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

District Court

New South Wales

Medium Neutral Citation: R v DW (No 1) [2020] NSWDC 461
Hearing dates: 20 March 2020
Date of orders: 11 May 2020
Decision date: 11 May 2020
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Convicted and ordered to comply with Community Correction Orders for a period of 3 years

Catchwords:
CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 – child offender – extensive delay – rehabilitation – sentencing children who commit child sex offences – non-custodial sentence

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes(Sentencing Procedure) Act 1999
Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018

Cases Cited:
Knight v The Queen [2015] NSWCCA 222
MagnusonvR [2013] NSWCCA 50
Mill v R (1988) 166 CLR 59
Moon v R [2000] NSWCCA 534; 117 A Crim R 497
MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93
Parente v R [2017] NSWCCA 284; 96 NSWLR 633
PaulCampbell v R [2018] NSWCCA 87
R v BJW (2000) 112 A Crim R 1
R v Campbell (a pseudonym) [2017] NSWDC 359
RvCattell [2019] NSWCCA 297
R v Cattell [2019] NSWDC 504
R v DS (Paul Campbell) NSWDC (unreported) 13 December 2018
R v Elliott and Blessington [2006] NSWCCA 305
R v MJR (2002) 54 NSWLR 368
R v Moon [2000] NSWCCA 534
R v PGW [2002] QCA 462;134 A Crim R 593
R v SW NSWDC (unreported) 10 September 2018
R v Tepania [2018] NSWCCA 247
R v Todd [1982] 2 NSWLR 517
R v Tomlinson NSWDC (unreported) 25 February 2019
RC v R; R v RC [2020] NSWCCA 76
ReginavRP [2018] NSWDC 125
RL v R [2015] NSWCCA 106
RP v R [2015] NSWCCA 215
The Queen v Pham [2015] HCA 39

Texts Cited:
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (presented 15 December 2017)

Category: Sentence
Parties: Regina (Crown)
DW (Offender)
Representation:
Counsel:
Ms C Davenport SC with Ms M Humphreys for the offender
Solicitors:
Mr D Coulton for the Crown

File Number(s): 2019/00108682
Publication restriction: Non-publication order in relation to names of offender and complainants or any features which may tend to identify them

Judgment

DW appears for sentence with respect to three counts of sexual misconduct with two young girls in approximately 1991.
He has pleaded guilty to one count of attempting sexual intercourse with a child aged between 10 and 16 years, contrary to s 66D of the Crimes Act 1900, and one count of sexual intercourse with the same child, contrary to the provisions of s 66C(1).
He has also pleaded guilty to one count of indecent assault of a second child who was under 10 years of age at the time, contrary to the provisions of s 61M(2) of the Crimes Act. Three additional acts of indecency with the first girl have been included on a Form 1. These acts are offences contrary to s 61M(1) of the Crimes Act.
Each of the victims, and the offender himself, were children at the time of the offending. As such, there is to be no publication of their names or of any features which may tend to identify them, pursuant to s.15A(1) of the Children (Criminal Proceedings) Act 1987. They are referred to in these Remarks either by alphabetical letters or pseudonyms.

Facts giving rise to the offences

DW was 15 years of age in 1991. His birthday was in January and he had commenced Year 10 at the High School which he was then attending. He lived with his family in a suburb in the Illawarra. The street in which he resided was effectively a cul-de-sac and the modern houses in the area were a housing estate development.
On the opposite side of the road from the offender’s family, in adjacent houses, lived two young girls. The older girl, Mary, was 11 years of age when her family moved into the street in about March 1991. The younger girl, Barbara, who lived next-door to Mary, was about 5 and a half years of age at that time. Mary and Barbara became close friends and would often play together.
Mary also became close friends with the offender. He would often call Mary to come over to his house from his balcony. Mary would go to his house when he called because she believed they were friends. The offender would call her “little chick” and Mary described the offender as being “smooth” in his attitude towards her.
At some time after Mary had moved into the neighbourhood in March 1991, a degree of sexual interaction between the offender and Mary commenced. The seriousness of the sexual misconduct towards Mary would appear to have increased over the following period of approximately 9 – 10 months.
Mary was in Year 6 at Primary School in 1991. All of the offending conduct had ceased by the time Mary commenced Year 7 in about February 1992.
The first described incident in the sentence proceedings before me relates to an occasion when Mary was playing in a neighbour’s house together with a group of children, which included Barbara and also the offender. Notwithstanding the presence of the other children, the offender pulled Mary aside and tried to kiss her on the lips. The Agreed Facts state that he “touched her all over her body”. It is said that he did this secretly so that the other children did not see what was happening. He tried to put his hand into Mary’s pants, at which stage one of the other children asked what was going on between them.
This incident has been charged as an aggravated indecent assault. The circumstance of aggravation is that it was committed on a child under 16 years of age. Such an offence contravened s 61M(1) of the Crimes Act 1900. In 1991 it carried a maximum penalty of seven years imprisonment. This offence has been placed on the Form 1 to be taken into account in relation to a later charged offence under s 66C(1), to which I will come in due course.
Mary was 11 years old at the time, having turned 11 in December 1990.
A second incident occurred on another occasion when Mary was visiting the offender at his house. The two children were in the garage of the house, which was able to be accessed via an internal door. The garage was closed and there were no cars or furniture in the garage. Whilst the offender and Mary were standing up and facing each other the offender kissed her, as well as feeling her breasts with his hands. He then sucked her breasts. The offender subsequently moved his hand into Mary’s pants and began rubbing her genital area. He also took her hand and put it inside his pants on his erect penis.
This incident gave rise to two additional charges of aggravated incident assault on a child, contrary to s 61M(1) of the Crimes Act 1900. Each of these offences has also been placed on the Form 1 to be taken into account on the s 66C(1) offence, to which I will come shortly.
The next incident described in the Agreed Facts is said to have occurred when Mary was about 12 and Barbara was about 6. The Agreed Facts state that it was on an occasion in 1991. By reference to the date of Mary’s birthday and by reference to the offender’s birthday and the circumstance that the Agreed Facts say that Barbara was in her school uniform, it is highly likely that this incident was towards the end of the school year, and in fact shortly before Mary turned 12 in late December. The offender would still have been 15 years of age.
The offender called out to Mary from his balcony, asking her to come over to his house. After first going back inside her own house to ask her mother if she was allowed to go, Mary went over to the offender’s house. She was accompanied by Barbara, who went with her. The offender was home alone at the time.
The two girls went into the house and went to the offender’s bedroom door. The offender asked Mary, “What did you bring her for?” The two girls were guided into his bedroom and he closed the door. The offender sat on a computer chair while the girls were standing together at the side of the room. The offender grabbed Barbara’s school dress a few times and pulled it up in a joking fashion. Barbara laughed nervously and said, “No, don’t.” She pushed his hand away and tried to pull her dress back down.
Shortly afterwards, the offender and Mary got into the offender’s bed. They both invited Barbara to get into bed with them. She did so. The offender ran his hand down Barbara’s chest and stomach. He then put his hand into the top of her clothing and into her underpants. He touched her genital area. There was no penetration. The offender whispered to Barbara, “Do you like that?”
Barbara says that she felt dirty and she knew, even at that age, that the conduct was not right. Barbara said she wanted to go home and got up from the bed and left the house.
Mary stayed in the bed with the offender. The offender attempted to have penile vaginal intercourse with her. Mary said several times that she did not want to but the offender ignored her and tried to have intercourse.
The conduct in the bedroom has resulted in a substantive charge of indecent assault of a child under 10 with respect to the offender’s conduct towards Barbara. This was an offence contrary to s 61M(2) of the Crimes Act 1900 and in 1991 carried a maximum penalty of 10 years imprisonment. Based on the likely timing of the incident and the fact that Barbara had her birthday in August, she was likely 6 years of age at the time. The offender himself would still have been 15.
With respect to his attempt to have penile vaginal intercourse with Mary, the offender has been charged with attempting to have sexual intercourse with a child aged between 10 and 16 years. This conduct contravenes s 66D of the Crimes Act 1900 and carried a maximum penalty of 8 years imprisonment at the time.
These two offences comprise two of the substantive offences before me.
On what would seem likely to have been a subsequent occasion, Mary was again with the offender in the bedroom of his home. Mary was lying on her back on his bedroom floor. The offender asked her to take her underwear off. Mary refused. In due course the offender forced Mary’s underwear down, although her underpants were not fully removed. He kissed her neck and told her it was okay. He told her to relax.
The offender then got on top of Mary and tried to put his penis into her vagina. He had difficulty and was not able to penetrate her. His attempts caused her pain. In due course he was able to penetrate her vagina. She was scared and her body was stiff. The offender was described as having got frustrated because Mary could not or would not relax. He had difficulty moving his penis inside her.
Shortly after, Mary left the bedroom and returned home. She found a small amount of blood in her underwear.
Mary subsequently indicated that the incidents of sexual misconduct with the offender had stopped by the time she started Year 7.
This incident of actual sexual intercourse with a child between 10 and 16 years of age led to the third substantive offence before me, which is a contravention of s 66C(1) of the Crimes Act 1900. This offence also carried a maximum penalty of 8 years imprisonment. It is this offence to which the three aggravated indecent assault offences referred to earlier are to be taken into account following their inclusion on the Form 1.

