R v I .D and O. N - [2007] NSWDC 51

No judgment structure available for this case.

CITATION: R v I .D. & O. N. [2007] NSWDC 51

HEARING DATE(S): 15/08/06; 26/10/08; 15/12/06

JUDGMENT DATE:
25 January 2007

EX TEMPORE JUDGMENT DATE: 1 June 2002

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: O.N. convicted on 11 counts. Sentenced to overall sentence of 12 years with NPP 4years 2months 18days [195]; I.D. convicted on 3 counts. Sentenced to overall sentence of 9 years 11months with NPP 4 years [210]

CATCHWORDS: Criminal Law - juvenile offenders - home invasion - robbery in circumstances of aggravation - sexual offences in circumstances of aggravation - single mother - 5 year old son threatened - objective seriousness - sentencing according to law - standard non-parole period - mid range of seriousness - victim impact statement - subjective features - sexual offenders' course at Baxter JDC - appropriate relationship between minimum and additional terms when sentencing youthful offenders.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987; s. 6, 18, 19.
Crimes Act 1900 (NSW) s61JA.
Crimes (Sentencing Procedure) Act 1999 ; s32, 54A, 54B.

CASES CITED: The Queen v Gladue [1999] 1 SCR 688 at [80].
R v Cuthbert CCA NSW (1967) 2 NSWLR 329.
R v Rushby [1977] 1 NSWLR 594.
R v Hayes [1984] 1 NSWLR 740.
R v Gebrail, unreported, NSW CCA 18-Nov 1994
R v Hartikainen unreported NSW CCA 8 June 1993.
R v May (1938) 55 WN (NSW) 29
WKR (1993) 32 NSWLR 447
R V Way (2004) 60 NSWLR 168 at [85] – [86]
R v Pham
R v Hearne 124 A Crim R 451 at 461 [39]
Roper v Simmons 543 U.S. 2005 1 at pp15-16
Attorney General Application under s37 Crimes (Sentencing Procedure) Act 1999; No. 1 of 2002 (2004) 61 NSWLR 305

PARTIES: Regina
I .D. - a juvenile
O.N. - a juvenile

FILE NUMBER(S): 06/21/0058; 06/21/0096

COUNSEL: Crown: Mr A Clout
O.N.: C. Salsone
I.D.: H.F. White

SOLICITORS:
M/s J. Davis, Solicitor for Public Prosecutions.
Mr T. Keenan, Legal Aid Commission

JUDGMENT
His Honour: This sentence will take probably more than an hour and a half to read. It is necessary for these things to be said so that the courts understand, and hopefully you will understand why these sentences are being passed.

Section 11 of the Children (Criminal Proceedings) Act 1987 applies to these proceedings and the name of each accused is not to be published, nor is anything to be published which would disclose their identity. Section 291 of the Criminal Procedure Act 1986 also applies to these proceedings. The name of the complainant is not to be published, nor is anything to be published which would disclosed her identity. Likewise the name of the complainant’s son is not to be published, nor is anything to be published which would disclose his identity.

Remarks on Sentence
1 Attitudes vary among the community as to what, of a very wide range of activities and ambience, is an acceptable expression of sexual interest by one party towards another. Usually the law does not seek to enter the bedroom of law abiding citizens no matter what their sexual proclivities may be. Fundamental to this tolerance is that any sexual activity must be consensual. Where consent of a party, invariably the weaker party, is absent then even a touch of another by an offender pursuing, or claiming to pursue a sexual interest becomes criminal conduct.

2 Shortly after 8pm on 6 March 2005 two young teenage males unlawfully entered the home of a mother alone with her five year old son. During their stay these two youths robbed her at gunpoint. Worse, however, was to follow. On ten occasions she was brutally, sexually assaulted by one or other of the young persons whilst that offender was in the company of the other.

3 Each presented as being driven by a lust, insatiable unless the victim was degraded, humiliated, terrified and experienced the unbridled lawlessness of power that comes from the point of a gun.

4 Each youth today is to be held accountable for his part in this wanton conduct that left behind a traumatic and scarred victim.

5 On 29 May 2006, when this matter was set down for a separate trial I. D. pleaded guilty to three counts in an indictment alleging eleven criminal offences by him whilst in the complainant’s unit on 6 March 2005. The counts to which he pleaded guilty were (1) robbery in company whilst armed with an offensive weapon and then breaking out of the complainant’s premises; (2), at a time when he was in the company of his co-offender he had sexual intercourse (fellatio) with the complainant without her consent knowing that she was not consenting and immediately before that sexual intercourse threatened to inflict actual bodily harm upon her and her son by means of an offensive weapon; (3) the third count was in the same terms, but related to a different act of fellatio in circumstances significantly different, to which I shall come shortly.

6 The Crown accepted these three pleas of guilty in full satisfaction of that indictment. The Crown also sought to record that even though the plea came on the day of the trial, the complainant felt relieved at not having to go through the ordeal of being cross-examined.

7 O. N. pleaded guilty at the Local Court to all eleven charges, now contained on an indictment, separate from the other offender’s. Although each alleged offence on the indictment was expressed in identical terms, the conduct covered by each charge differs.

8 The charges are, each phrased that at a time when he was in the company of his co-offender, he had sexual intercourse without consent of the complainant and immediately before the sexual intercourse threatened to inflict actual bodily harm upon her by means of an offensive weapon. He asks that when I sentence him for count eleven, the most serious count in the indictment, that I take into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 a break and enter and commit serious indictable offence, namely, threaten complainant while in the company of another. That offence is said to have occurred on 6 March 2005; and that I further take into account on another Form 1 an attempted armed robbery of a pizza delivery man that occurred on 2 April 2005. The break and enter and commit serious indictable offence is the break and enter which is said to have occurred at the complainant’s premises.

9 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for each of these offences before this Court committed by this offender, harming, in particular, this victim in this community (see The Queen v Gladue [1999] 1 SCR 688 at [80]).

10 My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to each offender, subjective matters they are called. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offences and to each offender.

11 My fact finding task in this case has been circumscribed, in that the parties have tendered an agreed set of facts for each accused, to which I shall shortly return.

12 It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve him or her from the fact finding responsibility of a judge, it simply limits the material from which the facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred it must be remembered that the Court can only find facts from the evidence placed before it.

13 An agreed statement of facts was also tendered by the Crown in its case against O. N. Nor is the Court involved, of course, when it comes to agreed statement of facts, in policy or bargaining’s considerations that may have led to such tender of evidence. The Court’s task is simply to find the facts on the evidence presented.

14 Before any sentence can be made there are likely to be technical questions relating to, firstly, what jurisdiction ought to be engaged in respect of the first count to which I. D. pleaded; secondly, deterrence, discounts, whether special circumstances are to be found, parity, totality, how the Form 1 matters will impact upon the sentence, whether (as they do) any of these offences attract a standard non parole period and if so the lengths of the parole periods. Finally, of course, the ultimate sentence that is to be imposed.

15 I will also need to have regard to the relevant provisions of s 6 of the Children (Criminal Proceedings) Act 1987 and relevant case law when dealing with young persons who have breached the criminal law in circumstances such as these young men.

16 There is a victim impact statement that has been tendered. I will need to place it in context in these proceedings.

17 What weight needs to be given to all of these matters against the imperative, that all sentencing should have as its primary focus, including the sentencing of children, the protection of the community will need to be determined (see R v Cuthbert (1967) 2 NSWR 329; Rushby v the Queen [1977] 1 NSWLR 594; and R v Hayes [1984] 1 NSWLR 740).

18 In the case of I. D. the facts document was tendered upon the basis that it contained allegations of fact made by the Crown and that Mr White, counsel for I. D., would indicate he disputed nothing contained in the document. Mr White sought, though, some limitation of the effect of the facts upon the criminality of his client. I will return later to some of Mr White’s submissions and approach.

Facts
19 J.B., the complainant, a Fijian national, aged forty and her five year old son lived together at a unit in Ernest Street, Lakemba. The unit was situated on what was said to be the second floor. There were two balconies; one off the bedroom, that faced towards the street. The other balcony was situated at the end of the unit, located near the front door and presumably off the living area of the unit. I have assumed it was facing towards the driveway.

