with his psychologist. He has expressed regret for any harm he caused to his victims. At the time of his offences as a 12 year old he was using cannabis and alcohol, associating with negative peers, and accessing pornography. In addition, CW, his mother, was having difficulties coping with the break-up of her relationship and providing parental supervision and boundaries for the young person.

30. The young person was also experiencing trauma from being a victim of sexual abuse. From the reports of the psychologist and his father and stepmother the young person is making his best efforts to address his offending behaviour. The young person is ineligible to be sentenced to a youth justice conference under s 33C(1) of the Children (Criminal Proceedings) Act 1987 and s 40 of the Young Offenders Act 1997. Taking into account all of the information incorporating a standardised assessment process the young person has been assessed as unlikely to benefit from supervision by the service for the following reasons:

• The young person is well engaged in psychological counselling and therapy which commenced in February 2018 and continues at time of writing.

• The young person is living in a positive home environment with his father and stepmother. They appear to be meeting his needs and providing appropriate boundaries for the young person.

36. The young person has been assessed as suitable for a community service order as per the requirements of s 9(b) of the Children (Community Service Orders) Act 1987, however there is no current suitable work placement available to Youth Justice New South Wales in the Bega Valley.

PROSPECTS OF REHABILITATION

37. The young person is residing with his father and his partner. It is a stable and caring environment. They should be commended for what they have done to assist the young person. The young person before moving ceased the use of drugs and alcohol. This is a positive sign in the development of maturity. He has changed his peer group. He remains at school but does not intend to complete year 12. His wish is to become a truck driver. He has been receiving treatment from a psychologist, and that continues. He has responded well to the treatment and programs.

38. In Yardley v Betts (1979) 1 A Crim R 329 King CJ at p 333 said this:

“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 no 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 would animate the criminal tribunals of civilised nations.”

39. I have formed the view that he has good prospects of rehabilitation. I note that if a community-based disposition is imposed that it will include a condition that the young person continue to engage and complete therapy with his psychologist.

ELLIS DISCOUNT

40. I accept the Crown’s submission that the Court is entitled to consider the imposition of additional discount by reason of the young person’s disclosure of otherwise unknown guilt that may not have otherwise surfaced, especially considering the young age of the two victims: R v Ellis (1986) 6 NSWLR 603. The offending came to the attention of the parents, and ultimately the police, through the young person’s admissions to families members, both verbally and in writing. The young person also made admissions to the police and assisted them with their investigations. Although I excluded those matters on the trial, I am entitled to take them into account on sentence, and I do so.

CONSIDERATION

41. The sentencing regime applying to children is very different to that applying to adults. At its core that regime focuses on desirability of fostering the rehabilitation of children: Paul Campbell v R [2018] NSWCCA 87 at [23]. In MS2 and Ors v R [2005] NSWCCA 397 Adams J identified two reasons why youthfulness of an offender is considered to be a significant factor in sentencing. The first is the substantial public interest in rehabilitation of young offenders: [15]. The second is that immaturity is relevant to culpability or criminality because children do not have adult value judgments, adult experience, adult appreciation of consequences: [16].

42. When children are to be sentenced greater weight is given to rehabilitation and less weight to deterrence: R v GDP [2008] NSWCCA 51. However, the closer a child is to adulthood and the more serious the offending the more likely that deterrence and rehabilitation will be significant factors.

43. RP v R [2015] NSWCCA 215 demonstrates that serious sexual offending committed by children as young as the young person does not necessarily result in full time incarceration. The comparable cases dealt with in that decision demonstrate that there is considerable flexibility in sentencing young offenders.

44. Hamill J, as a result of his concern regarding the protection of the community arising from the appellant’s lack of insight and poor prospects of rehabilitation, concluded that a custodial sentence was warranted, but would have suspended that sentence. In the case of this offender, he has insight and is deeply remorseful. He has good prospects of rehabilitation.

45. In KT v R [2008] 182 A Crim R 571, McClellan CJ at CL at [22] and following, summarised the rationale behind s 6 and collected the leading sentencing cases on the relevance of youth at sentence:

“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 of 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.”