Complaint

Over the years following the sexual misconduct by the offender, each of the victims made various disclosures to school friends. Mary told her best friend in High School when she was about 13 years of age that she had been sexually abused by her neighbour, the offender, when she was younger.
Approximately 5 or 6 years after the event involving Barbara, she similarly disclosed to her best friend, then in Year 7, that something had happened to her years before. Barbara’s account at that time was that:

There was a girl that lived in the street and her boyfriend lived across the road. The girl took me to the boyfriend’s house and we went into his bedroom. They got on the bed and then they encouraged me to get into the bed with them. They were doing things with each other and then they involved me in it.

Shortly before her 33rd birthday, in about July 2018, Barbara told her husband about the event. Her husband encouraged her to report the matter to police.
In February 2019 Mary, by now 39 years of age, told her mother about the events. She told her mother the offender had tried to have sexual intercourse with her when she was younger but that he could not go all the way because she was too small. She told her mother that it had occurred in his bedroom and that on one occasion he had hurt her and made her bleed. Mary also told her mother what she had witnessed the offender do to Barbara.

The pleas of guilty

Following the matters being reported to police, the offender attended Wollongong Police Station on 8 April 2019. He was arrested and charged. On 11 September 2019 he consented to committal for trial with respect to 13 counts which had been charged arising from his alleged conduct with Mary and a further two counts with respect to alleged conduct with Barbara.
On 1 October 2019 the offender was arraigned on an indictment which contained five counts. He pleaded not guilty to those five counts. The matter was in due course listed for a trial to commence on 25 February 2020. On that occasion a fresh indictment containing the three counts to which pleas of guilty have been entered was presented.

Discount for plea

Mandatory discounts are now specified by statute in Division 1A of the Crimes (Sentencing Procedure) Act 1999 No 92. The percentage discount from an otherwise appropriate sentence varies according to the timing and circumstances of the entering of the plea: see s 25D.
The substantive count of attempted sexual intercourse with Mary was an allegation which formed part of the case conference held prior to committal. The offer to plead guilty was provided to the Crown only a week before the trial was due to start. Accordingly, the legislated discount of five per cent applies to this matter.
The substantive count of indecent assault of a child under ten relating to the conduct towards Barbara on the same occasion was originally an allegation of a more serious charge at the time of the case conference. No offer to plead to a lesser offence was made at that time. The amended indictment was indicated as a plea of guilty in the week prior to the trial commencing. The Crown submits that a five per cent discount should apply to this offence also. No contrary submission was made on behalf of the offender.
The substantive offence of sexual intercourse with Mary was originally charged as an attempt, no doubt in conformity with the detail of Mary’s complaint to her mother. That count was upgraded to the actual commission of sexual intercourse in an ex officio indictment which was filed the week prior to trial. In the absence of any offer to plead to the attempt at case conference stage, the Crown submits that a five per cent discount should apply to this offence also. Again there was no contrary submission on behalf of the offender.
I should note, whilst dealing with mandatory discounts, that s 25A(1)(b) excludes from the operation of Division 1A offences where were committed by a person under the age of 18 years, provided that they are under the age of 21 years when charged with the offence. This is a matter properly to be considered when dealing with delay.

Impact on victims

The Courts have long recognised the ongoing adverse psychological consequences on victims of childhood sexual abuse. Frequent statements of principle have often been repeated in the New South Wales Court of Criminal Appeal. In R v BJW (2000) 112 A Crim R 1, Sheller JA said with respect to child sexual assault offences:

The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at [154] (emphasis added).

The Courts have also recognised a change over time in community attitudes to child sexual assault. In R v MJR (2002) 54 NSWLR 368 at [57], Mason P expressed the view that there has been a pattern of increasing sentences for child sexual assault and that this:

… has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes.

The common law recognition of the harm done to victims now has statutory effect: see s 3A(g) of the Crimes (Sentencing Procedure) Act 1999. Section 6 of the Children (Criminal Proceedings) Act 1987 also requires, subject to the other principles described in that section, that consideration should be given to the effect of any crime on the victim.
The Courts and the community are now far more aware as to the long‑term consequences of sexual abuse upon children. A victim impact statement is not required to comprehend that sexual offending of a child causes ongoing harm.
In the present matter, both the child victims have suffered ongoing harm as a consequence of the offender’s conduct and both of them have prepared and read aloud to the Court their victim impact statements.
Mary, who was approaching 12 at the time of the most serious offending, described the rollercoaster life of emotions that she has lived as a consequence of the offender’s actions. She described having been on medication and seeing counsellors and psychiatrists. She states having been recently diagnosed with post-traumatic stress disorder. She is married and has children and expressed the fears and anxieties that she holds with respect to her own children being taken advantage of by someone else. She thought that she will always need reminding that none of what happened was her fault.
Mary articulated the strength which had built up inside her to enable her to stand up and report what the offender had done, after having held on to it for so long. She concluded her statement by saying:

It is unfortunate though that this will never take away the trauma of his actions, but I hope now that I may be able to move forward with my life with the support of professionals and my family.

The second victim, Barbara, also read aloud her victim impact statement. She said that her childhood and happiness were taken away from her by the actions of the offender. She said that she always had an uneasy feeling being around older men and that she grew up allowing them to have control over her. Consequently, she said that she had been led into some poor choices of boyfriends.
Barbara described having not understood that the early event of sexual assault had helped form her personality and the way that she felt and behaved around men. She described a number of hospital admissions and psychiatric and psychological appointments. She thought the incident had an overwhelmingly negative effect on her personal relationships. She had been afraid of trusting people throughout her life.
She is now 34 years of age and outlined a diagnosis of complex PTSD, acute anxiety and a depression disorder. She is married with two children. Her second child was a girl and she describes feeling paranoid and fearful that something similar would happen to her daughter. She remains concerned that she has become an over-protective parent. She decided to report the assault to police after giving birth to her baby daughter.
Barbara described that she no longer wants to carry the pain and fear that came into her life as a consequence of the assault. She said:

I want to shift the blame and guilt that I have been carrying for years onto this person that took my innocence and trust away.

This Court recognises and acknowledges the ongoing harm which has been suffered by both of the victims in this matter. Recent amendments to the Crimes (Sentencing Procedure) Act with respect to passing sentence for child sexual offences requires the Court to have regard to the trauma of sexual abuse on children as understood at the date of sentencing; see s 25AA(3).

The Court seeks, both in these Remarks and in the sentence which I will impose upon the offender, to recognise the effect of his offences upon both of the victims. The harm suffered by them is not to be measured against the actual sentence imposed. The Court recognises that no sentence can reflect the impact the offences have had and the harm which has been caused to both victims.
Whilst in no way minimising the effect of DW’s offending on each of the victims, I am not of the view that there is evidence establishing beyond reasonable doubt that the impact in either case amounts to a separate aggravating feature. I will, however, give appropriate consideration to the effect of the crimes on each of the victims.

Objective seriousness

None of the offences charged were “children’s serious indictable offences” within the definition of such offences in the Children (Criminal Proceedings) Act. None of them, in 1991, carried standard non-parole periods (which would not apply to offending under 18 years of age in any event). It is in such circumstances not strictly necessary to express a determined view as to where on a scale of objective seriousness, with any precision, each of the offences falls.
Whilst a consideration of moral culpability falls for determination on a consideration of subjective matters, factors such as the mental state or the youth of an offender do play a relevant part in a consideration of objective seriousness: see for example R v Tepania [2018] NSWCCA 247 per Johnson J.
In my view, the conduct of a 15-year-old boy towards both victims demonstrated a degree of immaturity and perchance an element of adolescent sexual experimentation. The age of the older of the victims falls towards the lower end of the range specified by the legislature in 1991. The age range with respect to victims was, as I have already pointed out, between 10 and 16 years. I note that the legislation was subsequently amended to between ages of 10 and 14 years.
The victim Mary was, on the facts as I find them, approaching her 12th birthday at the time of the attempted intercourse. Given that all of the offending had ceased by time she commenced Year 7 in 1992, the subsequent actual act of intercourse was either closer to her 12th birthday or possibly shortly after it. The age gap between the offender and his older victim was approximately four years.
The two substantive charged acts with respect to Mary occurred within a short time of each other. Whilst not of the lowest level, by reference to factual circumstances in other matters they fall, in my view, under the mid-range of objective seriousness.
The matters included on the Form 1, being charges under s 61M(1), fall substantially under the mid-range for such offences.
The offending against Barbara constituted an offence contrary to s 61M(2) of the Crimes Act. It occurred in the context of the two older children inviting her to get into bed with them. It was a single instance of offending and involved touching without penetration. However, it did involve what is described as “skin on skin” contact. The objective seriousness is elevated on that account and also by virtue of the young age of the victim.
Whilst not of the lowest order of seriousness however, this offending, committed as it was by a child on another child, falls below the mid-range of objective seriousness.

Subjective circumstances.