20 March 6 was a Sunday night. The complainant was at home, dressed in track suit pants, underwear and nightie. She was watching a DVD movie in her lounge room. Her young son was asleep on the lounge. Shortly after 8pm the two youths gained access to the second floor balcony. It would seem they did so by use of Otto bins. The floor of the balcony is in excess of 3.6 metres from the driveway or garden surface. If they did not use the wheelie bins I am unable to determine how they reached the balcony, but there is evidence suggesting that that was how it was done.

21 In the two or so hours preceding their reaching the balcony the two youths had been at a park named Wiley Park. That park is to be found at the intersection of King Georges and Canterbury Roads. Ernest Street appears to be one block east of the park. I. D. gives evidence that he consumed half a bottle of Jim Beam, two grams of cannabis from a bong he apparently had with him and an ecstasy tablet in that two hours.

22 His evidence is that he was intoxicated to a point where his head was not straight, he was unaware of things around him and his eyesight was a bit blurry, that it really affected him mental wise for his thinking.

23 However, his evidence is his motivation for the offence was to obtain money for drugs because he was coming down off drugs (transcript 8/9/06 p 34).

24 O. N. at the time of the offence told Juvenile Justice he was not under the influence of alcohol (Juvenile Justice report 14/6/06 p 6). He did, he said, however, consume a third of a bottle of Jim Beam and smoke one or two sticks of cannabis.

25 There are a number of reasons to reject I. D.’s self-serving statements of inebriation to the level he claimed at the time of his offending conduct. I hasten to note I do not reject that he had been drinking Jim Beam or smoking cannabis. It is the level of inebriation that is in question.

26 He accepts in cross-examination he was able to gain entry into the unit with little trouble. He was quick to cover his face when he recognised someone was present as he entered the lounge room, suggesting a capacity to respond quickly and appropriately to a perceived risk of being identified.

27 The complainant, in her victim impact statement, makes reference to a mask. There is nothing in the agreed facts consistent with a mask other than the T-shirts. I simply note that I have difficulty in resolving that problem.

28 There is no recorded observation in the evidence from the victim, nor concession in the crown case that either youth appeared to be inebriated to the extent I. D. claimed or at all. The absence of such an observation is consistent with them being present and in apparent possession of their faculties.

29 I accept there probably was some consumption of drugs and/or alcohol. But, the defence has failed to establish that I. D.’s consumption had any significant effect upon his level of awareness, his capacity to determine independently his level of participation in the events whilst inside the premises, or his capacity to perform any or all of the acts he desired to perform.

30 Upon gaining entry, but before entering the lounge room, both youths covered their faces with T-shirts. It is likely the youths heard the sound of the TV and assumed people were home. That they continued with their criminal enterprise is of concern. I. D. claims to have seen J.B. from the bedroom. No diagram of the unit has been tendered, but I do know that the unit is one of at least two bedrooms, the main bedroom and the son’s. I know it has a bathroom. It is likely therefore that there is a hallway leading from the lounge or living area to the bathroom. It is likely the bedroom doors open onto that hallway at right angles. See exhibit J.

31 If so, and they were deep inside the bedroom, it is not likely I. D. would have seen anybody in the living area. I am not satisfied J.B. had been seen before the youths left the bedroom. Nor is there any evidence, other than their willingness to enter the lounge room, that they knew for certain that it was relatively safe for them to do so, although of course they had the weapon.

32 The fact is I cannot be satisfied they targeted these premises, or knew they were entering into the bedroom of premises where there was only a female and her son at home. Nor can I be satisfied on the balance of probabilities that they went in totally blind. From the bedroom they must have heard the DVD dialogue or music or both alerting them to the probability of a viewer or viewers, but it is difficult to see from the bedroom that they could have been satisfied for instance that no male was present, or that they in turn were not the ones that were outnumbered.

33 Their entry time was at 8pm. Neither has any reason to believe the premises were deserted other than claimed darkness of the bedroom. At 8pm on a Sunday night most people are in their homes. There was a second balcony; there was a driveway. Lights or reflections from the TV may well have been visible. Noise from the TV may well have been audible. It surely is likely that one or both youths checked down the driveway to see if any better access could be gained from that balcony. Indeed O. N.’s evidence is that the front screen door of the bedroom balcony was open. As I say, he does say there were no lights, but the TV of course was on and light reflection of varying colours would have come from it. The presence or potential presence of an adult male would likely have deterred them, yet they did not appear to be deterred. O. N.’s evidence is that once inside the unit there was light visible from the lounge room. It is at this point he says that they put their T-shirts over their faces.

34 I only review that evidence to show why it is that I cannot be satisfied on the balance of probabilities that they knew no one was home.

35 As evidence stands neither side has satisfied me on the relevant onus of aggravating or mitigating feature so far as awareness by the offenders of the presence or otherwise of people in the unit.

36 J.B. was shocked to see the male figures with faces hidden by T-shirts. She shouted and screamed. She noticed one, O. N., was holding a small black pistol in his hand. Having read the complainant’s victim impact statement I am satisfied the child did not wake, notwithstanding the screaming of the complainant and no doubt the commands of “Shut up, shut up” called out by O. N. He aimed his weapon at the five-year-old’s head saying, “I swear I pull the trigger if you make a sound”. O. N.’s evidence was he had been given the weapon by I. D. when they entered the unit, meaning as I understand it, outside the unit, but when they were about to enter the unit. I accept that that is likely to have occurred because there was no cross-examination of him on that evidence.

37 There was nothing in the demeanour of either youth to suggest that they did not mean what was being said to the victim. It is at this point that complete power over the situation was their’s. Thereafter each could do as he willed. Each took advantage of that situation.

38 O. N. demanded the jewellery she was wearing. Scared she complied, removing necklaces and handing them to him. She was forced into the bedroom by O. N. where further jewellery and some cash were taken from her.

39 I. D. was also present in the bedroom ransacking her wardrobe, looking for and removing items including a purse containing $10. More money was demanded. She denied having any more money present. I. D.’s response was, “She’s telling lies, shoot her, shoot her”. Such a response was bound to cause terror in his victim. I. D.’s search of the wardrobe was resumed. He found a bank keycard. She was asked by I. D. whether there was any money in this account. There was none. He threw the card to the floor. I. D. found further jewellery located in various points in the bedroom. Eleven fine twenty-two carat bangles and a number of eighteen and nine carat rings with precious stones were included in items captured by I. D.

40 The taking of all of that material constitutes the robbery allegation contained in the first count on the indictment against I. D. and constitutes the ingredients of the Form 1 matter against O. N.

Sexual Assaults Committed.
41 O. N. demanded J.B. sit on the edge of her bed and remove her clothing. She hesitated. “Do as you’re told and hurry up.” he said. She started with her nightie. O. N. grabbed the nightie and pulled it off. She was naked from the waste up. O. N. removed his own pants and underwear. His penis was semi-erect. “Do a mouth job.” he said. He grabbed the back of her head and forced her towards his penis, which he forced into her mouth without her consent. He became fully erect. This episode ended when she commenced to be sick. My own view is it is likely she gagged because it was thrust too deep down her throat.

42 O. N.’s response was to push her back onto the bed. “Give me your pussy.” he demanded. Her tracksuit pants and underwear were pulled down to her knees, her legs were forced apart, he then penetrated her vagina without her consent with his penis. He sought to stimulate his penis by moving back and forth several times. He stopped. “No good, come to the room”. O. N. forced her into her son’s bedroom. There was a sofa bed in this room. He forced her onto this bed. He lay on his back ordering her to sit on his erect penis. Fearing she could be shot if she did not obey she sat astride O. N. who guided his penis into her vagina without her consent.

43 I. D. entered the room. O. N. pushed her towards one side and left the room. I. D. forced her to fellate him. He put his penis into her mouth. That constitutes the fifth count on I. D.’s indictment. After a while he left the room, but O. N. returned. He then inserted his penis into her vagina. He left the room only to return after a short interval. He placed the pistol on the mattress. “Do the mouth job again.” he demanded. He forced her head yet again towards his penis. She was forced to fellate him.

