R v DT

[2019] NSWDC 673

District Court

New South Wales

Medium Neutral Citation:

R v DT [2019] NSWDC 673

Hearing dates:

1 November 2019

Date of orders:

08 November 2019

Decision date:

08 November 2019

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

See [90]

Catchwords:

SENTENCING – Young offender – Child sex offences – Whether no other penalty than imprisonment appropriate – Where ICO is not an available penalty even where offender is a young person

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) s 6
Crimes Act 1900 (NSW) ss 61M(2), 61O(1), 66A(1), 66B
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW)

Cases Cited:

BP v R [2010] NSWCCA 159
Paul Campbell v R [2018] NSWCCA 87
R v Georgopoulos [2010] NSWCCA 246
R v Seller; R v McCarthy [2013] NSWCCA 42
R v Zamagias [2002] NSWCCA 17
Sabra v R [2015] NSWCCA 38

Texts Cited:

N/A

Category:

Sentence

Parties:

Regina (Crown)
DT (Offender)

Representation:

Counsel:

 

Mr R Kotsis (for the Crown)
Mr S Howell (for the Offender)

 

Solicitors:

  Director of Public Prosecutions
Legal Aid NSW

File Number(s):

19/22653

Publication restriction:

Section 15A(1) of the Children (Criminal Proceedings) Act applies in relation to the names of the Victim and the Offender

Judgment

1. The Victim, ET, resided at Bradbury with her mother, father and siblings. She was born in 2005. The Offender, DT, is the Victim’s older cousin, once removed. He was born in 1998.

2. The Offender had pleaded guilty to 4 charges being:

1. Sequence 1: Indecent assault on a person under 16 years of age contrary to section 61M(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment.

2. Sequence 3: Sexual intercourse with a person under the age of 10 years contrary to section 66A(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.

3. Sequence 5: Incite Victim under 10 years to commit an indecent act contrary to section 61O(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 7 years imprisonment.

4. Sequence 6: Attempt sexual intercourse with a person under the age of 10 years contrary to section 66B of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.

3. The standard non-parole period applicable to the offences the subject of sequences 1 and 3 do not apply in this instance. [1] There is no standard non-parole period which attaches to sequences 5 and 6.

   1. S 54D(3) of the Crimes (Sentencing Procedure Act 1999 (NSW).

4. Although Sequences 1 and 5 represented serious children’s indictable offences capable of being dealt with under the Children (Criminal Proceedings) Act 1987 (NSW), the parties accepted that all matters should be dealt with according to law. [2]

   2. T 45.50.

5. The agreed facts indicate two incidents during which the offending conduct occurred.

Agreed Facts

The Mobile Phone Incident – Sequence 1

6. On a day between 7 July 2014 and 7 July 2015, the Offender (who was aged between 16 and 17 years) visited the Victim’s home. The Victim (who was aged between 9 and 10 years) was home alone with the Offender and the Victim’s brother.

7. The Victim’s brother was in his bedroom. The Victim and the Offender were in the Victim’s bedroom, playing games on the Offender’s mobile phone. The Offender was on the end of the Victim’s bed. He said, “come sit on my lap so I can watch you.” The Victim went to the Offender and he placed her on his lap facing away from him. The Victim continued to play on the mobile phone. The Offender told the Victim to sit on his crotch and the Offender lifted her further back onto his penis area and told her to move around on his penis. The Offender started to move his body around and continued to tell the Victim to move whilst he rubbed his penis against her.

8. The Offender used his hands to rub the Victim’s upper thighs and her breasts (Sequence 1).

9. The Victim and the Offender heard the front door opening and the Offender stopped touching the Victim. The Victim ran outside to the sitting room. Her mother and other family members had returned to the house.

The Bathroom Incident – Sequences 3, 5 & 6

10. On another day between 7 July 2014 and 7 July 2015, the Victim (who was aged between 9 and 10 years) woke up before her parents and siblings. The Offender (who was aged between 16 and 17 years) was also at the house. The Victim went into the bathroom to wash up. The Offender entered the bathroom and closed and locked the door.