The offender himself did not give any evidence in the proceedings.
However, his older sister was called and gave evidence. She is three and a half years older than the offender. The offender himself is now 44 years of age.
His sister described the offender as having had a normal childhood until a number of events occurred. In 1988, when the offender was 12, their mother’s father (“Pop”) had passed away. In the same year their mother was diagnosed with cancer and after a 12-month battle with that disease she died in August 1989. The offender was 13 years of age at the time.
Their father at this time was working as a coal miner. Following the death of his wife, their father found it too hard to stay in the family home that they had previously lived in. In 1989 they moved into a rental property and their father purchased a block of land, on which the house where the offences occurred was, in due course, built. The offender and the rest of the family had no counselling following the loss of their mother and the family did not talk about it. The offender’s sister described it as “too hard to stay” in the original home, which contained “too many memories”. Their father continued to work in the mines. He worked the day shift, which meant that he would leave home before 6am.
The offender’s sister completed her final year at High School in 1990.
The following year, 1991, which I note in passing was the year of the offending, she started at TAFE. She had a boyfriend at that time and also worked casually at Coles. Their father was still working long hours in the mines. Whilst she would see her brother, the offender, at some point in the afternoon on most days, it would appear clear that he spent much time on his own. The only member of their extended family with whom there was any contact was the maternal grandmother, who was still alive.
The offender’s sister said that the offender left school in 1992 and started an apprenticeship. She herself was subsequently married in 1998. That relationship broke up within 18 months and she described her brother as being a massive support at that time in her life. He would have been approximately 23 years of age by that time. She moved in with him for about six months. She has since remarried and has two daughters, who are very close with their uncle, the offender. She indicated that she was aware of the charges. She was not cross‑examined.
Additional evidence regarding the subjective circumstances of the offender was provided to the Court in the form of a number of testimonials, which were tendered without objection and became Exhibit 3.
The offender’s wife is now 39 years of age. She met the offender when she was about 19 in about 2000 and they commenced a romantic relationship in around 2001. Although each of them had previously been married briefly, neither of them had children from those earlier marriages. After moving in together, they purchased a home jointly later in 2001. They still live in the same home.
At the time his wife met the offender, he was working at a quarry as a plant mechanic. They were married in 2003 and thereafter have had three children. From the time of the birth of their first child in 2004 and up until 2010 the offender was the sole financial provider for the family. The second and third children were born respectively in 2007 and 2008.
The offender’s wife described a totally supportive husband. She said:

Not only did he support us financially, but he was always present for us emotionally and physically. He would assist me with cleaning, cooking and the general running of the home. He was always taking the kids to activities they needed to go to so that I could have some reprieve.

In 2004 the offender left his employment as a plant mechanic and returned to a former employer, a substantial company involved in coal mining.
His wife described her perception of his reputation in the coal mining company, with which he has remained in constant employment. She described him as:

…someone that is always well-respected by those that know him. He always gives his all to his friends and family. He is supportive, empathetic and the most reliable person I know. He has been so passionate about his career in the mines. He has been in a senior position with [the company] and I always get contacted by his colleagues and his superiors about how much he has supported each and every one of them.

The offender’s wife described her husband having taken on extra roles by participating in mine rescue competitions. His success in such roles had led to him being renowned for his mine rescue techniques and strategies.
The offender also volunteered with the Rural Fire Service for ten years from 1998. He attended training on a weekly basis. He also did extra hours of training and became a crew leader and subsequently the Deputy Captain. He had been involved in fighting the Helensburgh fires in 1998. In 2003 the offender had been involved in fighting the Canberra bushfires and was the Deputy Captain on his truck at that time.
In due course the offender was appointed to a paid position at a fire station in the Illawarra, where he was on‑call. This was in addition to his full‑time role in the mines. In due course the offender left that position as he wished to devote more time to his family and assist in more activities with their three children.
His wife described in detail the offender’s diligent approach to being a father to their children. He assisted in their learning to swim, he coached their son’s football team and also representative teams for many years. He took his son to cricket and assisted him throughout his schooling with his schoolwork. Their son is now nearly 16 years of age and his father takes him to and from his part-time job.
His wife described the offender being heavily involved with one of their two daughters’ participation in dancing. The particular daughter is said to be especially talented as a dancer and the offender has consistently assisted in conveying her and other children to and from eisteddfods and to and from dance lessons. He has also taken their other daughter to hockey and drama classes.
His wife described in particular detail the offender’s provision for the family and for the children, including various overseas trips and other holidays. She said:

He always wanted to provide things for the children that he never had and to teach the children about other cultures and history.

After 2010 the offender’s wife worked part-time as an administration assistant at a local real estate agency. In 2016 she was given the opportunity to transfer into a sales role and in 2017 was approached by a different agency to progress her own career in residential sales. She described, again in detail, the substantial support she received in endeavouring to forge a career for herself from her husband. As a consequence, he took on even more of a role with respect to the children’s activities.
His wife described becoming aware of the offences to which her husband has entered pleas of guilty. She said:

This is not the man that I know and love. I have been very confused with it all. We have never had to engage a lawyer or been familiar with anything of a criminal nature. We have had to extend our mortgage to cover the cost of this all.

She described the effect of the current circumstances on the family. She said:

These series of events has not only turned our lives upside-down, but also the lives of our children, friends and family. We told our children recently and they cannot comprehend what has occurred. It has completely traumatised them and I don’t know what to do or how to support them through this process. They have been having nightmares at the thought of their father being imprisoned for something so long ago and they have a lot of questions that even he can’t answer.

The offender’s wife went on to outline the attendances upon counselling and the circumstance of one of the children also being booked in for counselling. The two older children had declined counselling and did not want to talk about the events with a stranger. I should note that the offender’s children are currently 15, 13 and almost 12.
A further letter of reference was provided by an accountant, who initially knew the offender and his family through the mutual involvement of their respective daughters at dance school. She has known the offender and his family for approximately eight years. The accountant’s husband is a police officer. The two families regularly socialised and spent many occasions together. Their respective pairs of daughters would regularly sleep at each other’s homes and the referee indicated that she had never had any issues with her girls sleeping over at the offender’s home.
The families had been on a Pacific Island cruise together with their children and in late 2017 the two families had travelled around America for some five weeks together. In 2019 they had all travelled to Vietnam for the referee’s 40th birthday.
As such, the accountant referee had spent a very considerable amount of personal and social time in the presence of the offender and his family. She described the offender as:

…a great guy. He is very caring, funny and well-respected within the community. He is a good husband and an excellent dad. He does a lot for the kids. He doesn’t just work and come home and rest, he is a very hands-on dad and is always running the kids around and supporting them in their schooling, activities and life generally. He has always helped us whenever we have needed a hand, including taking our girls to dance.

The accountant referee indicated that she had recently been told about the offences with which the offender has been charged and the guilty pleas which he has entered. She subsequently became aware that her husband had known about the offences for some time as a consequence of his employment as a police officer. Her husband had, to that time, maintained the strictest of confidentiality in relation to his work and had not disclosed his knowledge at an earlier time. However, she is now aware that her husband has remained a pillar of strength for the offender since the time that he was charged.
The referee continues to express the view that the offender remains “a devoted, supportive and encouraging father”.
This referee strongly expressed the proposition that her knowledge as to what had occurred historically had not changed her or her husband’s view of the offender, “nor our trust for him and [his wife] to look after our daughters”. She further stated, “I cannot express enough the level of trust we have in [the offender] and [his wife].” Indeed, in more recent times following a family bereavement, the referee and her husband had left their two daughters, who are now 15 and 12, for a week with the offender and his wife.
A further reference was provided by the ex-wife of a former work colleague of the offender. This referee deposed that she had known the offender and his family for some 14 years. They had children the same age. The two families had spent considerable periods of time together, including numerous social occasions, birthdays and similar celebrations.
Approximately nine years ago the referee had separated from her husband. She remained close friends with the offender and his wife and stayed at their place regularly following the separation. This occurred on weekends when her ex-husband would go to the former family home to spend weekends with his children. She described staying at the offender’s home on those weekends and being able to see what the offender did for his family. She said that it was vastly different from her own husband. She described the offender cooking for the family and being very hands-on with the children. She described:

The kids went to him to get their nails clipped. He was the most supportive, caring and nurturing father I have seen. He was the go-to for the kids for almost everything they needed.

This referee further described the strong support that the offender and his wife had given her to help her throughout the period of her separation. In more recent years she had become particularly close with both the offender and his wife, beyond their previous bond, as a consequence of the three of them going to a gym together. She described her admiration for the way the offender and his wife would work around their busy schedules and also their children in order to be able to go to the gym together with her.
This referee, together with her children, had also gone on the joint family holiday to Vietnam for the celebration of the birthday of the accountant referee to whom I have previously referred. She similarly spoke in her reference of having been advised of the offences to which the offender has entered his pleas of guilty. She said that these historical offences do not change her thoughts about the offender nor her opinion of what she described as “the wonderful man he is”. She also indicated that she would still allow her children, who are now aged 15 and 12, to stay at the offender’s home.
The defence tender bundle also included a statement by the relevant officer from the offender’s employer - it is a large mining company - and it provided details about the offender’s current employment and his responsible position as a Training Coordinator. He has been in full-time employment with that company since 2004.
The next reference tendered was from a fellow employee of the mining company. He had known the offender since 2006. The deponent is now the Under Manager of the mine, which is the position immediately below the overall manager. He described the responsibilities of the offender as the Site-training and Mines Rescue Coordinator. He made reference to the experience and qualifications of the offender, who relevantly held a SafeWork NSW explosives licence and security clearance.
The deponent described the offender at his work as being “very respected and highly regarded by everyone”. He described the offender’s role as being “high risk and his judgment is extremely valued by everyone that relies upon him”.
The deponent described in detail the work involved in managing and participating in a mines rescue brigade. Mines rescue teams are called upon in the event of an emergency. Once every six months they are required to respond to a drill at a different mine. Mock evacuations of a mine are coordinated between all emergency services, including Ambulance, New South Wales Fire, New South Wales Police and New South Wales Mines Rescue. The offender’s team was commended in the assessment report following a specific exercise involving the emergency services to which the deponent referred.
The Mines Rescue Teams are also involved in competitions, which are variously conducted on a local, national and international basis. The offender’s team not only won its District but also the World Cup in 2010. In more recent years he has been appointed the captain of his team, which has won five local competitions, two Australian competitions and was due to attend international mines rescue competitions in the United States later this year. Of course, with or without the offender, it would appear highly unlikely that teams from Australia will be able to attend the United States this calendar year.
The deponent of this reference was completely shocked when informed of the offences charged against the offender. He said that he was devastated for the offender’s family and that he was unaware of the implications for the offender’s work and whether or not he would be terminated.
The last reference which was tendered in the defence bundle was from an experienced rugby league coach, who had provided guidance and assistance to the offender as a coach of junior rugby league. They had met in 2010 and the deponent had provided assistance to the offender, who had commenced coaching junior teams without prior experience. The two men subsequently became good friends through their connection with rugby league and were involved together in coaching and managing an Illawarra junior representative side. In addition to coaching and managing different sides, including teams which did not involve his own son, the offender for some years was the club gear steward with responsibility for numerous teams.
The deponent, in his dealings with the offender, had found him to be very organised and trustworthy. He described the level of trust involving the boys playing junior rugby league and their extended families. He was completely shocked on becoming aware of the offences. Notwithstanding, he offered his continuing support to the offender.