Footnotes omitted.

“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…

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 a way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.”

Footnotes 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 of the circumstances of the offence. 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.

The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity.

Footnote omitted.

A “child offender” of almost 18 years of age cannot expect to be treated substantially differently from an offender who is just over 18 years of age. However the younger the offender the greater the weight to be afforded to the element of youth.”

Footnote omitted

46. In R v Voss [2003] NSWCCA 182 at [16] the Court provided guidance in determining whether a young person has engaged in adult behaviour. There it was held that the Court should look to various matters, including the use of weapons, planning or premeditation, the existence of an extensive criminal history, and the nature of the circumstance of the offence.

47. None of those factors are in existence in this case other than the nature of the circumstance of the offence. The young person has not engaged in adult behaviour as defined by the authorities.

48. The offending was immature from an adult’s perspective. It came about due to his youth and perhaps his past abuse, which may have led him to believe it was normal behaviour. The behaviour was not pre-planned. It appears that it was experimental behaviour on the part of someone of greater immaturity than his stated age of 12 years. It is clear to me upon reading the reports that the cognitive and psychological immaturity of this young person contributed to the offending.

49. I find that the immaturity of the offender is a significant factor in the commission of the offences and accordingly the criminality involved is less than if the same offence was committed by an adult.

50. In R v Elliott and Blessington [2006] NSWCCA 305 Kirby J (dissenting in outcome) said at [127] that: “Jurisprudence has developed in the context of sentencing young offenders which recognises the important differences in terms of responsibility between adults and children.”

51. His Honour referred to Slade v R [2005] NZCA 19 and to studies concerning the capacity of adolescents to regulate their moods, impulses, and behaviours. Those considerations apply with even greater force in the case of a 12 year old emotionally undeveloped offender who has been subjected to sexual abuse on at least two occasions. In my view the major sentencing factor in this case is the need to provide an opportunity for rehabilitation. Considerations of general deterrence and principles of retribution are of less significance than they would be when sentencing an adult for the same offences.

52. This young person was a long way from approaching the age of maturity. He was 12 at the time of the offending. I suspect cognitively, and certainly emotionally, he was well below that stated age. I have taken into account the following:

• 6(b), that the young person, due to his immaturity, requires guidance and assistance;

• 6(c), it is desirable that he be allowed to continue his education at Bega High School;

• 6(d), it is desirable that he continues to live in the stable environment that has been provided to him by his father and stepmother;

• 6(f), it is desirable that he be assisted to reintegrate into the community as a productive, law abiding member of the community;

• 6(g), he has taken responsibility for his actions by informing on himself, assisting the police, and pleading guilty, he has expressed regret for any harm caused to the victims;

• 6(h), I have taken into consideration the effect of the crime on the victims.

53. It is a requirement of the Crimes (Sentencing Procedure) Act that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s 5(1). This is a consideration of the possibility of options such as fine, a bond, or a community service order.

54. The administration of the criminal law involves individualised justice. The proper approach to sentencing involves the weighting of all factors in order to reach a conclusion that a particular penalty should be imposed: Markarian v R [2005] HCA 25; 215 ALR 213.

55. I have concluded that s 5 has not been crossed.

ORDERS

56. The young person will be placed on a community corrections order for a period of three years. The orders are as follows:

57. I do not convict the young person in accordance with s 14 as identified by the Crown. The young person is placed on a community corrections order for three years. The community corrections order is subject to the following conditions:

1. The young person must not commit any offence;

2. The young person must appear before a Court if called upon;

3. The young person must submit to supervision by Juvenile Justice;

4. The young person must comply with the lawful directions of Karen Charlton-Owen, senior psychologist, Family and Community Services, or her nominee. It includes satisfactorily completing programs as directed by her or her nominee;

5. The young person must report to the Juvenile Justice at Bega within seven days.

58. In accordance with the Child Protection (Offenders Registration) Act 2000, and having taken matters into consideration in that Act, I declare that the young person is a non-registrable person pursuant to that Act.

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Decision last updated: 15 October 2019