11. He said, “we should do something” and then told the Victim to get down on her knees. The Offender asked the Victim to touch his penis.

12. The Offender said, “get on your knees”. The Victim was confused and unsure, but she did so because she was raised to respect her elders.

13. The Offender was standing in front of the Victim. He pulled his pants and underwear down revealing his penis. The Offender told the Victim to rub his penis with her hands. He told her to hold it. The Victim used her hands to rub the Offender’s penis in an up-and-down motion (sequence 5).

14. As the Victim was rubbing the Offender’s penis, the Offender told the Victim to lick his penis to “make it wet”. The Victim did not want to do this. She said “why do I have to do that, it’s disgusting.” The Offender told her to be quiet.

15. The Offender placed both his hands onto the back of the Victim’s head and forced her head toward his penis. The Offender asked the Victim to open her mouth and lick the top of his penis, however the Victim licked the sides of the penis instead. The Offender again took hold of the Victim’s head and forced it forwards with her mouth going onto his penis for around one minute (sequence 3).

16. The Offender told the Victim to stand up and bend down. The Victim stood up, turned around, bent her back forwards and placed her hands on the nearby wall. The Offender pulled the Victim’s pants and underwear down and told her to start “having sex.” The Offender said that he would be putting his penis into her bottom. The Victim felt the Offender’s penis in her bottom whilst the Offender moved backwards and forwards for several minutes causing a little bit of pain. It is agreed that the Offender attempted to penetrate the Victim’s anus. The Victim felt uncomfortable and disgusted during this incident. (sequence 6)

17. The Victim heard a noise outside the door and believed that some of her family were out of bed. The Offender stopped what he was doing, pulled his pants up and left the bathroom quickly.

18. The Victim washed her face and hands before leaving the bathroom.

19. Following this incident, the Victim avoided the Offender because she felt “uncomfortable and weird” near him.

20. In 2018, the Victim disclosed to her aunt and two friends that the Offender had touched her in places she did not want to be touched.

21. On 30 November 2018, a ‘child at risk’ report was received by Police.

22. On 7 December 2018, Police conducted a recorded interview with the Victim (who was then 13 years old).

23. On 22 January 2019, the Offender who was aged 20 years and 7 months, was arrested by Police. The Offender participated in a recorded interview. He told police that he was employed by a company making frames and trusses and he had been working with that company for a year and a half.

24. Police informed him that they were investigating sexual allegations by the Victim. He said “stupid to be honest… shouldn’t have gone there. Stupid little kid… I wasn’t thinking at all.” He made full admissions to Police in relation to the above incidents as they were described by the Victim.

25. In relation to the bathroom incident, police asked him why he went into the bathroom. He replied, “stupid thoughts again.” He was unable to recall what he was thinking at the time and said “I probably don’t even want to think about it.”

26. The Offender told Police that he has never spoken with the Victim about these incidents since they occurred. He said, “no I think we were just both ashamed… she probably felt violated… if I could go back, I would… but that still doesn’t explain what I did.” He said, “we were a family but now… I’ve stuffed everything up.”

Victim Impact Statement

27. The Victim read a victim impact statement to the Court. [3] She described herself as feeling angry and disappointed in both the Offender and herself. She stated that the Offender was part of a family who were supposed to be the first people who she could trust, but they were the first to break it.

    3. Exhibit A, Tab 4.

28. She stated that it broke her heart and soul very deeply and left her with many painful memories. As a consequence, she states that she feels scared and afraid of making love, and has blamed herself ever since. She stated that she has had to face depression for the past 4 years that has made her have negative feelings towards herself, her family and her friends. She also stated that she has had social anxiety, which makes her overthink everything and fears what others might be thinking. This has caused her to self-harm. While she may be surrounded by people she cares for, she is afraid to ask for help. She often has nightmares, insecurities and self-hate too.

29. She stated that for the past four years, she has had to deal with this issue alone as a young and confused girl, because she didn’t wish to cause any trouble.