I am satisfied with respect to factors in mitigation that the offender has led a blameless and indeed exemplary life since the time he committed the offences which are now before this Court. His devotion to his family and his conduct with family activities has been the subject of praise by outsiders, who are in a position to assess that conduct. He is highly regarded in his workplace, where he performs duties of considerable responsibility and significant importance in the mining industry. He has contributed to his local community in his participation in coaching and managing junior sporting teams.
He has, in my view, demonstrated a level of rehabilitation from his conduct as an immature 15 year old, which is not simply reflected in the absence of any further offending. His complete rehabilitation is not a matter requiring the customary degree of optimism. Rather, it has been eloquently exemplified by his actual conduct.

Sentencing children who commit child sexual offences

There is no doubt that sentencing statistics maintained by the Judicial Commission are, as is frequently described, but a “blunt instrument” for the purpose of comparison with an instant case. Similarly, general outcomes for offences under the same or similar sections can only be indicative of where they fell within a broad range of options.
However, as Bell and Gageler JJ said in The Queen v Pham [2015] HCA 39 at [49]:

Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled [see Knight v The Queen [2015] NSWCCA 222 at [3] – [13] per RA Hulme J] and provided the limitations explained …in Barbaro… are observed. The value of sentencing statistics will vary between offences.

For such assistance as might be gained, and bearing in mind the limitations of bare statistics, I have sought to inform myself as to the broad range of sentences imposed on persons dealt with, predominantly in the District Court, who were under the age of 18 years when they committed the relevant criminal offence.
In giving consideration to the issue of children committing offences against children, I have carefully gone through the reported outcomes in the Judicial Information Research System (JIRS) for the particular sections charged against the offender. I have specifically looked at outcomes where the age of the offender has been identified as “less than 18 years” and the offender has been dealt with according to law.
The three offences contained on the Form 1 are each offences contrary to s 61M(1) of the NSW Crimes Act. The offence is described as one of aggravated indecent assault and, as I have earlier described, in 1991 carried a maximum penalty of seven years imprisonment. The circumstance of aggravation arose because the victim was under the age of 16 years.
The statistics published by the Judicial Commission relate only to cases sentenced since January 2008. In the District Court out of a total of 152 sentences under this section, only four related to an offender who was less than 18 years of age at the time of the commission of the offence.
One offender received the benefit of a dismissal with no conviction recorded pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act. One offender received a section 9 bond, while another received a Community Corrections Order. Only one was imprisoned, with a head sentence of 3 years and a non-parole period of 12 months.
An examination of Local Court statistics with respect to the same section of the Crimes Act discloses only one offender who was less than 18 years of age at the time of the offence. Sentenced in 2019 with respect to an offence which had occurred in 2008, the offender was released without conviction and a Conditional Release Order imposed.
An examination of cases prosecuted in the District Court for offences contrary to s 61M(2) indicates that out of 86 cases in total, only two related to offenders who were less than 18 years of age at the time of the offence. One offence related to the period before the imposition of the standard non-parole period. In 2009 his Honour Judge Walmsley of this Court imposed a s 12 bond with respect to an offence which had occurred some 17 years earlier. The second offender (pre-Muldrock but after the imposition of standard non-parole periods) was similarly given a s 12 bond by Judge Quirk in 2011.
Local Court statistics for the offences prosecuted under the same section reveal a total of 20 cases dealt with summarily. Of those only one related to an offender who was less than 18 years of age at the time of the offence. Notwithstanding that he had prior convictions, including a suspended sentence, in 2019 he received a Community Corrections Order with respect to an offence which had occurred 22 years earlier.
The substantive offence charged under s 66D, namely assault with intent to have sexual intercourse with a child between ten and 16 years, in 1991 carried a maximum penalty of eight years imprisonment.
The JIRS statistics from the District Court with respect to the original section reveal only one case. It involved an offender who was less than 18 years of age at the time of the offence. He was sentenced in 2015, with respect to an offence which had occurred 21 years earlier, to a s 9 bond.
Statistics with respect to the same offence after it was separated into two age groups of victims, namely between 10 and 14 and between 14 and 16, and with a further distinction introducing circumstances of aggravation, yield only a small number of cases, none of which related to an offender under 18 years.
However, one of the cases included in the statistics, Regina v RP [2018] NSWDC 125, a decision of his Honour Judge Lerve, dealt with an offender who was 19 years of age when he committed an offence under s 66D of the Crimes Act, for which he received a term of imprisonment. I should note in passing this is the same RP, the subject of an appeal that went to the High Court before it came back before Judge Lerve. He was sentenced on the same occasion with respect to two earlier offences, namely sexual intercourse with his half-brother without his consent, knowing that he was not consenting, when the victim was under the age of 16, contrary to s 61J(1) of the Crimes Act 1900, and a further offence of assault with an act of indecency on the same person, contrary to s 61M(1) of the Crimes Act. Whilst he was imprisoned for the offence that occurred when he was 19 years of age, these earlier offences had occurred when he was 14 years of age. When he was sentenced in 2018, the offences had taken place 11 years earlier. For each of those two particular offences he received s 9 bonds.
An examination of the JIRS statistics with respect to offences under s 66C(1) reveals that in all there were 13 sentences passed on persons who were under 18 at the time they committed the offence. Three offenders were dealt with under s 10(1)(b) with respect to offences which had respectively occurred 6, 7 and 11 years earlier. Three offenders received bonds under s 9. The offending in each of those three cases had occurred 18, 20 and 22 years earlier.
Five offenders received suspended sentences under s 12 and two only received terms of imprisonment to be served. A non-parole period of 12 months was imposed with respect to one offence that had occurred five years earlier and a non-parole period of eight months with respect to an offence which had occurred the year before were the outcomes in those two cases.
It is apparent from this summary that the substantial majority of persons who were less than 18 years of age at the time of the commission of the various relevant offences received sentences which did not require full-time custody. Only two out of 21 offenders were required to serve terms of imprisonment. A further seven, notwithstanding that the s 5 threshold had been determined to have been crossed, had their sentences suspended: an option which, of course, no longer exists. In the course of making reference to the recorded statistics, I have endeavoured to make some reference to particular cases where the historical nature of the offending appeared relevant.

Delay

There is no doubt that sentencing, both in terms of principle and technicality, is much more difficult in circumstances where an offender appears before a court years after the commission of offences. Such difficulties inevitably occur in cases of historical sexual abuse of children where, in many cases, complaint is not made about the offending until many years later.
Despite the fact that there are many reasons why a child victim may not complain either immediately or even soon after such abuse, the common law position had a primary focus on justice to an offender and, accordingly, sentencing practices at the time of the commission of an offence were required to be taken into account. Similarly, the maximum penalty for an offence at the time of its commission was the relevant guide or yardstick. Subsequently-increased maximum penalties did not operate retrospectively: see s 19 of the Crimes (Sentencing Procedure) Act.
In New South Wales, conflicting authority with respect to the principle of sentencing either at the time of the commission of the offence or at the time of the sentencing was resolved by a specially-constituted five-judge bench of the Court of Criminal Appeal. Mason P, dissented in R v MJR (2002) 54 NSWLR 368. The Court, however, held at [31] that a sentencing judge is:

…to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender.

In January 2013, the Governor-General, on the advice of the then Prime Minister, appointed six Commissioners to sit on the Royal Commission into Institutional Responses to Child Sexual Abuse. The final report was presented in December 2017 after an extensive inquiry lasting nearly five years.
Amongst a large number of recommendations by that Royal Commission was a specific recommendation at [113] that:

State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.

