R v Gray

[2019] NSWDC 550

District Court

New South Wales

Medium Neutral Citation:	R v Gray [2019] NSWDC 550
Hearing dates:	4 October 2019
Decision date:	09 October 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 6 months.
Catchwords:	SENTENCING - sentence after trial - sexual intercourse with child under 10 - maximum penalty life imprisonment - need to give content to maximum penalty - full benefit of acquittal on another count - child offender - brother of victim use of dildo - any penetration of a 5 year old objectively serious - victim impact statement - special circumstances adult gaol could harm prospects of rehabilitation - special circumstances found - sentence should be served in juvenile detention. SENTENCING – relevant factors on sentence - offender in family home - brother trusted to baby sit sister - child offender - immature offender - mental illness - autism spectrum disorder – impact on moral culpability – rehabilitation prospects - impact of denial of offending- rehabilitation programmes available - victim vindication – guidance offered by maximum penalty - retribution or rehabilitation - one factor can be determinative.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900
Cases Cited:	Blackman & Walters [2001] NSWCCA 121 BP v R [2010] NSWCCA 159 Campbell v R [2018] NSWCCA 87 Clarke-Jeffries v R [2019] NSWCCA 56 DM v R [2005] NSW CCA 181 DPP v De La Rosa [2010] NSWCCA 194. Engert v R (1995) 84 A Crim R 67 Hearne v R (2001) 124 A Crim R 451 Howard v R [2019] NSWCCA 109 JM v R [2012] NSWCCA 83 KT v R (2008) 182 A Crim R 571 Munda v Western Australia (2013) 249 CLR 600 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Ryan v The Queen (2001) 206 CLR 267 Veen v The Queen No 2 (1988) 64 CLR 465 Yardley v Betts (1979) 22 SASR 108
Texts Cited:	Juvenile sex offenders in the criminal justice system; D Kenny, Judicial Officers’ Bulletin, Vol 27 No 4, 2015 Sentencing for the offence of sexual intercourse with a child under 10; P. Poletti, P. Mizzi and H. Donnelly: Sentence Trends and Issues. no 44, 2015
Category:	Sentence
Parties:	John Gray - a pseudonym (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms K Stares (for the offender) Mr D Scully, Deputy Senior Crown Prosecutor (for the Director of Public Prosecutions)   Solicitors: Children’s Legal Service, Legal Aid NSW (for the offender)
File Number(s):	2017/00359952
Publication restriction:	Pseudonyms have been used for the names of the child offender and the child victim. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material, including names of witnesses or places that identifies or is likely to lead to the identification of any child. Identifying information has been removed from this version of the judgment to comply with the statute

Judgment

Introduction

1. On 23 July 2019, a jury was empanelled to hear allegations that in 2017, John Gray, a pseudonym, had sexual intercourse with child under the age of 10 years, Count 2 and commit an act of indecency with a child under 10 years, Count 4: sections 66A(1) and 61O(2) Crimes Act 1900, as it then was. The child was Gray’s sister, Jane, who was 5 years old at the relevant time. The Director of Public Prosecutions chose not to proceed with Counts 1 & 3.

2. On 26 July 2019 the jury returned a guilty verdict on the sexual intercourse - count 2. Gray was found not guilty of the act of indecency with a child under age of 10 years - count 4. Gray is to have the full benefit of that acquittal. Gray was convicted by me on count 2 and the matter was adjourned to 4 October 2019 for sentence. As Gray was himself a child when the offences occurred, a Juvenile Justice Report was requested. On 4 October 2019 I received that report and other documents. I also heard from Gray and Jane’s maternal grandmother and Ms Howell, psychologist, whose report is Exhibit 1-3. The primary focus of Ms Howell’s cross-examination was Gray’s potential risk of re-offending. The matter was adjourned until today, 9 October 2019, for my sentence judgment.