30. The Victim’s statement is a powerful reminder to this Court of the impact that the Offender’s actions are upon her, which the Court takes into account in the way that the law provides. [4]

    4. Crimes (Sentencing Procedure) Act 1999 (NSW) (the ‘1999 Act’), Div 2, Part 3.

31. No submission was advanced by the Crown that the harm, loss or damage occasioned from the offences for which the Offender is to be sentenced amounted to substantial harm within the terms of 21A(2)(g) of the 1999 Act.

The Offender

32. In a Juvenile Justice Report dated 17 October 2019, [5] it was reported:

[DT] was able to acknowledge that his decision to commit the abovementioned offences was based on a “selfish” desire to satisfy his own needs at the time, without any consideration for the impact on the Victim. [DT] further reported that he takes full responsibility for his behaviour, adding that he feels that he has “matured” and is “more considerate” of others than the 16 year old boy he was when he committed the offences. [6]

5. Exhibit B.

6. Exhibit B, p 4.

33. In a psychological assessment report prepared by Ms Katie Martens, Forensic Psychologist, dated 5 August 2019, it was recorded:

[28]… [DT] stated that he had struggled to manage his sexual urges and arousal during mid to late adolescence. He recalled having experienced “intense” sexual thoughts around the time of this offence. [DT] could not recall having any specific sexual thoughts about his cousin, and stated that they had been relatively close. He described the offences as opportunistic but did not recall any pre-planning. He stated that both offences occurred reasonably close together and he recorded having felt “disgusted in myself afterwards.” [DT] advised that he had chosen to cease the behaviour due to this disgust and the difficult coping with the knowledge that he had engaged in sexual harm... [7]

7. Exhibit 1, [28].

34. Ms Martens report also recorded that following psychological assessment, the Offender completed the Millon Clinical Multiaxial Inventory IV test designed to assess his personality patterns and clinical psychopathology. That test indicated a mistrust of others and a sense of being guarded and hyper sensitive to the judgment of others. It further found that the Offender disowns or attempts to separate himself from undesired personality traits or behaviours.

35. To assess the Offender’s intellectual function, Ms Martens administered the Stanford Binet Fifth Edition test. In this case, the Offender achieved a score placing him at “borderline impaired” range for intellectual functioning. Ms Marten’s opines that this would suggest that he would experience some difficulty understanding complex material, retaining information and generalised learnt information to unfamiliar scenarios.

Objective Seriousness

36. In assessing the objective seriousness for each offence, the Defence drew attention to the following features:

1. That at the time the Victim was aged between 9 and 10 years and the offender 16 years;

2. The age gap between the two was therefore about 6-7 years;

3. Their relationship was that of older and younger cousins;

4. The acts constituting the offence were:

1. Sequence 1: rubbing his penis against her and touching her upper thighs and breasts;

2. Sequence 5: inciting her to touch and rub his penis;

3. Sequence 3: fellatio; and

4. Sequence 6: attempted anal penetration.

5. The duration of the acts: the first incident (whilst it is unclear) was likely brief; the second incident was also relatively brief but likely several minutes.

6. Each incident appears to have been largely opportunistic and impulsive with little indication either incident was pre-planned to any significant extent.

7. The two incidents were isolated with the offender voluntarily ceasing his offending conduct following the second incident.

8. Each offence occurred in the Victim’s home – this is an aggravating factor.

9. However there is insufficient evidence to find that on either occasion the offender was in a position of trust sufficient to constitute that aggravating factor.

37. In relation to sequence 1, the Crown accepted that there was no planning and I am satisfied that this was so. [8] There is no evidence that indicates that the contact was skin on skin. I accept by reference to the description given in the agreed facts that the incident was of relatively short duration ceasing in circumstances of the Offender hearing the front door opening. The offence was aggravated by being committed in the Victim’s home.

    8. T 12.21-.24.

38. The offence itself embraces children under sixteen with the Victim at the time being between 9 and 10 years of age with the relevant age difference being between 6 and 7 years.