44 I. D. entered the room. O. N. already knew why. “We both want to do it together now.” he said. He lay on the bed forcing their victim to sit on him. Throughout the victim was fearful of being shot or at very least hurt if she did not comply. She was not consenting to this debauched treatment by them. She attempted to fellate I. D. but was unable because of the position each was in. Both offenders thereafter changed their position so that I. D. could achieve penetration of the complainant with his companion.

45 His victim fellated him. She was not consenting. She was being penetrated into her vagina and did not consent to that either. After several minutes I. D. terminated the fellatio, walked from the room saying to his co-offender, “Hurry up”.

46 This episode constitutes count number 10 in his indictment. O. N. continued with the unlawful intercourse upon which he was engaged. He stopped, dragged her through the unit, apparently looking for his co-offender. However, I. D. had left, breaking out through the front door. It is this breakout which constitutes the other part of the element of the indicted matter, count 1.

47 O. N. went to the balcony, possibly the balcony from the living area, I do not know, and spoke to I. D. However he was not yet finished with his victim. She was taken to the bathroom, sat upon the toilet seat and told to do the mouth job. O. N. forced his penis into her mouth again without her consent. She was then made to stand up, face the mirror and lean forward. Her final indignity was to be penetrated anally by this youth she did not know and at a time when she was not consenting.

48 In each case of sexual penetration of the complainant by one offender, that offender was in the company of his co-offender. As O. N. left the premises through the front door he said to his victim, “Do not contact the police, otherwise I will return and kill your son”. That threat had significance to the victim because ultimately when she contacted her sister who directed her to contact the police she was fearful of so doing. Ultimately that fear was put to one side, or overcome or ignored as the case may be and police were contacted.

49 What went on in J.B.’s unit that night was not so much about sexual experience for these two young men, but rather the use of sex to satisfy a darker side of their personas. This was an exercise in humiliation related to culture, gender and their victim’s vulnerability or weakness.

50 Earlier that night in the presence of I. D., O. N. had discovered J.B. may have been a Muslim. She was wearing a Muslim locket. He had taken the locket from the chain, threw it away saying, "We hate Muslims." While I have no doubt his co-offender did not know this outburst was to happen he did nothing to disavow it. Both young offenders come from families who appear to me to practice the Muslim faith. By their conduct each showed an absolute disrespect, if not contempt for a woman who was also a mother.

51 I am satisfied beyond reasonable doubt that each offender when he penetrated the victim did so without using a condom. Mr White claimed the evidence did not permit me to make such a finding. He apparently had overlooked the victim impact statement. The victim spent three months worrying while tests were undertaken as to whether she had contracted AIDS or some other communicable disease. Further, there is no account of a condom being used, a detail I would have confidently expected both sides to bring into evidence if it were so. The absence of a condom would not necessarily be the subject of specific evidence but rather the norm, while the presence of a condom would I anticipate be the subject of specific evidence.

52 When informed of the finding I was likely to make Mr White did not seek to re-open the evidence to lead positive evidence of the use of a condom by his client. A counsel of his experience would be well aware that that would have been a mitigating factor. The defence case is that neither youths went to these premises for any purpose connected with sex. It is unlikely in these circumstances that either, given their age, would be carrying a condom in his wallet.

53 The pistol taken to the flat was an imitation pistol incapable of firing a projectile. I have recounted the facts more from the complainant’s perspective than from the perspective of the accused because the complainant did not know that the weapon that the youths had was not armed and was incapable of firing or killing her.

54 The Form 1 matter against O. N. that I have not yet covered is that whilst in the company of two other juveniles he agreed to rob a pizza delivery man. An order was placed. Just before the pizza delivery driver arrived one of the three juveniles noticed police nearby. He informed the others and then left, two remained. Meanwhile the driver also arrived and asked O. N. whether he had ordered the pizzas. O. N. replied, "No", and began to walk off. The driver however saw a replica pistol, presumably the same replica pistol as used in the other offences, in O. N.’s hands. Whether he attracted the attention of the police or not, I know not, but it is the fact that police intervened immediately and arrested the offender. My understanding is he has been in custody since that arrest which occurred on 3 April 2005.

55 The crown case for trial was capable of establishing the presence of each accused at the complainant’s premises via fingerprint evidence; that items stolen from her unit, and in particular her phone, were recovered in circumstances adverse to the accused. The complainant complained of the sexual assaults immediately to her sister and to police. Both offenders were positively identified by their victim in a photo array. There is every reason to think the crown case stood a reasonable chance of some success against both accused if not complete success.

56 In the absence of a plea I. D. was exposed to eleven charges rather than the three to which he pleaded. These facts are limited to, and important when assessing the defence claim of contrition. They do not, of course, impact upon the utilitarian value of the pleas.

Objective Criminality
57 From the facts as he finds them to be the sentencing judge is required to assess the object criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of each offender. That is done by comparing objectively the criminality exhibited in what are called the instant cases, that is the cases in front of me, with criminality of offences of a similar kind committed by other people. It is in this way that the seriousness of the criminality of these offences can be evaluated or assessed by me. As you would imagine the objective criminality has an important aspect in the impact on the overall sentencing.

58 A useful starting point in the assessment of objective criminality in sexual assault matters is to remind the Court of part of a judgment of one of the great appeal judges of Court of Appeal, Mahoney J.

R v Gebrail

59 In 1993 the then Chief Justice, Gleeson CJ, made the point that non consensual intercourse is an extreme form of violence and one which the community expects courts to take very seriously, R v Hartikainen unreported, NSW CCA 8 June 1993; even if no additional violence is administered other than the intercourse, R v May (1938) 55 WN (NSW) 29. Unwanted forced intrusion into the privacy, indeed intimacy of a complainant’s body and psyche against her will, by use of physical power and callous disregard of her wishes or feelings, marks the essence of criminality for these offences. Such conduct is rightly described as antisocial, violent conduct of a high order.

60 In this case the complainant was repeatedly assaulted, her intimacy repeatedly defiled. Each repetition must amount to greater criminality than the last. On one occasion both youths penetrated her simultaneously. The criminality of the particular conduct by each is aggravating by the circumstance of it also being joint conduct. Although the form of intercourse engaged by each was different I regard each as equally culpable in their criminality for that episode.

61 Normally vaginal intercourse will be of greater criminality than acts of fellatio. Anal intercourse is of greater criminality than an act of vaginal intercourse, all other things being equal. Sometimes though, of course, it may be that circumstances will promote one of those forms of intercourse in its criminality than would otherwise be the norm. Anal intercourse of course is of greater criminality because it is yet a greater invasion of a complainant’s privacy.

62 Mr White sought to argue a limitation on the criminality of I.D. in respect of the simultaneous penetration of the complainant because, it was said, I.D. was not in any way involved in a joint criminal enterprise in relation to the sexual acts committed by O N. Mr White sought to argue that at the point in time when both youths were simultaneously penetrating the complainant I. D. could not be punished for any role in O.N.’s penile vaginal penetration. He argued the law was I. D. could only be punished for the act of fellatio he was simultaneously committing, albeit that act of criminality was aggravated by the presence and actions of his co-offender.

63 Unsavoury as it may be to analyse the law in circumstances such as this, surely the answer is to be found in O. N.’s announcement, without apparent consultation with I. D., when I. D. walked into the room. “We both want to do it together now.” The “it” was an act of joint penetration. There is nothing in the wording of the charge that restricts me from finding both men sought “sexual intercourse” without consent. That is, penetration of their victim in a sexual way by part of their respective bodies without consent. I reject Mr White’s submission that I am limited as he claimed.

64 Any unwanted sexual intrusion may demean, belittle, humiliate and perhaps terrify an complainant, where, as in this case, the demeaning humiliation and terrifying is heightened the criminality will be aggravated. Each offender has been charged with committing the sexual assaults in the company of the other. That of course is an element of the offence with which I am dealing. It does not therefore constitute an additional aggravating component.