3. A s 66A Crimes Act offence carries a maximum penalty of life imprisonment. As this is a serious children’s indictable offence it must be dealt with at law: s 17 Children (Criminal Proceedings) Act 1987. The maximum penalty requires careful consideration. It is one guide to the exercise of my sentencing discretion.

Facts for sentence

4. In October and November 2017, Gray, Jane and their mother were living in the Illawarra area. Gray was then 16 years old; his half-sister Jane was 5 years old.  Towards the end of October 2017 their mother took on shift work. At times Gray would babysit his sister.

5. On 26 November 2017 Jane told her mother that she did not want her to go to work. She went on to say that Gray had put "a pink thing" in her “bum.”  When asked where the "pink thing" was Jane took her mother to a cupboard under the laundry sink. Jane emptied things out from it and said, "It's gone". The childrens’ mother told the jury that she had a box of sex toys in a cupboard in her bedroom but a pink vibrator was missing.

6. After this disclosure the police were informed. Soon after Jane was interviewed by specialist police. There were two interviews; the first on 27 November 2017 and the second on 19 July 2018.  In the first interview Jane refers to her brother by his nickname and said he put a put a pink thing in her “bottom.” She said it hurt.  She indicates where she's talking about when she says "bottom."  She described "the pink thing." variously saying that it's “big” and that it “turns on” and that it felt “bumpy.” She said that it happened in Gray's room and that she had her pants and her undies off. She also said that she could see Gray's bottom.

7. In the second interview she describes "the pink thing" in some more detail. She said it had a button. She said Gray put the pink thing in his bottom and then put it in her bottom.

8. In the first interview she also said that Gray squeezed his "long tail" in her presence.  The Crown case was that the reference to the "long tail" was a reference to Gray’s penis. The not guilty verdict indicates the jury may have accepted as a possibility Jane had seen her brother masturbating rather than that he deliberately exposed her to the act.

9. The jury had the benefit of seeing each interview and hearing from Jane. Her evidence was fully but carefully and sensitively tested by Ms Stares, who appeared for Gray. The jury by its verdict obviously accepted beyond reasonable doubt Jane’s version of the event concerning the “pink thing”, which has some support from the children’s mother.

Objective seriousness

10. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by maximum penalties makes that clear.

11. Every sentence must be appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. The objective seriousness of the offending must be determined in light of the entirety of those facts and circumstances.

12. There is no hierarchy of seriousness of the kinds of sexual intercourse. The degree and nature of the penetration of the child's genitalia must be considered; as must the time over which the acts occurred and whether any pain, physical hurt or harm was caused the child. Some degree of psychological harm is generally presumed. Other matters bearing upon the assessment of objective seriousness include; the age difference between the perpetrator and the child, the relationship of the perpetrator to the child and the age of the child relative to the range encompassed by the offence; generally, the younger the child the more serious the offence.

13. Here, for a 16 year old to penetrate a 5 year old child’s anus with a vibrator and cause her pain requires little further elaboration. That the crime was committed by an older brother, who has been given the responsibility of caring for his much younger sister, increases the seriousness of what was done. He was trusted to look after his sister. She was in their home where she was entitled to feel and be safe. The crime was opportunistic but Gray was trusted to care for and protect his sister - he did the exact opposite - he hurt her.

14. No injury was reported. Dr Brown, who examined Jane, suggested at trial that she would expect to find injury if the vibrator had been fully inserted into the child’s anus. If the penetration was into the anal verge only injury may not have resulted. She said small injuries will heal but it depends on the depth of an injury how quickly it heals: TT 118 - 119. On balance it seems more likely the penetration was not deep nor does it appear the incident went on very long. While, as his Counsel submits, there was no evidence of coercion, none was needed given the age disparity and relationship between a child innocent of sexual matters and her elder brother who she looked up to.