39. In respect of the bathroom incident the Juvenile Justice Report recorded:

During discussions with the Offender it was evident that there was a mild degree of planning. This planning was primarily geared towards avoiding the consequence of the offence. [DT] discussed such planning (evident by waiting until he and the Victim were alone, waking up early to meet the Victim in the bathroom) in terms of the need to maintain discretion, so that his family would not find out. [9]

9. Exhibit B, p 3.

40. In the circumstances, the Defence accepted that in relation to the bathroom incident there was some evidence of pre-contemplation arising from the fact that the Offender waited until the Victim was alone; however, it was submitted that would not be sufficient to ignore the fact that the behaviour was impulsive. In particular, counsel drew attention to the contents of [28] of Ms Marten’s report (quoted above) to contend that the Offender’s actions were actions taken in the context of an opportunity presented that morning. [10] Accordingly the Defence contended that sequences 3, 5 and 6 were largely opportunistic.

    10. T 12.29-.45.

41. The Crown made no contrary submission. I accept that the offending in the bathroom incident was largely opportunistic.

42. The offence the subject of Sequences 3, 5, and 6 embrace children under the age of 10 years. In each instance it can be accepted that the Victim was at the higher end of the age group embraced by the respective offence provisions with the relevant age difference being again between 6 and 7 years. Each occurred in the Victim’s home, an aggravating factor under s 21 A(2) of the 1999 Act.

43. Sequence 5 preceded sequence 3 and involved the Victim being asked to get on her knees, before being asked to rub the Offender’s penis which she did using her hands in an up and down motion. The duration of this act was not described but in its context I am satisfied that it was of a relatively short duration

44. Sequence 3 involved fellatio for around one minute. It was preceded by the Victim licking the sides of the penis, although the Offender had requested the Victim to lick the top of the penis. Some force was applied to the Victim’s head on two occasions to bring it forwards to the penis. The Victim had been instructed to make the penis wet. The Victim complied in the manner indicated but expressed her disgust at the request.

45. Sequence 6 was longer in duration than Sequence 3. with the Offender attempting to penetrate the Victim’s bottom. The Victim was told to position herself by standing up, bending down and placing her hands against the wall. The Offender pulled down the Victim’s underwear and pants. He moved his penis backwards and forwards for several minutes attempting to penetrate the anus, causing a little pain. The Victim was uncomfortable and disgusted and the incident only ceased when the Victim heard a noise outside and the Offender stopped.

46. In relation to all sequences the Crown conceded that this was not a circumstance where it was submitting that the aggravating factor for breach of position of trust could be established. Nevertheless, it contended that the age difference between the Victim and the Offender was such that the Victim saw the Offender as her elder and the agreed facts acknowledged that the Victim was raised to respect her elders. [11] The agreed facts reveal this to be the case in the bathroom incident, and I accept it is so. Sequence 1 occurred in the context of the Victim playing a game and the Victim being asked to sit on the Offender’s lap so he could “watch her.”

    11. T 33.26-.38.

47. It was submitted by the Defence that bearing in mind the age of the Offender, each offence should be found towards the bottom end of the range. [12]

    12. Defence written submissions at [10].

48. The Crown submitted that Sequence 1 fell slightly below the mid-range. [13] In the case of sequence 5, the Crown submitted that this fell above the mid-range, while Sequence 3 fell towards the bottom of the mid-range, but well above the low range, and Sequence 6 would be in the mid-range.

    13. T 34.38.

49. It is unnecessary to specify where the objective factors lie in relation to the range of offences embraced by the respective provisions. [14] Clearly each offence provision covers a range, including much more serious acts and acts committed by adults. The fact that the conduct in this case falls within the same laws shows Parliament’s intention as to the seriousness of the offences. Equally it is clear that there are far more serious examples of such offending.

    14. R v Georgopoulos [2010] NSWCCA 246.

50. Here an important feature of the offending going to objective seriousness is the age of the Offender which distinguishes itself from an adult in a similar situation. In particular I adopt the useful statements of principle referred to by Hamill J in Paul Campbell v R, which acknowledged that adolescents do not possess the same development level of cognitive or psychological maturity of adults and have difficult regulating their needs, impulses and behaviours. [15]

    15. [2018] NSWCCA 87 at [30]-[32] (Bathurst CJ and Schmidt J agreeing)

51. Also bearing in mind the contents of Ms Martin’s report I am satisfied the Offender’s age, maturity and intellectual functioning impacted on his capacity to fully consider the consequences of his actions and control his impulses; matters which in my view reduce his moral culpability.