65 The commission of the sexual assault offences is in the complainant’s home and in circumstances where an unlawful purpose brought each offender into the home. Those circumstances amount to ingredients of aggravation.

66 By the time the sexual offences occurred it was apparent to each offender that the complainant was vulnerable. Her vulnerability had as I see it four sources. She was in her home with no other adult present. She was outnumbered by both offenders. They were armed, and she was the carer of a five year old son. The offenders played upon each of her vulnerabilities. In so doing their criminality is aggravated, notwithstanding that aggravation for the weapon and company are elements of the offence. The presence of the offensive weapon is an ingredient of the offence and does not on its own amount to circumstances of aggravation. It is its repeated use to terrify that is the circumstance of aggravation.

67 Ms Salsone submitted that I should find the presence of the gun was not for the purpose of committing sexual offences but for the purpose of committing a robbery and to that extent a mitigation of the sexual offences. Implicit in this submission is the concession of a contemplation by the offenders of the presence of persons in the unit, or recklessness as to whether someone was present or not, in their being armed with a weapon when entering the unit. Further the taking of the pistol is some evidence of a willingness to use it for an unlawful purpose. Subject to these matters I cannot be satisfied beyond reasonable doubt the weapon was taken to advance any purpose specifically relating to the sexual assault.

68 There is no evidence before me and I can make no finding as to whether either offender ejaculated.

69 There was some level of planning. It related to the selection of the relevant premises or the rejection of other premises and the selection of the most appropriate premises, the going in company and the going armed with a weapon and who would have the weapon in the premises. Those aspects of the planning were all probably done on relatively short notice, although, I am concerned with the presence of the weapon at the park for a period of a couple hours before. It is to be remembered that the evidence is that the youths went from the park in pursuit of a robbery and began their walking around without visiting anywhere first.

70 It was submitted that neither type of offence was motivated by hatred for or prejudice against any group to which the offenders did not belong. As I earlier remarked by their conduct I am satisfied beyond reasonable doubt there was a gender based prejudice which can best be expressed as a lack of understanding of and respect for the role and position of a woman in our community. Women are not to be viewed as menial objects whose feelings, sensitivities, do not matter, nor as objects available for random and non consensual sexual defilement.

71 It was submitted and I accept that the role of the offenders in relation to the entry and the robbery are equal. While is true that only one carried the weapon both were aware of its presence and it had been transferred from one to the other. Both are equally busy unlawfully collecting items of value to take with them.

72 On the other hand O. N.’s role in the sexual offending was substantially greater than I. D.’s. O. N. appears to have instituted the sexual assaults with his demand that the victim undress. He was the first to sexually assault her. When the evidence is analysed O. N. penetrated the victim eight times while I. D. penetrated her two times and there was a third attempt. It is also to be noted that I. D.’s penetration was confined to fellatio.

73 It was submitted that I would find no harm or injury was done to the victim’s son. Certainly there is no evidence of any physical injury or physical harm. However, commonsense demands that I recognise the strong likelihood of trauma at some level being experienced by the young child as a consequence of the experiences of his mother. The trauma that he is in fact experiencing is not trauma imposed directly by the offenders. It is trauma in a sense being imposed by his mother as a consequence of what the offenders did to her. If they do not understand what I mean by that, it will become apparent when I read a victim impact statement as to how she now is handling her child. No amount of shielding him from the investigations and trial could shield him from the dramatic sequelae his mother must have experience. There is also probably growing awareness that he was present and potentially at risk while two youths were perpetrating terrible violence against his mother.

74 Mr White has submitted that I. D.’s involvement in the sexual acts was influenced by the acts of O N in sexually assaulting the complainant. I. D. gave evidence. If he was so influenced, that was a matter of significant importance in I. D.’s case. No evidence of what motivated or influenced I. D.’s acts leading to his sexually assaulting the complainant was led in terms that are now submitted are to be inferred. I decline to make such an inference.

75 There is no evidence that the young child was aware of what occurred. Having read the victim impact statement I am satisfied he is not yet aware his mother was sexually assaulted, although it would seem he is aware she was robbed and is troubled by the home invasion of his mother’s unit.

76 At the time of this offence O. N. was on parole. He has completed nine months of a two year parole period. His antecedents show he was sentence to three years imprisonment to conclude on 15 June 2006. That imprisonment was to be served in juvenile detention. It would appear special circumstances had been found and he was released in June 2004 after serving twelve months in a juvenile detention centre. This offending conduct occurred nine months later. He had not yet completed half of his parole period.

77 The commission of the offence whilst on parole constitutes an aggravation of the criminality. The reasons why that is so are complex, but the offenders can take it from me that the law is well established that the commission of offences whilst on parole constitutes an aggravation of the criminality of the offences that are so committed.

78 Ms Salsone argues the level of aggravation should be diminished because the offence was committed at a time when the offender had a drug dependency and both his older brothers were in custody for offences involving violence. There was an absence of significant family support for him therefore and his youth also is a factor that in my mind mitigates to some extent the level of aggravation flowing from the commission of these offences whilst on parole.

A question of jurisdiction re the breakout and robbery.

79 All sexual assault charges faced by I. D. and O. N., by virtue of the provisions of the Children (Criminal Proceedings) Act 1987 are to be regarded as “serious indictable offences”. That is to say therefore, the sentences for those offences will be determined “according to law”. Put another way, what that means is the jurisdiction of this Court will be exercised for those offences. It will exercise the same jurisdiction that it exercises when sentencing adults. That will mean the provisions of the Crimes (Sentencing Procedure) Act 1999 and the relevant common law will determine the sentencing outcome for the sexual assault offences.

80 The first count to which I. D. has pleaded guilty in his case is not “a serious indictable offence but an “indictable” offence. In most circumstances a juvenile offender who commits an indictable offence can be, and is sentenced by the Childrens Court, in which case penalties prescribed by the Children (Criminal Proceedings) Act 1987 would apply.

81 Generally, as both offenders I imagine would know, there is more latitude given to Childrens Court judges to focus on rehabilitation than the more punitive sentencing paradigm that I must administer. Mr White has not sought to argue otherwise, at least I have no note of it, and the fact is that I. D. must be dealt with according to law for the first count in his indictment for reasons that I shall give. In WKR, (1993) 32 NSWLR 447, the Court of Criminal Appeal, which is the court that rules my Court, made it clear that although it must take account of s. 6 of the Children (Criminal Proceedings) Act, must also sentence according to law

where the nature and incidence of the offence have the quality of an adult crime rather than a crime deriving from the offender’s state of dependency and immaturity and

where, because of the nature and incidence of the crime and other personal circumstances of the offender he should not be allowed to shelter behind the provisions of the Children (Criminal Proceedings) Act and also

where it is appropriate that a sentence of imprisonment accompanied by a parole period is to be set.

82 The robbery and breaking out offence was done in company. A weapon was present and it was used to overpower the will of the victim so as to effect the robbery. The robbery provided a platform upon which further unlawful behaviour was committed. That is to say immediately after the robbery several serious indictable offences were committed including two such offences by I. D. In those circumstances it is appropriate that this offender should serve both a custodial sentence in a detention centre and ultimately in a period of parole under supervision. Accordingly, for the robbery offence I intend to deal with the offender, I. D. according to law in respect of the first count in the indictment (see WKR (ante) per Hunt CJ and CL).

A question of midrange seriousness

83 In the course of assessing of the objective seriousness of each offender’s criminality, because these are offences, (that is the sexual assault offences), which have a standard non-parole period attached to them, I am required to assess whether any of the sexual assault offences falls within a midrange of seriousness. That is because all charged sexual assault offences are offences to be found in Item 9 of Table 2 of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act. Section 54B(2) commands that a standard non-parole period be set unless the Court determines there are reasons for imposing a longer or shorter sentence. Section 54A confines the standard non-parole period for an offence that falls in the middle range of objective seriousness for offences in Item 9 of the Table. The standard non-parole period for these offences, if they qualify as midrange of seriousness in Item 9, is fifteen years of imprisonment.