A Victim Impact Statement

15. On Jane’s behalf her mother set out the harm suffered by her daughter in a Victim Impact Statement: exhibit A. She said that before the events life was pretty good and Jane was enjoying attending day care 5 days per week. She had a close relationship with other children and her brother but that changed; Jane started showing signs of anxiety and acting out of character.

16. After the disclosure life for Jane and her mother changed dramatically. They moved away from the area. Jane had trouble adjusting to school and is now home schooled. She is very “clingy” and easily emotionally distressed. When she is overwhelmed she can become physically aggressive. She was distressed by counselling and alternative therapies are being trialled. She has lost the freedom that comes from being a child as she fears she will be hurt again. She has lost her friends, but more particularly her big brother. She wants to see him when she is older but does not want him to baby sit her. Jane’s mother fears the repercussions of what occurred will last a lifetime.

Sentencing a young offender

17. Generally lesser sentences are imposed on youthful offenders than those imposed on adults who commit similar crimes. Considerations of general deterrence and principles of retribution can be of less significance than they would be when sentencing a mature adult for the same offence. Allowance can be made for an offender’s youth; not just his or her biological age: KT v R (2008) 182 A Crim R 571 at [22]; DM v R [2005] NSW CCA 181: Hearne v R (2001) 124 A Crim R 451 and s 6 Children (Criminal Proceedings) Act 1987.

18. As with many sentencing principles they do not all point the same way. Two themes have emerged: one recognises the strong community interest in the rehabilitation of an immature young person whose criminal behaviour is not well formed; the other stresses the protective function of the court, particularly where sexual offences are committed against a child: JM v R [2012] NSWCCA 83.

19. The law recognises that young people can reform and learn to conform to society’s norms. It is also accepted that cognitive, emotional and/or psychological immaturity of a young person can contribute to their offending. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s: Clarke-Jeffries v R [2019] NSWCCA 56, at [49]; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109; Campbell v R [2018] NSWCCA 87.

20. It must be asked in each case:

1. How did the child offender’s youth impact on his offending?

2. Did it play any role in diminishing his criminality?

3. Have the prosecution put forward any evidence to suggest that rehabilitation should not be the paramount consideration of the sentencing process?

Here the evidence requires each question be answered with a yes.

Mental Illness

21. In addition to his youth and immaturity there is also evidence that Gray suffers a number of mental conditions; Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD) and Post Traumatic Stress Disorder (PTSD). Gray has a disability support plan and is being treated by Mr Martino, a psychologist, for symptoms of trauma and depression. Mr Martino can continue to see Gray while he is in juvenile detention.

22. Here, Gray’s mental conditions could not be said to directly contribute to his offending in a material way. However, his various psychological problems are important to an understanding of what he did and do reduce moral culpability. That said, these influences coexist with and cannot be unravelled from the impact of his immaturity on his offending and should not be double counted. However as Allen J noted in Engert v R (1995) 84 A Crim R 67, “…the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: "Well, you would not expect him to get the same sentence as someone else”."

23. General deterrence, the impact of a sentence on others who might be tempted to offend as he did, is always of considerable importance in child sex matters but here also the offender can be regarded as being less of a vehicle for the application of this principle than others not so afflicted. Specific deterrence remains important; there must be a constant reminder of the need for Gray to engage in treatment as with that treatment and continuing support it is doubtful he will reoffend: DPP v De La Rosa [2010] NSWCCA 194.

Juvenile Justice Report

24. A comprehensive report from Juvenile Justice sets out Gray’s family background and a history of conflict with his mother: exhibit B. Although an intelligent and capable student there had been problems at some schools but there are no reports of behavioural problems or sexualised behaviour,

25. The Juvenile Justice report notes difficulties he has had adjusting to the custodial environment and instances of self-injurious behaviour and suicidal ideation. Given Gray’s denial it has been difficult to assess whether or not he is capable of understanding risk factors or expressing remorse. He is however, willing to engage in risk management and safety planning. Gray has maintained contact with prosocial friends in the community. Dr Paterson who contributed her opinion to the report does not believe it is necessary for Gray to admit his guilt for him to be suitable for interventions, which are available in custody and on release. A plan is in place. Dr Paterson recommends Gray remain in juvenile detention so that matters of concern arising from his autism, mental health and trauma background can be responded to.