Following that recommendation, in 2018 the New South Wales Attorney-General, Mr Speakman of Senior Counsel, introduced the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018. Amongst other amendments introduced as a consequence, s 25AA(1) was as follows:

A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

The distinction in principle and also in application of this amendment, especially with an offender who was a child at the time of the commission of the offence, between the consideration of the sentencing pattern and practice at the time of the offence when they were in fact a child and the consequences of delay in prosecution, is one in which I have had some difficulty in resolving.
I am not of the opinion that s 25AA was intended to displace rules that apply to the principle of delay.
In its written submissions, the Crown submitted that the decision of R v Cattell [2019] NSWCCA 297 “must be followed”. I am, of course, bound to follow the application of principles by the Court of Criminal Appeal. In light of the Crown’s exhortation, I propose to examine Cattell in some detail.
The leading judgment of Price J, who is also the Chief Judge of this jurisdiction, gives extensive and appropriate guidance with respect to the significance of delay in an historical child sexual abuse case. Cattell was an appeal by the Crown against the inadequacy of an aggregate sentence which had been imposed in 2019 in the District Court on a former priest. Cattell, by the time of his sentencing in 2019, had on three prior occasions been sentenced by different judges of the District Court for offences which he had committed against children whilst he was an ordained priest.
I will endeavour, in the course of summarising a chronological narrative of the offender’s sexual misconduct, to deal with the sequence of the acts committed by him rather than the order in which the offences came to light and were dealt with by the courts.
The offending conduct had commenced in 1968, when the offender was an assistant priest at St Therese Church in Lakemba. He was approximately 28 years of age at the time. He sexually assaulted a 12-year-old altar boy, who complained to his mother immediately. The family ceased attending the church but, other than the child’s mother confronting the offender, it would appear that no complaint was made to police at that time.
Notwithstanding having been confronted by the mother of what would appear to have been his first victim, the offender continued with a course of sexual misconduct towards children. He subsequently was charged with five counts of indecent assault against a young boy involved with the church in the period between 1973 and 1975. The offender at that time was a Catholic priest at Liverpool. The victim was aged between 14 and 17 years of age at the time. The offences involved mutual masturbation to ejaculation.
That matter was the first prosecuted and in 1994 the offender was charged and sentenced for these later offences, that is the second set of offences that we now know he had committed. His Honour Judge Saunders QC at Penrith District Court in December 1994 sentenced Cattell to an overall term of 3 years 6 months imprisonment, with a minimum term to be served of 2 years.
In addition to the matters which became the subject of the sentence by Judge Saunders in 1994, and returning to the chronological sequence, the offender was also committing indecent assaults on another young boy at the school connected with the parish in that period 1973 to 1974. This offending, of course, was not known to Judge Saunders at the time of the sentence in 1994. This particular offending came to light during the Royal Commission into Child Sexual Abuse and the offender was subsequently arrested and charged in April 2016. At that time he was serving sentences of imprisonment, which I will come to shortly, which had been imposed by Judge English in the District Court in February 2015 with regard to sexual misconduct which occurred some years later, between 1984 and 1987.
The offending with respect to this second victim during the period 1973 to 1975, that is the third victim in total but the second in that period, came before the District Court on 9 December 2016. At that time the non-parole period imposed by Judge English, the details of which I will come to shortly, had expired in August 2016. The offender had not been granted parole, no doubt because of the fresh charges. In passing sentence on 9 December 2016 his Honour Judge Haesler SC referred to the need to show considerable flexibility when dealing with old offences. His Honour cited Magnuson v R [2013] NSWCCA 50 and Moon v R [2000] NSWCCA 534; 117 A Crim R 497, and imposed an aggregate term of imprisonment of one year six months, which he backdated to 10 April 2016, with a non-parole period of eight months.
As a consequence, given that the earlier non-parole period fixed by Judge English for a later offending, the sentence imposed by Judge Haesler was partially concurrent on the sentence then being served. As a consequence, the offender served less than four months imprisonment solely referable to the additional charges. He was eligible for release to parole immediately on the day that Judge Haesler passed the sentence.
Of course, undisclosed at the time of the sentence passed by Judge Saunders in 1994, as I have already indicated, the former priest had in fact continued his sexual abuse of children after the incidents when he was a resident priest at Liverpool in the period 1973 to 1975.
In approximately 1977 he had become the parish priest at St Bernadette’s Church at Castle Hill. He became friendly with and was asked to be the “Godparent” to an 8 or 9-year-old boy, whose family attended the church. The boy and the priest became quite close.
In 1979 the offender had moved to St Matthew’s Catholic parish in Windsor. The young boy from the Castle Hill parish, by now ten years of age, was permitted by his parents to visit and stay overnight at the Presbytery with the offender during school holidays. He was indecently assaulted by the offender while they slept together naked. This conduct occurred during school holidays at least twice per year over the next five years.
During the period of this close friendship the offender indecently assaulted the victim on a number of occasions, including on a camping trip, on another specific occasion at his holiday house down the New South Wales South Coast, and on three occasions during trips to the Western Plains Zoo in Dubbo, where they had slept naked in a hotel or motel on the three trips and indecent assaults had taken place. The sexual abuse of this child stopped in about 1984.
Other than the sexual abuse matters which had occurred between 1973 and 1975 at Liverpool, which became the subject of the terms of imprisonment by Judge Saunders in 1994, none of the paedophilic activity of Cattell would appear to have been complained about to a prosecuting authority. I am unaware as to whether any complaint had been made to the Catholic Church.
However, between May 1984 and December 1984 there was very similar sexual conduct by the offender with another child to that which had been occurring with the young boy to whom he became a “Godparent”. By that time, that is between May 1984 and December 1984, the offender had become the parish priest at Our Lady of the Rosary Church at St Marys. During the time that he was the priest at St Marys he indecently assaulted a 12-year-old altar boy, who he had similarly invited to stay at his holiday house at Mollymook on the South Coast. Some two years later, in 1987, he similarly took this victim, who was then 14 years old, on a holiday to Dubbo. He again sexually assaulted that victim.
The indecent assaults committed on this particular victim became the subject of criminal charges in approximately 2014. In February 2015 her Honour Judge English sentenced Cattell to a term of imprisonment of 2 years 6 months, with a non-parole period of 1 year 6 months. It should be observed that at that time he was 73 years of age and that in addition to considerations of totality and accumulation her Honour was required to sentence in accordance with sentencing practices which had existed at the time of the offending.
During the time that the offender was the parish priest at St Marys, on some occasions two young boys aged about 8 and about 6 or 7 years of age would be permitted to stay at the church parish house because their mother would be frequently physically violent towards them. Following a number of indecent assaults on the younger boy in about 1987 or 1988, Cattell sexually assaulted the younger boy again in June 1990, when the victim by that time was 9 years of age.
During Cattell’s time as the parish priest at St Marys, the offender also became acquainted with numerous children from the associated Catholic Primary School. In 1990 a number of children from the primary school had been organised to sing in a choir for a 25th Jubilee anniversary celebration related to the offender. At this time he was 50 years of age and the 25th anniversary was likely to have been 25 years since his ordination. During one of the rehearsals the offender came into contact with an 11-year-old girl, who he had previously had dealings with in the course of her attending confession. He hugged the child and, after telling her that he had missed her, he told her that she was special and that God would do great things with her. As he told her these things, he lifted her dress and penetrated her digitally.

The following year, 1991, the then priest offered counselling to a number of students whose school friend had died. After conducting the funeral service, the offender approached one of the 16 year old boys who he had counselled and offered to take him to a church house down the South Coast to allow him to deal with his grief.
In due course the offender took the 16-year-old boy to a motel in the Ulladulla area, where they drank what would appear to have been a substantial quantity of bourbon. The 16-year-old became intoxicated and fell asleep. He woke up to find himself being sexually assaulted.
As I have indicated in the course of this historical chronology, the offender’s disclosed sexual misconduct towards children had commenced in 1968 and thereafter continued over a period of some 23 years until about 1991.
He was first imprisoned, as I have described, to a minimum term in 1994 of 2 years. His prior sexual abuse of children, almost all under his care and authority, thereafter would appear to have come to light following numerous incidents of delayed complaint. As I have indicated above, he was again sentenced to a term of imprisonment in early 2015 and then again to a backdated term in late-2016.
Following his immediate release from prison following the sentence of Judge Haesler in December 2016, the former priest was again interviewed and charged with some of the additional offences which had come to light during the Royal Commission. He was arrested in May 2017 at his then home in Queensland and extradited back to New South Wales. I am unaware of the date of his extradition and I can only presume that he was granted bail on his return to New South Wales. I note that various of the additional charges were in due course preferred in New South Wales by way of court attendance notices.
After pleading guilty to the matters, Cattell was yet again sentenced in the District Court in New South Wales in December 2019: see R v Cattell [2019] NSWDC 504. His Honour Judge Grant imposed an aggregate sentence with respect to the seven charges before him, which were predominantly indecent or aggravated indecent assaults of the young males and one count of sexual intercourse by virtue of the digital penetration of the 11-year-old girl. A further three charges had been placed on Form 1 documents. In total, there were ten offences charged involving five separate victims.
Of course, by the time of his Honour Judge Grant passing sentence in 2019, the sentencing reforms, including the introduction of s 25AA(1) in the Crimes (Sentencing Procedure) Act, had been enacted. His Honour, the learned sentencing judge, notwithstanding having discussed s 25AA(1) in the course of discussion with counsel during submissions, made no mention of the subsection in the course of his reserved judgment delivered the next day. Judge Grant imposed an aggregate sentence of 30 months, with a non-parole period of 9 months. It was this sentence, against this particular offender’s history, which was the subject of the Crown appeal in Cattell.
In upholding the Crown’s challenge to the inadequacy of sentence, his Honour Price J, with whom Hoeben CJ at CL and Campbell J both agreed, set out the background to the introduction of s 25AA(1). Price J concluded that the absence of any reference to s 25AA(1), especially given that Judge Grant’s remarks had been reserved, led to an inference that the sentencing judge may have overlooked the requirement that he was obliged to pass sentence in accordance with current sentencing practices and patterns. His Honour Justice Price further was of the view that, having paid close attention to the earlier sentences imposed on the offender in 1994, 2015 and 2016, at no stage did the sentencing judge expressly recognise that those sentences had been imposed before s 25AA(1) was enacted.
Price J proceeded to give guidance for first instance sentencing judges with respect to the fixing of a sentence for “an old child sexual offence”, as described, that falls within s 25AA. His Honour said at [123] to [126]:

When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing judge should:

(a) Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned;
(b) Determine the facts as now available to the court;
(c) Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence;
(d) Identify where the offence falls in the range of objective gravity of that offence;
(e) Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act;
(f) Set a non-parole period in accordance with s 44 of the Crimes (Sentencing Procedure) Act as it operates at the time of sentence, and
(g) Fix the balance of the term of the sentence.