Subjective Circumstances

Plea of Guilty

52. The Offender pleaded guilty at the earliest opportunity and it is accepted that he is entitled to a discount of 25%. [16]

    16. 1999 Act ss 21A(3)(k) and 22.

Remorse

53. The Offender admitted the offences when confronted in relation to them by Police. The Juvenile Justice Report indicates that when discussing the offences, the Offender was unable to make eye contact or articulate himself without prompting and that this was possibly due to the Offender’s feelings of shame. It further records that since being charged, the Offender’s moods have deteriorated and he has admitted to having thoughts about suicide. Furthermore, the Offender isolates himself from others because he is “embarrassed” and “judged”, however he finds comfort with his current partner.

53. Under the heading of attitudes and beliefs, the Report records at page 4:

During the course of the assessment interviews, this author engaged [DT] in a discussion around the impact of his actions on the Victim. [DT] did not offer any minimisation or justification for the harm caused to the Victim and demonstrated an understanding of the types of harm that he may have caused. [DT] was able to identify that the Victim may have felt ‘scared, embarrassed and intimidated’ by his behaviour. [DT] was also able to identify that the Victim may be suffering more long term consequences such as ‘not trusting anyone, especially men,’ ‘no confidence and detaching herself from everyone’ and ‘hating affection from people’. [DT]’s responses reflected insight into the impact of the offences on the Victim.

[DT] was able to acknowledge that his decision to commit the abovementioned offences was based on a “selfish” desire to satisfy his own needs at the time, without any consideration for the impact on the Victim. [DT] further reported that he takes full responsibility for his behaviour, adding that he feels that he has “matured” and is “more considerate” of others than the 16 year old boy he was when he committed the offences.

During discussions about the offences, it was noted that [DT]’s affect (no eye contact, lowered head, his mood blunted) reflected expressions of remorse, which may indicate empathy for the Victim. There was no evidence of Victim blaming, nor did [DT] minimise his role in the offences.

55. The report of Ms Katie Martens also records that the Offender has voiced regrets for his behaviour. [17]

    17. Exhibit B, [28].

56. The Offender does not have a history of prior offending, and I note that in relation to the offending, his conduct ceased in circumstances where he was disgusted in himself. I also accept that he is deeply ashamed over his conduct.

57. Although the Offender did not give evidence before me I am satisfied that remorse has been demonstrated within the terms of section 21A(3)(i) of the 1999 Act.

Education and Work History

58. The Offender attended school until Year 11, and left due to a lack of motivation to continue. Since leaving school, he has worked in a construction field fabricating frames for houses. He stated that he had worked in his current role for 1.5 years, and prior to this worked in a similar role for around 1 year. He stated that he had a good relationship with his employer and colleagues and works full time, sometimes extending to a six day work week.

59. The Offender’s employment history is confirmed by pay slips which were tendered as Exhibit 5.

Health

60. Ms Martens records that the Offender described a period of low mood approximately 2 years ago, that was precipitated by two of his cousins committing suicide within a short period of time. He described symptoms of lack of motivation, isolation from others and a sense of being a failure, and spending excessive time sleeping. It was recorded that the Offender attempted to commit suicide a week after one of his cousin’s passed away, but was stopped by his mother. The Report records that while he has improved, he struggles with his low mood which impacts on his daily life, causing sleep disturbance.

61. The report further records that the Offender re-experiences traumatic childhood experiences through intensive intrusive memories. Whilst these memories are infrequent, the Offender would become distressed. Ms Martens describes these symptoms consistent with an episode of major depressive disorder. She notes that the Offender did not access intervention and is still reluctant to do so.

Likelihood of Reoffending and Prospects of Rehabilitation

62. The Offender was raised by his biological parents. He is recorded as having in excess of 10 siblings, all step siblings. He reported to Ms Martens that he only shared a close relationship with one step sister, who also lives in Australia. Ms Martens’ report records that the Offender stated that his parents had high expectations for him, academically, and expected that he would attend university and be successful in educational pursuits. He recalled that this pressure to succeed had been difficult for him to cope with, particularly as he had limited interest and ability in schooling. He otherwise reflected that he had a happy childhood and did not recall observing any violence between his parents and denied any exposure to substance abuse. He was unaware of any financial poverty.