Subjective case

26. Gray has never been in trouble with the law before his arrest for this matter. He was 16 at the time. He is now 18. He was initially bailed refused. He has spent from 28 November 2017 to 20 February 2018 in detention before allowed release on strict bail conditions. He kept to those conditions although one technical breach led to him spending a night in police custody. I refused him bail on 26 July 2016 following the jury verdict. It is agreed that to take account of time served this sentence should date from 29 April 2019.

27. A special education teacher spoke of Gray as a kind, quiet, gentle and intelligent young man who has potential for a bright future. She offers support on his release.

28. His grandmother confirmed in evidence that she will continue to support him and provide accommodation on release; as she did while he was on bail. She gave me some family history particularly his conflicts with his mother in the time preceding the disclosure. Both, she said, had become adept at pushing the others buttons and she would take Gray home with her to give them breaks.

29. Mr Evans, a child psychiatrist, confirmed a diagnosis of Autism Spectrum Disorder level 2 from 2010 to 2017. Mr Martino noted his continuing treatment of Gray, which started in 2019. Other material confirmatory of Gray’s problems was provided by NDIS, Victim Services and Headspace documents.

30. Ms Howell, in her report, told me that Autism is a condition of early onset and poses multiple problems in health development. She concluded that despite his disabilities Gray had in her opinion no deviant or obsessive features. She used her own professional experience and applied both static and dynamic testing tools. She concluded that Gray’s willingness to participate in sex offender treatment and a number of protective features all suggests his risk of re-offending falls into the below average range. She adhered to that opinion when cross-examined.

31. In her opinion Gray “would benefit from treatment plans and interventions which appreciate his experience of the world as a young man on the autism spectrum and the idiosyncratic way he experiences the world and learns new information.” She pointed out his suicidal inclinations and ruminations are a concern that must be addressed and monitored.

32. In her evidence Ms Howell pointed out that although 16, Gray was still ignorant of sexual matters. He understood sexual activity with his sister was not normal but he may not have had the maturity or knowledge then to have understood the criminal implications of what he did - he didn’t understand the rules. He had no relationships from which he, as a concrete thinker, could learn.

33. The history given to both Juvenile Justice and Ms Howell is at odds with the offending towards his sister. There was no history of significant behavioural problems apart from conflict with his mother. Gray has no criminal record. He had a small group of close pro-social friends at school and an age appropriate relationship with a girlfriend. Nothing before me explains why Gray offended as he did.

Impact of Denial

34. Gray is not to be punished for exercising his right to trial nor should his maintenance of his innocence unduly interfere with his rehabilitation programmes. Those programmes can, I am advised, deal with underlying problems and do not need, as a premise, acceptance of responsibility.

35. A release plan can be put in place which can encourage rehabilitation.

Sentence Structure

Special Circumstances

36. The evidence relating to Gray’s: youth; his complex needs; his need for treatment in the community and to help him adjust to normal community life and the unlikelihood of his reoffending and prospects for rehabilitation, all provide a strong basis for a finding of special circumstances. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offence and the other manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, at [59].

Special Circumstances - s 19 Children (Criminal Proceedings) Act 1987

37. Gray is now, at law, an adult. If he is to continue to serve his sentence in juvenile detention as both Ms Howell (at page 7) and the Juvenile Justice report recommend an order pursuant to s 19 Children (Criminal Proceedings) Act 1987 must be made.

38. I am satisfied that there are special circumstances justifying his detention as a juvenile offender. The evidence establishes that:

1. Gray is vulnerable on account of his disabilities.

2. A therapeutic program of counselling by Mr Martino, psychologist is only available in detention centres. Adult gaols do not generally allow such private treatment.