84 My task now is to determine whether any offence falling within item 9 qualifies as one of a midrange of seriousness.

85 I have thus far reviewed the objective seriousness of all offending conduct generally. When determining whether a standard non-parole period needs to be imposed, the assessment of midrange of seriousness must be done by reference to that offence standing alone. In assessing the objective seriousness of the offence, the sentencing court does not collate all of the criminality associated with the robbery, the breaking out or Form 1 matters, but simply assesses the criminality of the subject offence. While the offence is to be assessed standing alone, the circumstances in which it is committed require recognition that when the sexual assault occurred the offender was unlawfully on the premises and was there for an unlawful purpose, namely robbery.

86 As I earlier remarked, each subsequent sexual assault must be regarded as involving more serious criminality because of the sexual violence already administered to the victim. Clearly she was more damaged and more distraught after each attack upon her, therefore, subsequent attacks are more serious criminal conduct.

87 My inquiry now requires consideration as to the actual actions of each offence, the consequences of the offender’s conduct upon the victim and to such factors as may have affected each offender’s mental functioning when determining to commit the offence and during its commission (see R V Way [2004] 60 NSWLR 168 at [85] – [86]).

88 Putting to one side the offences relating to a joint penetration of the complainant without her consent and to the act of anal intercourse committed by O. N., I have determined that the remaining sexual assaults would not reach a midrange of seriousness. These offences were conduct that was committed by one offender or the other, although while in company of the other, not in the immediate presence of the other. The others support was more tacit than direct. There is no evidence that the sexual assaults had been planned prior to arrival in the flat. If the evidence of O. N. is accepted, and it was not challenged in cross-examination, they did not know anyone was at home and selected the place after walking around as the most suitable place to rob.

89 I have expressed my reservations about this aspect of the evidence, or absence of it. Even so, on any view, there is no evidence either knew the identity of the persons present before they walked into the lounge room. I accept the offences were not the result of any planning or contemplation until after they arrived in the lounge room. A single episode of fellatio or even vaginal intercourse without more, committed by these offenders in such circumstances would not in my view be sufficient to place that sexual assault within a midrange. There was violence by way of threats, including a threat to harm her child. Further violence arose in forcing the victim from one site to another. While the threats and violence additional to the sexual assaults must have been terrifying, I do not accept the level was such to take those generally earlier episodes into the midrange of seriousness.

90 I have indicated I do not regard either offender as so affected by alcohol and drugs as to be impaired in forming intent or exercising the will necessary to carry out the acts constituting their criminal conduct. There is however, a growing body of research coming to public knowledge that the functioning of the human brain changes with the years as a child develops into an adult. The research points to the brain generally not being in their adult form until a person is in their mid twenties. Young children it seems make decisions from part of the brain known as the amygdala, primarily an emotional centre of the brain. Adults use a different area for decision making, the prefrontal cortex. Male teenagers it seems, so far as decision making is concerned can be regarded as half developed. That is their brain functions well in calm situations but may lack ability to make good decisions when overloaded by stimuli.

91 As I say recent research is exploring this phenomenon. However, before one can move from the general to the particular there would need to be expert evidence related to the particular offenders before the Court and to the extent, if any, to which the phenomenon related to them. The Crown would also need an opportunity to test such evidence. That has not happened in this case. In this case my approach is to recognise the existence of the research, but also recognise that the extent to which it applies in this case, if at all, has not been established in the evidence. On any view though the immaturity of the offenders is a matter that would impact upon their designs.

92 The consumption of alcohol and drugs would have adversely affected the part of the brain making judgments. The Court is familiar with evidence frequently called in drink driving and drug driving cases as to adverse effects consumption of alcohol and drugs has upon the function of the judgment part of the brain. The consequences of those earlier offences upon the complainant, while no doubt very telling, were not in the category of the consequence the joint episode of penetration or anal intercourse had upon her.

93 The episode of joint penetration and the episode of anal intercourse must each qualify as an offence falling in the midrange of seriousness as viewed on the objective criminality of each. Each offender after the violence of several other sexual assaults, required the complainant to permit unprotected penetration of her mouth and vagina without her consent to two total strangers whose sexual history she did not know so both could share her deep humiliation, discomfort and terror in some debauched male bonding process. The pistol was present. These offences were being committed in her own home. I. D. had not committed as many acts of penetration as O. N. at this point. Nonetheless, he is a co-offender who was sexually assaulting the complainant in the circumstances I have just described. He was also present there for moral support for the co-offender when the co-offender was committing other offences and his victim well knew she was dealing with two intruders should she seek to struggle.

94 What elevates these offences to midrange of seriousness is the joint penetration once account is taken of all of the matters referred to. The impact of this offence upon the complainant must, as I have said, been far more profound than the other offences thus far committed.

95 The other offence qualifying as an offence falling in the mid-range of seriousness on its objective facts, is the episode of anal intercourse. It is the last of ten episodes of penetration of the complainant. Anal intercourse is a far more objectionable form of penetration of person’s intimacy than others. It results in greater physical pain to the victim than the other forms of penetration. It brings generally, greater humiliation and emotional trauma than other forms of intercourse. This offence must also have impacted more profoundly upon her than other forms of penetration.

Victims Impact Statement

96 I turn now to the victim impact statement I have received from the complainant. The material contained in the victim impact statement is not sworn evidence and has not been subjected to cross- examination. It comes indirectly from the primary victim in circumstances where, although it is hearsay, it seems to me I may accept it as reliable unsworn evidence of facts as to the offences and their effect on upon her. The function of victim impact statements such as this one is firstly to give to the victims an opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon her by the actions of her offenders.

97 Secondly, it enables the sentencing proceedings to assist her as she moves toward. hopefully, some closure of grief, resentment and brooding arising from the criminal conduct of the offenders.

98 Thirdly, the victim impact statement contributes to each offender at least hearing, and perhaps gaining an insight into the impact that his offending conduct had upon this victim. Finally the victim impact statement ensures that the court has a continuing consciousness of impact that violent crime has upon the ordinary men and women who are its victims. As such, a victim impact statement plays an important part in the administration of criminal justice.

99 Not surprisingly, the complainant says that while she was being assaulted, she was in fear of her very life every minute. She felt sure she was to be shot and she dreaded, whilst being attacked, that her son would wake to find that his mother was dead. She refers to a mask falling off and one of the men then saying “shoot her” and she thought that as a result of the mask falling off, she would be shot dead.

100 Her focus was mainly on her son during the episode and she was begging them to spare her life because of her son. She said she felt that she had to do everything that they asked. She now hates herself that she did not do more to resist. While one man was assaulting her, she noticed that the other left the room and her concern was that he had gone to the son’s room to do something about him. It is that reference to the son’s room that puts me in some doubt as to where the son was during the episodes.

101 When the assailants left, she went immediately to her son, grabbed him and was sobbing and was relieved, immensely relieved that he was alive. She had been fearful that he might have been sexually molested.

102 At hospital she was terrified of doing the examination and then the tests. She was fearful she had contracted a sexual disease. She had to wait three months for the test results to come back and she spent that entire time believing that she may have contracted AIDS or a sexual disease. Subsequent to the assault, she was unable to sleep at all and she was unable, as it were, to stay awake. She began to focus on doing extra shifts to see if she could exhaust herself, and also to keep herself out of her house because she was afraid of being home alone. She works two shifts so that, as she describes it, she can sleep like a dead person. She has now got her house deadlocked from the inside and feels that she is locking herself “like in a prison”. She will not allow her son out on the balcony, she will not allow her son to answer the door, even when his father is coming. Her son now sleeps in the same bedroom as she does because she is afraid for him to be alone. She is afraid something will happen to him. She is afraid and now she says he is also fearful because he has a sense of her fear. She now is depressed and says she is not the same person she was. She is fearful that people may find out that she has been raped because in her culture, where a woman is raped, it is said to be her fault and she is then cut off from her community. She is afraid therefore that someone will ask her questions about the episode and she may be caught in a position where she cannot deny that she was raped, and so she runs away from people.