63. He did however, disclose that he was exposed to a violent altercation between his paternal extended family and his mother. The offender stated that his mother was seriously injured during this incident and has been “scarred for life”. Ms Martens records that the Offender has had difficulty coping with this experience. Consequently, the Offender has had no real contact with his paternal family.

64. The Offender moved out of home at the age of 13 to live with his maternal aunt and uncle, and had done so because he was lonely at home and liked the prospect of living with his cousins. He returned to the family home around one year later due to being homesick and resided with his parents until the current charges. He now resides with his uncle and aunty, as the Victim of the charges is living with his parents.

65. In relation to his offending, his parents are deeply saddened by his conduct but have maintained support for him. The report records however, that the Offender has fractured relationships with his wider family unit.

66. I accept based on the information before me that the parents of the Offender, whilst saddened and deeply emotional over the events, nevertheless continue to support the Offender. [18]

    18. See Exhibit 2.

67. The Offender also has the support of his church. [19]

    19. Exhibit 3.

68. Both Ms Martens’ report and the Juvenile Justice Report record that the Offender is currently in a long term stable relationship. They note that the Offender associates only with his partner, her family, and church associates, who he describes as people who have a positive influence on him and who he can trust and rely on. He has also had some engagement with Youth off the Streets.

69. The Offender’s employer has also provided a reference indicating that the Offender is a valued member of the team and has progressed to the position of Team Leader, managing up to 20 people in a fast paced environment. [20]

    20. Exhibit 4.

70. Ms Martens records that in her opinion, the Offender is at low risk of any sexual reoffending, as the Offender has not evidenced any sexual deviance or any social behaviour in general and it is unlikely that his offending behaviour would be predictive of future sexual misconduct. Nevertheless, Ms Martens records that there are some factors which would serve to exacerbate risk, namely the Offender’s depressed mood, limited insight into his emotional experience and avoidance of peer relationships. To this end she stated that he would benefit from intervention to address his depressed mood and better understand his offending behaviour and to repair his familial relationships. Whilst I accept this opinion I also note that the Offender has not reoffended in the time that has elapsed since the relevant incidents.

71. Overall, I accept that the Offender has reasonable prospects of rehabilitation and a low likelihood of reoffending.

SENTENCE

72. In sentencing the Offender I am mindful of the important principles set out in section 6(1) of the Children (Criminal Proceedings) Act 1987 (NSW). I have regard to all those principles, but most relevantly:

(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,

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

73. I am conscious of the fact that section 6(1)(h) provides that the effect of the crime on the Victim is to be considered, but subject to the principles set out in the earlier paragraphs. [21]

    21. Paul Campbell v R [2018] NSWCCA 87 at [24]-[32] per Hamill J (with whom Bathurst CJ and Schmidt J agreed).

74. I am also mindful of what was said by Hodgson JA in BP v R [22] in relation to the application of principles of retribution and rehabilitation in the case of young offenders. Those principles are of application in the current case.

    22. BP v R [2010] NSWCCA 159 at [4]-[6]

75. I accept that notwithstanding the fact that the Offender is no longer a child, his cognitive and psychological functioning at the time, combined with the generally spontaneous nature of the offending is such that the need for general deterrence is moderated. In terms of specific deterrence I accept that this factor requires no particular emphasis bearing in mind the factors earlier referred to.

76. There is also no particular need to provide for protection of the community beyond recognising that the successful rehabilitation of the Offender will also be in the community’s interest in this regard.

77. Nevertheless the offending needs to be denounced and the Offender made accountable within an overall proportionate sentence.

78. In setting the appropriate sentence the Defence drew attention to the fact that prior to the amendments brought about by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW), JIRS sentencing statistics indicated that for offences under s 66A(1) committed by under 18 year olds with no priors and following a plea of guilty, 73.7% of persons (14 in total) received suspended sentences and 5.3% (1 in total) received a s 9 bond.