3. If Gray were sent to an adult Correctional Centre, there would be an unacceptable risk of him suffering physical or psychological harm, due to the nature of his offence. It is notorious that in both adult and some juvenile detention centres those who have been convicted of child sex offences are often singled out for violent retribution by other prisoners who prey on those lower in the “pecking order.”

Submissions

39. I am indebted to Ms Stares and Mr Scully, Deputy Senior Crown Prosecutor, for their comprehensive submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters they raised but I have considered and attempted to address each in this judgement.

40. Ms Stares, in conclusion, submitted that taking into account Gray’s background, immaturity and many psychological problems, the time served in custody and on strict bail, could allow for a suspended detention order to be imposed.

41. Mr Scully accepts that a s19 order should be made and that a special circumstances finding is justified to allow Gray more time in the community. He submits however that nothing other than full time custody could meet all the purposes of sentencing, specifically, appropriate punishment and recognition of the harm done to Jane.

Other cases

42. I have had regard to other cases to which I have been referred: MFI 1. I am also assisted by two Judicial Commission publications: Sentencing for the offence of sexual intercourse with a child under 10; P. Poletti, P. Mizzi and H. Donnelly: Sentence Trends and Issues. no 44, 2015 and Juvenile sex offenders in the criminal justice system, D Kenny, Judicial Officers’ Bulletin, Vol 27 No 4, 2015: MFI 2 and 3..

43. The consistent application of principle must always be considered. There are, thankfully, too few other s 66A cases involving offenders aged 16 for any pattern to be discerned but these references do help guide the exercise of my sentencing discretion. However, each case and each offender is individual and requires independent consideration.

Synthesis

44. I must have proper regard to the various purposes of sentencing. While competing factors must be taken into account there is no correct balance of those factors: Veen v The Queen No 2 (1988) 64 CLR 465, at [478]. A court does not simply average out such considerations. One factor can be determinative.

45. Even when dealing with young offenders, when a serious sexual crime is committed against a young child, the criminal law is concerned with the utilitarian value of general deterrence, just punishment and retribution. Retribution is a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267.

46. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of an offence. In addition, particularly in matters such as this, sentencing courts have an obligation; to vindicate the dignity of the victim, to express the community's disapproval of the offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of the offending: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38, at [52] to [58].

47. On the other hand a sentence must endeavour to attempt to protect the community from further offending. While removal of an offender from the community can do that for short time Gray must be returned to normal community life. It is important to note that:

“ The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm...:” Yardley v Betts (1979) 22 SASR 108, at 112-113, cited with approval in Blackman & Walters [2001] NSW CCA 121.

48. Here, without in any way intending to minimise the objective seriousness of his crime, which was serious, emphasis must be given to Gray’s rehabilitation. He must be returned to the community and he should not be returned to it in a worse position than when he went into custody. His crime was committed by an immature young man, still at the time a child. His behaviour was not as morally reprehensible as an adult’s. His criminal and moral failure should not be equated with those of an adult. That said, he well knew the wrongness of his act against his young sister. His crime carries a maximum penalty of life imprisonment. Even when sentencing a child that maximum must be given content. There must be a further period of imprisonment.

Orders

49. You are convicted of Count 2: The sentence will commence on 29 April 2019. There will be a non-parole period of 1 year 6 months. Gray is eligible for parole on 28 October 2020. There will be an additional term of 1 year 6 months. Total term of 3 years imprisonment expiring on 28 April 2022.

50. Order s 19 Children (Criminal Proceedings) Act 1987 order:

I am satisfied that there are special circumstances justifying his detention as a juvenile offender. The evidence establishes that:

1. Gray is vulnerable on account of his disabilities;

2. Therapeutic programs counselling by Mr Martino, Psychologist are only available in detention centres;

3. If he were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, due to the nature of his offence.

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Decision last updated: 09 October 2019