103 She claimed to be a very sociable person before this episode. My knowledge of Fijians is that they usually are. She used to have outings with her son on the weekends, now she does nothing. When she goes out she wears a hat so it hides her face in the hope that she will not be recognised by others. She does not watch TV any more, because some of the scenes on TV remind her of the assault and are triggers for her memory. She believes herself to be short-tempered with her son, she finds herself shouting at him and will not let him watch anything on TV except children’s programs. She recognises that what she is doing to her son is bad, she knows she did not want to bring him up like this, she wanted him to grow up in an Australian culture, but she is terrified of letting him go. She is afraid to shop alone, when she sees young men she thinks of you two, even though she knows that you are in custody. She knows there is no logic in it, but she cannot help herself. She has panic attacks, becomes startled for instance, if the phone rings. She checks the peephole at the door even when her sisters visit, notwithstanding that they have telephoned her, indicating that they are coming.

104 The only people she believes she can spend her time with now, are her sisters and her partner. Her sisters have been very supportive and her partner has been supportive but she does not believe he understands what she is going through. She says it is impossible to forget. She now does not want a relationship any more but maintains the relationship for the sake of her son because she wants to keep the son’s father involved in his life.

105 She cannot bear any sexual relationship any more because it brings back the episodes that she experienced the day you people were there. She has nightmares when she is asleep and when she awakes, she can feel the events happening in her body. Sometimes that occurs to her out of the blue without a trigger. She says if it was not for her son being alive, she would sooner be dead.

106 When the gun was pointed at her son, she knew she had to obey you but she hates herself for doing so. Her only pleasure now is her work. She has no future except for the son. There is nothing for her at all she says.

107 At the trial she was to give evidence on closed circuit television and on the day of the trial she was shaking and fearful and at the last minute when the pleas were entered, she felt a great relief. She has gained fifteen kilograms in weight and is eating constantly. She says she is freaked out at the sight of any man and gives as an example a day that she went to the garage or was going down to the garage and there was a man on the stairwell. She yelled and was shaking and she sat on the stairs. The gentleman who was there got a fright, incomprehensible as to why she was screaming at him. He left and she sat there for half an hour until she calmed down.

108 She gives another example when there were two men inside fixing a car at the garages in the apartments. She got out of her car and she panicked. It was night, she left the headlights on and the door of the car open, grabbed her son and ran upstairs. By the next day when she got down, not surprisingly, her battery was dead but she will not go in the car park now. She no longer parks downstairs and she parks off the street. She moved out of that unit two months after the assault because she could not stand being there because she could see reminders of the episode everywhere.

109 She is fearful that she will be found by one or other of you or that your families will come after her. She is afraid to be alone and she cannot leave her son alone. She does not take her boy to the park any more because she is afraid people will recognise her. She took him to the park one day but was unable to get out of the car, even though her son was crying. She feels that her son is paying the price. She now has to beg people to come places with her, to take her son with her, and she feels she is bribing them because she offers them lunch. She often, she says, goes to the shower to cry so that no-one can hear her. She will not go to counselling, she cannot bear to talk about it. She thinks that when the sentencing procedures are over, she may try to go and see what she can do about talking about recovery.

110 The diagnosis of the professional that saw her said that she is suffering chronic post-traumatic stress disorder of a type that is typical following violent sexual assaults. There are some terms here which you may not understand, such as hyper-arousal, hyper-vigilance, flashbacks, intrusive thoughts, memories, intense fear, inability to tolerate anything that might trigger a memory, constant reliving experiences and avoidance behaviours and severe insomnia. She has also developed a major depressive disorder. She has a severe agitated depressive disturbance. She has suicidal feelings which I know both of you have had. She has apathy. She has gained weight which is symptomatic of depression and she is unable to enjoy sexual activity. She is unable to provide her son with adequate parenting.

111 The professional who looked at her said that she was basically a strong-minded and well-adapted woman prior to the assault. The professional thought that it may be with some time she will make a recovery, but at the moment she is grossly disturbed and will need considerable professional assistance to assist her. The professional says this:

Subjective matters

112 I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing each offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to that offender may offer to the Court some explanation and insight into the commission of the offences by these offenders or some reason why a more or a less sentencing outcome is appropriate.

113 I am going to first deal with O. N.

Family Background and Social Dynamics

114 O.N., presently aged eighteen years and six months was sixteen years nine months at the time of offending.

115 He has two older brothers and four younger siblings. The family migrated to Australia from Lebanon. This offender’s upbringing and background was in a home where violence was normalised. The father gambled, drank, took drugs, and physically abused his wife, even when she was pregnant. He did so when she was pregnant with O. N. and there were subsequent problems with that pregnancy. The offender’s mother noticed there were problems with O. N. after he was born. Because of the father’s gambling, he did not provide well for the family, claiming the mother’s pension would be adequate. The family lived at Wiley Park.

116 The report of Katie Seidler, a forensic psychologist who specialised in children’s matters, made this observation on the history given by the offender:

117 O. N. ’s parents separated whilst he was on parole. This separation is reported as being “bitter”. These offences of course, also occurred while the offender was on parole. The two eldest sons are currently incarcerated. The father himself was at one stage imprisoned for a stabbing offence. There is still contact between father and the offender.

118 Coming back to Ms Seidler’s report:

“Overall, O. N. described his childhood as being “shit” mainly as a result of the violence colouring all aspects of his family life”.

Education, vocational History

119 His formal schooling began in Lebanon. He found learning English easy but found studying and learning generally, more difficult. His mother reports there was physical abuse of the offender by the father during schooling in the context which made me think it was also related to doing homework.

120 O. N. attended Belmore High School. The schooling for him was difficult. He truanted. He was disruptive and has been suspended. He left Belmore High in Year 9 to go to a special school. It would seem that he left at the end of Year 9 to work in Hungry Jacks.

121 During his time in custody since his arrest, he has successfully completed a number of Year 10 subjects and is committed to studying Year 11. His post-release plans focus on a career in hospitality, principally as a chef. He gave evidence that it would be possible to do the Chef Apprentice Course at Baxter Juvenile Detention Centre. He also intended to do his Higher School Certificate at Baxter. Ultimately he says he may seek employment as a chef on a cruise ship. Whether he does so or not, the acquisition of the skills is important.

122 He has completed a hospitality course, as well as components of labouring, horticulture and music. A number of certificates have been tendered providing supporting evidence of his commitment to study whilst in custody. As best one can tell at this time, his approach and post-release plans are realistic. They bear an important part in determining a suitable custodial situation for him.

Health

123 As far as I can tell from observing him in court he presents as physically healthy. He has in the past suffered fractures through domestic violence assaults and it would seem through other assaults. Otherwise there do not appear to be any significant physical problems.

124 These are best picked up in Ms Seidler’s report.

“O. N. ’s biggest concern is with cannabis. He reported he enjoyed the use of this drug. He described it as ‘the best thing that’s going around’.

125 He claimed that he is interested in continuing his counselling. The programs that he has done whilst in counselling is a twelve week alcohol and other programs managing substance abuse and, it seems, another smart recovery. Even so, it may still be there is work to be done. As earlier mentioned he regarded cannabis as “the best thing going around”. At the levels he was smoking, 100 cones a day, impressed me as being very heavy. He was at risk of serious psychiatric or psychological damage.

Mental Health

126 There have been three significant episodes of suicidal ideation, one occurring at Reiby and two at Kariong. The last arising or associated with these court proceedings. The earlier two, are dealt with, by Ms Seidler. She took a history given by O. N. of depression starting around the age of fourteen or fifteen, which he mainly associated with being incarcerated. His depression was associated with a feeling that there was no-one there to help him and that there was no-one that cared about him. He has reported frequent contact with several psychologists.

127 The last episode was referred to in one of the Juvenile Justice documents. He has had frequent contact with several psychologists. He was referred to the school counsellor as a younger child because of his behavioural difficulties at school. He saw the psychologist from Barnardos. He has been in contact with psychologists in each of the juvenile justice centres he has been in. He does claim that he has found the psychological counselling to be of benefit because it provides him with someone to talk about his problems. He says that he is motivated to continue with the counselling.