79. The Defence acknowledged that the 2018 Act abolished suspended sentences and it was not open to the Court to impose an intensive corrections order. In these circumstances, it was said that the previous statutory context included an alternative measure, albeit at a late stage, that would alleviate that juvenile potentially from being required to serve the sentence by way of full time imprisonment. It was argued that in light of the amendments, the question of whether the s 5(1) threshold in the 1999 Act has been met has greater importance because in effect it is determinative of an outcome of full time imprisonment, being an outcome which was not necessarily the case prior to the amendments with the availability of a suspended sentence. In these circumstances, the Court was urged to synthesise an appropriate sentence and in doing so, consider the threshold contained in s 5(1) of the 1999 Act in its current statutory context.

80. The Crown contended that the Defence submission ignores the approach outlined in R v Zamagias, [23] which requires the Court to determine whether there are alternatives to imprisonment, and if there are not, to determine the term of the sentence, and then, finally if the length allows for it, the question of whether or not an alternative to full time imprisonment is available that could meet the purposes of sentencing. The Crown contended that to take an alternative approach would be circumventing the intention of the legislature and sentencing contrary to the principles in R v Zamagias.

    23. [2002] NSWCCA 17 at [25]-[27] (Per Howie J, with whom Hodgson JA and Levine J agreed).

81. The Crown submitted that it cannot be that there is a different test for the threshold that applies in a case on a prescribed sexual offence simply because the legislature has excluded intensive corrections orders and has repealed the availability of suspended sentences.

82. In R v Seller; R v McCarthy, [24] Bathurst CJ (with whom McClellan CJ at CL and Rothman J agreed) stated at [100]:

Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 463; Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis at [7.23].

24. [2013] NSWCCA 42.

83. Beyond referring to the change in the statutory context, the Defence did not seek to argue how by reason of 2018 Act amendments, the will of the legislature can be interpreted to change the meaning of s 5(1) of the 1999 Act.

84. In any event I accept that the approach in R v Zamagias is still to be followed. Notwithstanding the positive subjective factors in the Offender’s favour, the objective seriousness of the offending satisfies me that no other penalty other than imprisonment is appropriate. I acknowledge that this may not have been the case with sequence 1 had it stood alone.

85. In setting the appropriate term, I have regard to the delay in this matter coming before the Court which has meant that the Offender is not eligible to serve the sentence in a Juvenile Justice Centre resulting in interruption of his post offence rehabilitation and him having to serve any imprisonment in adult custody. [25]

    25. Sabra v R [2015] NSWCCA 38 at [45] per Bellew J (with whom Meagher JA and Schmidt J agreed).

86. This will be the Offender’s first term of imprisonment. By reason of that fact, his age and good prospects of rehabilitation I am satisfied that a finding of special circumstances is justified.

87. I propose to proceed by way of aggregate sentence.

88. The individual sentences that I would indicate taking into account the plea are as follows:

1. Sequence 1; 6 months (10 years maximum - aggravated (under 16 years) indecent assault)

2. Sequence 5; 12 months (7 years maximum - incite child under 10 years to commit act of indecency)

3. Sequence 3; 2 years and 3 months (25 years maximum - sexual intercourse with child under 10 years)

4. Sequence 6;    2 years and 3 months (25 years maximum- attempted sexual intercourse child under 10 years)

89. I bear in mind that the offences involved a single Victim and the fact that the offences in sequences 3, 5 and 6 were part of a single incident of offending.

90. Taking into account principles of concurrency accumulation and totality, I would set an aggregate term of 3 years and 4 months comprising;

1. a non-parole period of 1 year and 8 months from 8 November 2019 to 7 July 2021; and

2. an additional term of 1 year and 8 months from 8 July 2021 to 7 March 2023, during which the Offender will be eligible to be released to parole.

91. Subject to the decision of the State Parole Authority, the Offender’s earliest release date shall be 7 July 2021.

92. I recommend to the Commissioner of Corrective Services that the Offender be placed in the Young Adult Offenders Programme.

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Endnotes

Decision last updated: 19 November 2019