When an aggregate sentence is to be imposed s 53A of the CSP Act is to be followed.

The sentencing judge should expressly state that the offender has been sentenced in accordance with s 25AA(1) and that the court has had regard to the trauma of sexual abuse on the child in accordance with s 25AA(3).

The sentencing judge must have no regard to patterns or practices of sentencing which may have operated at the time of the offending.”

The Crown in Cattell also challenged the manner in which the judge at first instance had dealt with the delay between the offending and the time that the offender came to be charged. Price J considered that his Honour’s approach to delay was founded upon the statements of principle by Street CJ in R v Todd [1982] 2 NSWLR 517 and also the High Court in Mill v R (1988) 166 CLR 59. Both of those cases concerned the situation where an offender came to be sentenced in one State some years after the commission of an offence because during the intervening period he had been serving a sentence imposed in another State in respect of a similar offence committed at about the same time.
Price J noted that in historical sexual assault cases, a child sexual offender does not necessarily benefit from an extensive delay in the revelation of his offences. His Honour referred to a number of the authorities where substantial delay had occurred in child sexual assault matters, including specifically the observations of Hoeben CJ at CL in Hornhardt [2017] NSWCCA 186, in the course of which observations Justice Hoeben made specific reference to a number of other expressions of principle by other judges in the Court of Criminal Appeal.
In the matter then before him of Cattell, Price J said at [136] to [137], referring to the judge at first instance, Judge Grant:

The judge appears to have overlooked the reasons for the delay in the complaints and the benefits the respondent enjoyed in escaping punishment for the serious crimes that he committed many years before.

The respondent used his position of trust and influence as a Catholic priest to sexually abuse vulnerable children and to avoid his offending being reported.

Price J further noted the observations of Whealy J in R v Moon [2000] NSWCCA 534 and found that those observations were particularly apt. His Honour Price J considered that the sentencing judge in Cattell had elevated considerations of fairness because of delay and apparent rehabilitation to a “dominant role” and that, accordingly, there was an error of principle in this respect.
In the ultimate outcome, after allowing the appeal, the Court of Criminal Appeal increased the head sentence from 30 months to 36 months and, after adopting a ratio of 50% for special circumstances, imposed a non-parole period of 18 months (increased from 9 months at first instance).
The question of delay between the time of the commission of an historical child sexual assault and the time of sentencing has frequently been the subject of expressions of principle in the Court of Criminal Appeal. I have had careful regard to the cases referred to in Cattell by Price J in this respect in this respect. A number of cases have specifically had to deal with delay in sentencing offenders who were children at the time of the offences. I propose to make reference to some of them.
In RL v R [2015] NSWCCA 106 the offender had been aged between 14 and about 20 or 21 years when he committed a series of sexual offences against younger relatives. The offences had occurred between 1981 and 1987. No complaint was made about any of the offending until 2013.
I should note in passing that the judgment of the Court of Criminal Appeal in the introductory narrative at [3] – [5] erroneously states that the offending behaving ceased in 1986 when the offender was 19 years of age. The summary of the facts later in the judgment, however, detail at [24] that a further act of intercourse had occurred in 1987 when the offender was, by then, as described in the judgment, 20 or 21 years of age.
The offender had appeared for sentence in February 2014. Between the last offending in 1987 and the time that he appeared for sentence in 2014 the offender had led an exemplary life. The Court, comprising Basten JA and their Honours Simpson J and Adamson J, said at [6]:

Sentencing in a case of this kind is fraught with difficulties, both in terms of principle and technicality. So far as principle is concerned, there is an anxious tension between the need for public condemnation of the conduct involved and the vindication of the dignity of the victims, on the one hand, and on the other, the imposition some 30 years after the events, of penal consequences on an offender who has led a subsequently blameless life and has readily acknowledged his own wrongdoing, when confronted with the complaints.

One of the difficulties confronting the sentencing judge in RL had been that a number of the offences had been committed when the offender was under 16 years of age, some others between that age and 18 years, and yet other offences after he had become an adult.
The fact that the offences committed when the offender was a child were not “serious children’s indictable offences” and recognition of the probability that they would have been dealt with by a Children’s Court, even if there had been a delay of some years in charging him, gave rise to a consideration of what would have happened to him had he been charged at the earlier point in time. Of course, I note in 2015 a sentencing court was obliged to give consideration to sentencing patterns and practices at the time of the offence.
However, a possible or likely outcome on sentence as a result of the special statutory provisions applying to children, in the event that the matter had been prosecuted earlier, also gave rise to a separate consideration of the effect of delay. The Court in RL noted at [46]:

…there is a high level of tension in relation to sentencing offenders years after the events which constitute the criminal conduct, in providing adequate punishment, giving some effect to general deterrence, denouncing the conduct of the offender and recognising the harm done to the victim, in circumstances where there is no palpable risk of reoffending, no need to deter the offender, no need to protect the community from the offender nor to promote the rehabilitation of the offender. The somewhat unusual circumstances, where the offending was undertaken during adolescence and very early adulthood, rather than the more common examples of an adult preying on young children, give confidence to a finding that the applicant is most unlikely to reoffend.

In the event, in RL the Court of Criminal Appeal upheld the challenge to the severity of the aggregate sentence which had been imposed at first instance notwithstanding that a number of the offences involved forced sexual intercourse without consent and that some offences had occurred when the appellant was an adult. However, a non‑custodial sentence was not a realistic option. Whilst there was, of course, no appeal lying directly with respect to the indicative sentences underlying the aggregate sentence imposed, the Court of Criminal Appeal, amongst other errors they found having been made by the sentencing judge, held that the indication in the indicative sentences of not insubstantial terms of imprisonment with respect to some of the offences by the judge at first instance were themselves reflective of error.
In place of the indicative terms of imprisonment for the three offences, counts 1, 2 and 7, which had occurred when the offender was 14 and 15 years of age, the Court concluded that an indicative sentence which did not involve a full‑time custodial penalty should be adopted. Those offences included two indecent assaults, including five additional matters on a Form 1, and an offence of sexual intercourse without consent.
More recently, in September 2018 and shortly after the introduction of s 25AA, the District Court in Wollongong dealt with an offender who had sexually assaulted his stepbrother over a period of about four or five years: R v SW NSWDC (unreported) 10 September 2018 per Haesler SC DCJ. The sexual assaults had commenced in 1998, at which time the offender was 11 years of age and the victim was six. The offending conduct continued until 2002, by which time the offender was 16 years of age and his victim had turned 11. The offender was originally charged with approximately 30 offences and the matter proceeded by what the first instance judge described as “representative charges”.
The matter came before the District Court when the offender was 32 years of age. The substantive offences for sentence were three counts of aggravated sexual intercourse without consent with a person under the age of 16, for which the maximum penalty was 20 years imprisonment. A further three offences of aggravated indecent assault, together with a count of assault with an act of indecency, were also before the Court as substantive counts. An additional three counts of aggravated indecent assault had been placed on Form 1 documents.
Haesler SC DCJ considered s 25AA and said:

I do not read into s 25AA any intent to displace the rules that apply to the principle of delay because that practice of taking into account long delay applies now, as it did back then. It remains a relevant sentencing consideration. Similarly, I am sentencing this offender as an adult for offences he committed as a child. I do not read, and I do…

I think the word “not” has been omitted from the draft judgment which I have had access to -

… I do [not] believe that I am obliged to read into s 25AA that sentencing patterns and practices at the time of sentencing prohibit my taking into account, as general principle requires, that these offences were committed by a child on another child. Those principles still apply to these proceedings.

Notwithstanding the fact that there had been a delay of some 16 years with respect to offences committed by a child upon a younger child, taking into account all relevant matters the learned and experienced sentencing judge found that there was no alternative to a period of full-time imprisonment. A total of 3 years imprisonment with a non-parole period of 18 months was imposed.
The offender appealed against the severity of that sentence. The Court of Criminal Appeal granted leave to appeal because it concluded that the issue concerning delay and offending as a child was significant enough to warrant the grant of leave.
The Court, per Davies J with whom Bathurst CJ specifically agreed with his reasoning, and also Bell P, made no criticism of the analysis of s 25AA by his Honour Judge Haesler. The Court specifically noted Judge Haesler’s references to the section and said at [34]:

His Honour rejected any suggestion that s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) was intended to displace rules that apply to the principle of delay. Nor, his Honour said, did s 25AA prohibit him from taking into account that the offences were committed by a child on another child. His Honour noted further that had the applicant been dealt with as a child, a different sentencing regime would have applied to him, a regime with greater focus on rehabilitation than the retributive regime that applies to an adult.

The Court of Criminal Appeal also noted the remarks of the sentencing judge with respect to the application of principles relating to the sentencing of young offenders. Davies J made reference to those remarks and said, in respect of Judge Haesler’s remarks on sentence, at [36]:

His Honour said (at ROS 8):

I also have to, so far as I am able, apply principles that relate to the sentencing of young and immature offenders. …The fact that the offences occurred as a child does not minimise their objective seriousness, but I recognise that there is a vast difference between a young immature offender committing offences when they are not neurologically able to think as an adult and when one comes to sentence a mature adult who offends against a child.
The child’s criminal actions, even sexual actions, are generally not regarded as being as morally reprehensible as if the offences had been committed by an adult.