128 It would seem that generally he is regarded as quiet and withdrawn socially. He is single at present and is yet to have a long term relationship. He has had a number of sexual encounters, all casual, what he describes as one night stands. He has had sex with a prostitute and attended strip shows on his own and with friends. He has accessed hard core pornography depicting adult heterosexual and lesbian activity. He uses pornography to learn about sex and to fuel his sexual fantasies. Ms Seidler opines

129 I should also note that my own experience so far as the law is concerned is that pornography quite frequently normalises what would otherwise be abnormal or unacceptable sexual behaviour.

130 While dealing with mental health it is important that I have regard to his aggressive and impulsive behaviour. That aggressive and impulsive behaviour is manifested particularly in violence. O. N. has a history of violence dating back to his childhood years. He was involved in physical fights from childhood and carried through to his adolescent. The history that he gave to Ms Seidler led her to believe that he accepted violence as a means of dealing with interpersonal conflict. That he seems to have adopted violence as a strategy to meet his ends or his desires, or needs, whatever they might be. She uses an example, his being placed in segregation after making threats against the staff on the basis that she was told that that was prompted by a desire to move out of the particular wing where the threats were made. It may have been that there was a sense of desperation because he had been threatened and assaulted by other inmates, but nonetheless, what he has resorted to in his panic is violence rather than some other means.

131 To conclude the overview of the mental health issues, it is worthwhile looking again at what Ms Seidler says.

132 I should at this time say that a personality profile like this is a snapshot. It is what you were on the day the snapshot was taken. You can continue to develop the snapshot or you can work on the snapshot and become a different person. You are not bound to keep the qualities that have been observed of you.

133 Ms Seidler attempted a cognitive assessment. She came to a view on the tests that she administered that O. N. intellectual skills were better than between one per cent and two per cent of his age peers. As such she said he was considered to be a very low functioning young man, probably in the domain of a mild intellectual disability. That testing was compromised by the fact that he was handcuffed. She nonetheless thought that a mild intellectual disability was consistent with his history of delayed speech development and school learning difficulties in addition to his presentation at the interview.

134 She does not appear to be aware of the offender’s complete educational program whilst in custody. His evidence was that he did Year Ten studies last year in General Maths, English, Science, History and Geography. Greg Robertson reports he successfully completed his Year Ten certificate and was moving towards Year Eleven in Maths, English, History, Business Studies, Hospitality and Religion. While I accept that he has had difficulties with his study, and might observe who would not in the environment that he was raised in, I am not prepared to accept a cognitive assessment that places him as lowly as her test results would indicate. I suspect that he, being handcuffed in the interview was counter-productive for the testing undertaken.

Criminal History

135 These offences are by far and away his most serious offending to date. While he has prior criminal history, he has no history of sexual offending. The prior conviction was for armed robbery. When sentenced for the armed robbery, an offence of being carried in a conveyance was taken into account. His record is not extensive. This second bout of serious offending is nonetheless disturbing. Given his youth, his record does not disentitle him to consideration for rehabilitation.

Custody

136 He has been in custody since his arrest on 3 April 2005. By and large he appears to have been willing to progress his rehabilitation through counselling, visits to psychologists, attending drug and alcohol programs and educational courses. He has had some positive interaction with Barnardos post release options program, both at the time of his last release and on occasions between December and January 2005, 2006. That he has exited from that program now, but he knows of its existence and is able to be re-referred to them upon his release in future. Post release plans are an important step towards guaranteeing an easier passage of reintegration into the community and therefore a significant step in rehabilitation.

137 However, his custody has not all been smooth sailing. There have been a number of breaches of discipline recorded, four of which I regard as significant. There was in August 2005, a breach of damage and destroying property. There was in November 2005, an assault on an inmate. There was in February 2006 contraband expected for an escape and possession of an offensive weapon. They are both dated very close to each other. Although there have been two subsequent breaches of discipline on his custody record, for the purposes of sentencing I do not regard them as having any significance in which case he appears to have been in no serious custody trouble since February of last year.

138 Given these proceedings have been ongoing since March, and my memory was he joined the proceedings in June of last year, he appears to have handled the stress associated with this litigation reasonably well. Also, however, he has had periods of segregation. He gave evidence that there were two periods in 2006. He said page 8, 26/11/06 at about point 5

139 Of course I suspect that that is the incident where he was abusive to staff.

140 Robertson also writes, in respect of custody,

Contrition

141 He has pleaded guilty to all charges from the outset. It would seem and Ms Salsone has so indicated, that he instructed his counsel not to negotiate or bargain on the charges. An example of this to his detriment was his willingness to accept full responsibility, not only for his offending in the joint criminal sexual assault upon the complainant, but also responsibility for his co-offender, (see counts 4 and 9).

142 Count 9 is an act of fellatio by a co-offender, but he has accepted culpability for it separately even though count 10 is an act of penile intercourse with the complainant without her consent in circumstances where that act is an act of joint penetration with the co-offender.

143 He has also given evidence of contrition.

144 Finally there is a letter that he has written to me which should be read.

145 There is other material in there but that is the portion of the letter that I wish to put on the record.

Plea

146 The plea was early entered. It represents a full acknowledgment of responsibility for offending conduct. It also demonstrates contrition. It is consistent with other efforts being made by him to advance his rehabilitation. I am satisfied he also is seeking closure on this matter. I intend to give a twenty five percent discount of the sentences I otherwise would have given in the light of pleas and the contrition demonstrated.

147 There are some positive signs but there is still a long way to go.

He has support from family members including both parents and some siblings;

He is making good progress in his education;

He is attending drug and alcohol courses;

His conduct in custody is improving, positive reports are coming out, generally he is seeking to use his custody productively;

He is beginning to develop healthy post release plans particularly to qualify as a chef;

He has prospects of accommodation and support on release;

He has access to psychological counselling and other supports for the immediate future, particularly should he remain in juvenile detention;

He wants to participate in the sex offender programmes available at Baxter;

148 There are however some negative indicators.

Three other members of his family have offended against the law to an extent where they have been placed in custody. Two of them will still be a strong influence on him, that is his brothers. The father also, is still in contact with him.

He still expresses very positive attitudes to cannabis, a drug he was heavily addicted to.

149 The psychological report identifies a number of issues that need addressing including his propensity for violence. He still has the impact of his dysfunctional upbringing to resolve and move on from. The clothing of baggage that that upbringing saddled him with, to mix my metaphors, is still with him. He has breached his last parole with very serious criminal offending To the extent that his last parole can be a predictor of future outcome, it does not bode positively.

150 To emphasise the need for caution I am annexing to his warrant Ms Sidler’s report. She has done a risk assessment with static and historic features. Her report emphasises the need for caution.

151 I turn now to I. D. and his subjective matters.

Personal Circumstances and Family Social Dynamics

152 I. D. is now eighteen years and seven months. He was sixteen years, nine months at the time of offence. He is a single youth. His parents separated as best I can determine in 2003. He is the second of four children. The family immigrated as refugees from Algeria in 1994. The offender’s father was a strict disciplinarian. I. D. gave evidence his father was physically beating him until he left in 2003. Whether to his credit or not he still has a strong sense of loyalty to his father and it seems is reluctant to fully disclose the nature and fullness of the abuse is father administered to him.

153 I. D.’s elder brother Riad tried to act as a surrogate father, although no doubt well intended, his efforts were rejected by I. D. It may be Riad’s methods of discipline were not dissimilar to the father’s. There is an episode that I am aware of Riad punching this offender in the face at a time when the offender had been consuming cannabis.

154 I. D.’s family appear to be supportive of him, with mother and sister maintaining weekly visits. They have been here on other occasions; although none of the family of either offender is here today. It appears there is also some telephone contact.

155 Once the father left, I. D. felt less need to comply with his mother’s requests. In Muslim culture if I understand correctly, the eldest male takes on a function as head of the family. It would appear the offender had difficulty accepting Riad’s role in this.

156 Bearing in mind the devaluing of the female victim of these offences, an observation made by Helena Greeks of the offender’s upbringing has a strong resonance.