Davies J further went on, referring to Judge Haesler, and said:

His Honour said (at ROS 13):

There are a number of important factors in this case. The delay, the fact that the offender was himself a child at the time, requires a sentence which by comparison with that which would have been imposed on an adult, might be considered lenient.

The Court of Criminal Appeal noted what was described as a number of significant matters which warranted the view that indeed there had to be a period of full-time imprisonment. These included the fact that there were three counts of aggravated sexual intercourse without consent committed on a 10 or 11 year old victim, for which the maximum penalty for each offence was 20 years imprisonment. The second significant matter was that the charges were representative offences, in circumstances where the offending had commenced when the complainant was only six years of age. The third significant factor was that the offending had involved a degree of coercion. A fourth significant factor was that the offender had not led a blameless life since the index offences.
Davies J pointed out at [42] to [44]:

Between 2004 and 2013 he has been convicted of a number of offences, including offences of violence (assault occasioning actual bodily harm being the worst) drug offences, two offences of driving whilst disqualified and two offences of contravening an apprehended violence order. Those last two offences demonstrate contempt for the orders of the courts, quite apart from disobedience of the law.

The applicant has been placed on conditional liberty on a number of occasions. He has been called up more than once for breaching that conditional liberty and in 2006 was sentenced to three months imprisonment for breaching conditional liberty in respect of three offences, as well as for his second offence of drive whilst disqualified. It may be accepted that there has been no subsequent sexual offending, but his criminal record shows that his disregard for the law was not the product of mere immature offending.

One of the principal reasons for mitigating a sentence in the case of extended delay is because of the weight that has to be given to the applicant’s rehabilitation in the meantime: R v Todd (1982) 2 NSWLR 517 at 519. That basis is largely absent here, at least until 2013.

Accordingly, understanding the issues of delay and offending as a child having warranted a grant of leave, the appeal, however, was itself dismissed.
It is important to bear in mind an appropriate distinction with respect to consideration of matters of delay and the question of an offender’s youth at the time of offending.

Current sentencing practices

The number of cases with respect to offenders who were children at the time of the commission of the offence for which they are being sentenced since the relevant amendments to sentencing practice with regard to child sexual offences in 2018 is limited.

Whilst clearly being required to bear in mind the variable and varying factual circumstances of individual cases, I have looked at a number of other cases which have some features of particular relevant comparison.
The matter of Paul Campbell (a pseudonym), though initially dealt with in the District Court prior to the introduction of the sentencing reforms, ultimately came back to the District Court for resentencing after the reforms of 2018.
Campbell was a boy of 13 years of age in October 2016 when he committed a series of serious sexual assaults on his female cousins, who were 6 and seven years of age respectively. He committed three acts of sexual intercourse on the 6 year old, including digital penetration, cunnilingus and fellatio. Each of those offences carried a maximum penalty of life imprisonment. Two additional offences of aggravated indecent assault with respect to the same girl were also originally charged. With respect to the second victim, who was 7 years old, an additional charge of indecent assault was preferred.
The matter was first dealt with in the District Court before his Honour Judge Berman SC: see R v Campbell (a pseudonym) [2017] NSWDC 359. Two of the offences of actual intercourse with a child under ten, carrying a maximum penalty of life imprisonment, were on the indictment which was presented, whilst a third charge relating to such conduct and also carrying a maximum penalty of life imprisonment, had erroneously been placed on a Form 1. Such a course was prohibited by s 33(4)(b) of the Crimes (Sentencing Procedure) Act. This problem was not identified at the time by the legal representatives nor by the sentencing judge. The other charges of aggravated indecent assault against the six year old victim were also on the Form 1. The indecent assault on the second victim was charged substantively.
The sentencing judge gave indicative sentences of 12 months and ten months for each of the acts of sexual intercourse and four months for the indecent assault. Judge Berman proceeded to impose an aggregate sentence of 16 months, with a non-parole period of eight months. He directed that the sentence be served as a juvenile offender in a juvenile detention centre. His Honour directed that a conviction was not to be recorded.
The child offender appealed to the Court of Criminal Appeal: Paul Campbellv R [2018] NSWCCA 87. The defect in the proceedings below with respect to the inclusion of a matter carrying a maximum penalty of life imprisonment on a Form 1 was identified by the Crown and conceded. Leave was given to include this as an additional ground of appeal.
Notwithstanding the Crown’s submission that the original grounds of appeal should be rejected, the Court proceeded to hear argument with respect to them in order to determine whether to proceed to resentencing or whether to remit the matter to the District Court.
Before turning to the grounds of appeal, Hamill J, with whom Bathurst CJ and Schmidt J agreed, said at [20]:

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

Hamill J then set out various of the principles and presumptions of law applicable to sentencing a child offender. His Honour noted that two of the offences for which the appellant had been sentenced fell within the definition of a “serious children’s indictable offence” and that, accordingly, they were required to be dealt with according to law.
His Honour further noted that the fact that the child was to be dealt with according to law did not displace the general provisions of the Children (Criminal Proceedings) Act concerning the treatment of children under the criminal law. The central provision in that legislation was, and is, s 6:

6 Principles relating to exercise of functions under Act

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

(a)  that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b)  that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c)  that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d)  that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e)  that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f)  that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g)  that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h)  that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

His Honour noted at [30] the judgment of Kirby J, who had dissented in the outcome in R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1, and then said this:

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

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

Hamill J also made reference to MS2 &Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, a decision of Adams J, which had identified two of the reasons that the youthfulness of an offender was considered to be a significant factor in sentencing. Adams J had identified the first significant point as substantial public interest in the rehabilitation of young offenders and the second being that immaturity is relevant to culpability or criminality because “children do not have adult value judgments, adult experience or adult appreciation of consequences”.
Hamill J then proceeded to deal with the first ground of appeal, which was that the sentencing judge, Judge Berman, had erred in ruling that the Crown’s concession in the sentence proceedings that a sentence other than full-time custody was “within range”, was “wrong in sentencing principle”.
Reference had been made at first instance to RP v R [2015] NSWCCA 215, in which a careful analysis of the comparable cases referred to in the judgment demonstrated that serious sexual offending committed by children as young as the applicant did not necessarily result in full-time incarceration.
Hamill J said at [38]:

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

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

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

Ground 1 was, accordingly, upheld.
The second ground of appeal, namely that the sentencing judge erred in failing to consider an alternative to full-time custody, was also upheld. Additional grounds relating to the sentencing judge having erred in assessing the seriousness of the offence and in finding that the applicant had used his position as a trusted family member to commit the offences were, on the specific facts of that case, also upheld.
In addition to these various grounds being upheld, the appeal was also upheld on the basis of the added ground in relation to the inclusion on the Form 1 of the offence which carried a maximum penalty of life imprisonment.
In determining an appropriate disposition of the appeal, Hamill J dealt with complications that had arisen in part as a consequence of a decision by the New South Wales Director of Public Prosecutions that it was likely that the digital penetration sexual intercourse charge, which had originally been included on the Form 1, might proceed separately. His Honour was of the view that it was undesirable that the applicant be subject to re-sentencing in the Court of Criminal Appeal and then later be brought before the District Court on that additional and closely-related charge. However, before remitting the matter to the District Court, Hamill J indicated that he was satisfied that a less severe sentence was warranted and ought to have been imposed.
On the material before the Court of Criminal Appeal, his Honour expressed the opinion that he was satisfied, having considered all possible alternatives, that a sentence of imprisonment was the only sentencing option. However, his Honour said that if he were inclined to re-sentence, the sentence imposed would be substantially less than 2 years and his Honour would order that any such sentence be suspended under s 12 of the Crimes (Sentencing Procedure) Act.
As I indicated earlier, both the Bathurst CJ and Schmidt J agreed with Hamill J’s reasons. The order for removal to the District Court was made on 4 May 2018.
The matter of resentencing having been remitted to the District Court, the Director of Public Prosecutions added the additional charge of sexual intercourse with a child under ten to the original substantive charges. The original offences, together with the additional charge, then proceeded to sentence in the District Court before her Honour Judge Huggett on 13 December 2018.
As well as the additional charge carrying a maximum of life imprisonment, her Honour was required to proceed in light of the amendments to the Crimes (Sentencing Procedure) Act which had taken effect earlier that year. Of particular significance was, by the time her Honour came to pass sentence, that suspended sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act were no longer an available sentencing option.
Her Honour Judge Huggett made reference to the considerable focus which needed to be given to any rehabilitation to date and the capacity of a child to reform and the desirability of reform. Her Honour noted that the weight to be afforded to youth does not alter simply because the young person has been convicted of the serious offence. Her Honour said that where immaturity was a significant factor in the commission of an offence or offences, the criminality involved will be less than if the same offence was committed by an adult.
After referring to a number of matters specific to the offender, her Honour concluded that she was satisfied that his prospects of continued rehabilitation were very good and that his risk of reoffending was low. Her Honour noted that the fact that two years had passed since the commission of the offences was a relevant factor and that the delay in the matter coming back for sentence had ultimately created some very significant adverse effects. One of those was that, as a result of the legislative changes, the options available to the Court were less favourable to the offender than they were at the time he was originally sentenced. In particular, the fact that suspended sentences were no longer available and that he had made further progress towards rehabilitation were seen to be important factors.
Her Honour Judge Huggett concluded that although the type of sentence, that is substantially less than two years and suspended, which had been postulated by Hamill J, may well have been appropriate as at December 2017, things had changed since that time in significant ways, particularly with respect to further steps taken towards rehabilitation and the sentence warranted by the Court of Criminal Appeal, Judge Huggett found, at the time the matter came before her, was no longer warranted.
Her Honour concluded that as a custodial sentence was no longer the only appropriate sentence, she proceeded to impose, in lieu of sentences of imprisonment, Community Correction Orders with respect to each of the offences, including the additional offence which carried a maximum penalty of life imprisonment. Her Honour did not consider it necessary for any conviction to be recorded and, being satisfied that he did not pose an ongoing risk to the lives or sexual safety of one or more children in the community, she declined to make a registration order. I am informed that there has been no appeal against that judgment.
In giving consideration to the significance of delay, I also want to make reference to one case from interstate in which Chief Justice de Jersey of the Queensland Supreme Court articulated principles touching upon the offending of children against other children and the principle and consequences of delay. I, of course, note that the legislation under which these comments were made in Queensland operate differently to the situation in New South Wales and indeed that there is specific legislation in Queensland under their Juvenile Justice Act requiring a sentencing court statutorily to recognise circumstances of sentencing which would have been imposed if the person were still a child.
In R v PGW [2002] QCA 462;134 A Crim R 593, an appeal against severity where a sentencing judge had imposed a term of imprisonment which was wholly suspended and a conviction was recorded, de Jersey CJ said:

But it does seem to me that insufficient attention was given to what I regard as the unique aspect of the case, and that is that both actors - the offender and the victim - were, in law, children. It is a very unusual case in that it concerns the prosecution, after 20 years or so, of a person who was but an adolescent at the time of offending.

The case has no relation to the prosecution, even after many years, of adults who prey on children. This is a case where, had the applicant been sentenced as a child, he would not have been placed into custody.

His Honour the Chief Justice continued:

The question which the sentencing Judge should have addressed was why therefore should the applicant now be sentenced to a term of custody, albeit suspended. It was accepted that the applicant has not subsequently been convicted or subsequently misconducted himself and, as it was put, that he should be taken as fully rehabilitated.

While it is true that the sentencing Judge, from her perspective, knew a matter which would not have been known had the applicant been sentenced as a child, that is the serious effect on the victim, and that is not to be overlooked or understated, the fact is that it is highly unlikely that a 15 year old boy who, as put by the sentencing Judge, was sexually experimenting with the younger victim, would reasonably have foreseen such consequences for him.

Now, it is also true that society rightly and reasonably expects punitive and deterrent responses from the Court in cases of sexual misconduct, but this case is, as I have said, unique for the circumstance that both offender and victim were, at the time, in law, children and, in development, comparatively immature.”

Covid-19

Following submissions and evidence being received in this matter, I subsequently invited counsel to make any further submissions in light of the developing COVID-19 situation, which has, of course, affected the entire community. I received submissions from senior counsel for the offender, Ms Davenport, and also from the counsel who appears for the Director.
It is sufficient for present purposes to note that whilst in some situations the significance of the COVID-19 position may have a part to play in an appropriate case, I note the observations of Wilson J in RC v R; R v RC recently pronounced on 22 April in the Court of Criminal Appeal, [2020] NSWCCA 76. In that case an older offender with respiratory problems was not resentenced by the Court of Criminal Appeal and sentenced to a term of imprisonment, notwithstanding what the Court found in relation to the inadequacy of the sentence which had been imposed in the District Court, which were sentences involving Community Correction Orders. The particular circumstances of the offender RC led to the Court exercising its residual discretion and declining to intervene and resentence.
The significance of the matter in these proceedings is not one which attracts particular need for expressions of principle by me. There is nothing in the present matter, in my view, which would of itself, relating to COVID-19, alter what ought to be the appropriate outcome in disposition of the matter.
I have given careful consideration to the competing factors in the present matter. The inherent seriousness of sexual offences committed against children is reflected in the maximum penalties imposed by Parliament. Increased community concern about the commission of such offences has been reflected in very substantially-increased maximum penalties since the time of the commission of the present offences in 1991.
Notwithstanding the fact that the maximum penalty applicable to a number of the offences before me has in fact been doubled by Parliament in the intervening time, the guidepost by which I must proceed to exercise the sentencing discretion is the maximum penalty applicable at the time of the offences.

Consideration

I have already made specific reference to the consideration which is required of the impact of these offences upon the victims. I have taken into account s 25AA(3) of the Crimes (Sentencing Procedure) Act. I note the potential for some perceived tension between that section and s 6 in the Children (Criminal Proceedings) Act and I indicate clearly that I have had regard to the trauma of sexual abuse on the victims as it is understood at the present time.
The significance of very substantial delay with respect to this matter coming before the Court and the situation that the offender was a child himself at the time of the offences has required very careful consideration. The observations with respect to delay in complaint in historical child sexual assault cases, to which I have earlier made reference, and the circumstances of the delay in cases such as Cattell, are to be distinguished, to some degree, from the facts of the present case.

The need for specific deterrence has been obviated by the demonstrated good character of the offender for now almost three decades. The present offender does not pose an ongoing risk to the lives or sexual safety of children in the community.
The need for general deterrence, although an important consideration with respect to a prescribed sexual offence, needs to be weighed with the importance of rehabilitation had the offender been prosecuted as a child in 1991 or, indeed, if he had been prosecuted as a child in 2020. I have taken into consideration the need for general deterrence in such cases in my determination of the present matter.
The delay which has occurred has had the effect that many sentencing options that would variously have been available at earlier points in time are no longer available. Because the offences are prescribed sexual offences, that is against a child under the age of 16 years, the offender is not entitled to be dealt with by way of an Intensive Correction Order, which is now an alternative to a custodial sentence and replaces the former s 12 suspended sentences which have been repealed. Whilst these types of offences will frequently result in a full‑time custodial sentence, and indeed generally will do so when committed by adults, the amendments to the Crimes (Sentencing Procedure) Act do not mandate that an offender with respect to such offending is ineligible to be sentenced to a sentence that is not a custodial term of imprisonment. Neither the legislation nor the observations of the Court of Criminal Appeal in Cattell with respect to delay are intended to result in mandatory sentencing and the abolition of judicial discretion. As observed by Judge Hanley SC of this Court in R v Tomlinson (NSWDC (unreported) 25 February 2019):

Such a result would fail to recognise there are always exceptions that need to be accommodated in the application of the broad spectrum of individual sentencing.

See also the observations of the Court of Criminal Appeal with respect to judicial discretion in the context of drug supply cases in Parente v R [2017] NSWCCA 284; 96 NSWLR 633.
In the matter of Tomlinson, on its particular facts his Honour Judge Hanley SC imposed Community Correction Orders with respect to homosexual intercourse offences which had occurred approximately 18 years earlier when the offender was about 21 and the victim was about 12.

Determination

In the ultimate, I am not of the opinion required by s 5 of the Crimes (Sentencing Procedure) Act that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. On the contrary, in the specific circumstances of this particular offending, I am satisfied that the appropriate sentence is the imposition of a Community Correction Order with respect to each of the offences. I have taken into account the age of the offender at the time of the offences, namely 15 years of age, and his likely immaturity at that time. These are, of course, relevant factors in a consideration of moral culpability. The recording of a conviction and the imposition of Community Correction Orders will, in my view, provide sufficient general deterrence in the particular circumstances of this case.
DW, would you please stand?
DW, you are convicted with respect to each of the three matters before me. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act1999, instead of imposing a sentence of imprisonment you are ordered to comply with a Community Correction Order for a period of 3 years. Those orders will commence on today’s date. The standard conditions of the order will apply: you must not commit any offence and you must appear before the Court if called on to do so at any time during the term of the order.
You can have a seat.

**********

Decision last updated: 11 November 2024

Medium Neutral Citation:	R v DW (No 1) [2020] NSWDC 461
Hearing dates:	20 March 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Convicted and ordered to comply with Community Correction Orders for a period of 3 years
Catchwords:	CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 – child offender – extensive delay – rehabilitation – sentencing children who commit child sex offences – non-custodial sentence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes(Sentencing Procedure) Act 1999 Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018
Cases Cited:	Knight v The Queen [2015] NSWCCA 222 MagnusonvR [2013] NSWCCA 50 Mill v R (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; 117 A Crim R 497 MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93 Parente v R [2017] NSWCCA 284; 96 NSWLR 633 PaulCampbell v R [2018] NSWCCA 87 R v BJW (2000) 112 A Crim R 1 R v Campbell (a pseudonym) [2017] NSWDC 359 RvCattell [2019] NSWCCA 297 R v Cattell [2019] NSWDC 504 R v DS (Paul Campbell) NSWDC (unreported) 13 December 2018 R v Elliott and Blessington [2006] NSWCCA 305 R v MJR (2002) 54 NSWLR 368 R v Moon [2000] NSWCCA 534 R v PGW [2002] QCA 462;134 A Crim R 593 R v SW NSWDC (unreported) 10 September 2018 R v Tepania [2018] NSWCCA 247 R v Todd [1982] 2 NSWLR 517 R v Tomlinson NSWDC (unreported) 25 February 2019 RC v R; R v RC [2020] NSWCCA 76 ReginavRP [2018] NSWDC 125 RL v R [2015] NSWCCA 106 RP v R [2015] NSWCCA 215 The Queen v Pham [2015] HCA 39
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (presented 15 December 2017)
Category:	Sentence
Parties:	Regina (Crown) DW (Offender)
Representation:	Counsel: Ms C Davenport SC with Ms M Humphreys for the offender Solicitors: Mr D Coulton for the Crown
File Number(s):	2019/00108682
Publication restriction:	Non-publication order in relation to names of offender and complainants or any features which may tend to identify them