157 I have sought to make a case that disparagement, disrespect and contempt for the victim was displayed by both offenders. It is hard to resist that the foundations for their contempt of the victim was gender based and learned in both cases within the family at the hands of the senior adult male.

Education Employment Skills

158 This offender also attended Belmore High School. He gained his school certificate in 2004. He is of average intelligence but was not performing to his ability. The view from the school is that he has the potential to achieve greater scholastic results.

159 He gave evidence and presented as an articulate, well spoken young man. In custody he has pursued Year 11 studies. Staff at the George Anderson Walpole School find him co-operative, relating well to his fellow students and capable of working independently and in groups. Such persons are usually well equipped in terms of their intelligence or at least adequately equipped. There is no history of behavioural concerns whilst in custody.

160 Tendered to the Court are six certificates of reports showing commitment to education, drug and alcohol and other rehabilitation initiatives during 2006 whilst in custody. I .D. has casual work experience as a labourer, carpet cleaner and a couple of jobs including storeman. It is likely his work experience is not extensive but at least he does have an understanding of the skills required for a number of jobs.

161 The offender has expressed interest in attending TAFE to complete civil engineering. Whilst at Kariong he has completed courses in hairdressing, pottery and ceramics. The wider the skill base the more employable he would become upon release.

Health

162 I. D. presents as a healthy looking young man. Nothing in the reports or the evidence suggests he is not in reasonable physical and mental health. There may be some depression, its causes are unclear. He reports that at thirteen he wanted to end his life.

163 While cognitive assessment was undertaken by Anna Saad it is unlikely it was entirely reliable. Her results indicate him to be in the bottom thirty percent in terms of intelligence, however he appears not to have finished the test “because he couldn’t be bothered”. Ms Saad’s assessment is the test is not a true reflection. His answers in evidence, his past scholastic achievement and his aspirations to study civil engineering belie the incomplete test results.

Drug and Alcohol Issues

164 I .D. seems to claim his drug abuse was peer driven. If so he is avoiding responsibility for his role in it. His peers introduced him he says to cannabis when he was fifteen. He subsequently abused heroin, ecstasy and cocaine. He was then only sixteen. He used primarily he says in the pressure of older peers. Again it would appear he is passing responsibility for his use of cannabis to others.

165 His use of drugs sidetracked him from and interfered with his school attendance. He claims to have been drug affected at the time of the offence. I have dealt with that. His cannabis use escalated to three grams daily. He used sleeping pills two times weekly to deal with the effects of withdrawing from his weekly cocaine use. He claims his substance abuse was closely linked to the lifestyle he and his peers were pursuing. Again I notice the reference to the peers and I see an absence of responsibility implicit in that.

166 He claims to have addressed his substance abuse and does not feel counselling is necessary. However

on his account of it his peers are not present and if he is blaming his peers, on his logic I cannot really tell whether he is cured or not. It is likely he is wrong.

Criminal History

167 The offender has no prior criminal history. He does however admit to criminal conduct including thieving to support his drug habit. Even so he is entitled to the benefit of being regarded as a person of prior good character with no criminal history. As such he is entitled to some leniency, although given the seriousness of his offending, that leniency will need to be more muted than it otherwise might have been.

Plea

168 The plea was entered late. As was made clear by the Crown it had significant utilitarian value in a particular respect. The victim had made clear in her victim impact statement and on the day of the trial the relief she felt when she did not have to give evidence. There are other utilitarian values in the plea including his accepting accountability for his conduct and the community’s satisfaction in seeing those who are guilty of criminal conduct being held accountable for it. There is utilitarian value in the plea, in as much as it is unlikely an appeal against convictions will be made.

169 The plea promotes confidence in the investigation of crime by police. All of these are important utilitarian facts. Late entered as it was, it cannot have as much significance as one early entered, that is entered in the Local Court. Generally the discount for a late entered plea lies somewhere between ten to fifteen percent.

170 There are two further reasons why I intend to increase that discount to one of seventeen and a half percent. Firstly I am satisfied the plea is accompanied by contrition, although contrition late encountered. Secondly, the importance of the sexual offender acknowledging his guilt is of great importance in the healing process of the victim’s sexual assault.

171 For those reasons as I say I intend to discount the sentences I otherwise would have given by seventeen and a half percent. There is evidence before me and I am prepared to accept that this offender is contrite. While his plea was late, it does not necessarily mean he did not regret his acts, particularly when he was made aware as I am no doubt he was, of the gross consequences of his acts for him in terms of future custody. Certainly he has discovered from other inmates that they regard his crime as an abhorrence. They have demonstrated that in attacks upon him, as indeed I should have mentioned there have also been attacks upon O. N. I. D. too wrote a letter which I want to make part of the sentencing proceeding.

172 His letter says this;

173 The factors in support of a positive rehabilitation prognosis include:

Good family support.

Willingness to provide accommodation and support by family upon release.

Contrition and some insight into the impact of his offence upon the victim.

A willingness to undertake the Sexual Offender’s program at Baxter.

Some positive use of time during custody on programs and advance his rehabilitation one which I have missed.

Progress which he has made whilst in custody.

The impact of his upbringing and disparaging attitude towards women ingrained in him as a consequence of that upbringing.

A past entrenched history of drug abuse. It is problematic whether this issue has been satisfactorily resolved.

A past history of poor self discipline. To his credit he has recognised that he preferred his unruly peer involved over the more sober lifestyle that his mother was urging upon him during the time of his drug taking.

174 My assessment of his rehabilitative prospects are that he is likely to progress positively in his rehabilitation, provided he maintains and builds upon the commitment to the courses whilst he is studying.

175 I include details, provided by Department of Juvenile Justice of the sex offenders course available at Baxter Juvenile Detention Centre:

Setting the Sentence Standard Non Parole Period

176 A review of the subject features for each offender establishes that each was not yet seventeen when these criminal offences were committed. I have taken youth into account when determining whether these offences qualified as a mid range of seriousness. However, the youth of the offenders is a matter that I can take into account as a reason for not imposing a standard non parole period. Given the important of rehabilitation in the sentencing of juveniles and the counter rehabilitation influence of adult prison on young men I would have relied on the youth and general immaturity of the offenders as a reason for not imposing a standard non parole period.

177 There is, however, a more powerful and stronger reason. The case law makes it clear a standard non- parole period must be taken to have been intended for a mid-range of seriousness case where the offender had been convicted after trial (see Way). In this case I shall not be imposing the standard non-parole period.

178 However, it is important, I acknowledge, the significance of the standard non-parole period. While it is confined to applying to a mid range of seriousness offences after trial, it has impacted on all offences charged under s 61JA Crimes Act 1900. That is to say the Parliament, by creating a standard non-parole period well above the non-parole periods that previously applied for offences of mid-range seriousness, has indicated that it requires penalties for s61 JA offences, to be harsher than the Court was previously imposing. The availability of the standard non-parole period has driven upwards sentences for all aggravated sexual assaults.

179 This Court will only be sentencing juvenile offenders when the offence committed is a serious indictable offence, or when pursuant to the discretion created by s 18 of the Children (Criminal Proceedings) Act, the offences is one calling for sentencing at law. In those cases the criminality associated with the offence is likely to be gravely serious. I take my guidance for sentence these young offenders from Hunt J.

180 I do not quite understand that reference, because s 6 is meant to apply in all cases of sentencing children.

“The young offender is normally entitled to the benefit of the principle, but because of his relative youth the usual consideration of general deterrence is not as important as it is when sentencing an adult of greater maturity and the consideration of rehabilitation plays a very important role...

It is of particular relevance in determining the appropriate relationship between the minimum and additional terms, and it remains an element (albeit less significant than usual) to be considered in assessing the length of the sentence to be imposed.

181 See also The Queen and Hearne (2001) 124 A Crim R 451 at 461[38] - [39] on the same point where a number of the cases are referred to.

182 Cases from overseas superior jurisdictions can often assist in clarification of principles and the basis for them. Roper v Simmons 543 U.S. 2005 1 is a decision from the US Supreme Court. It appeals to me as such a case. While it was concerned with the appropriateness of the death penalty for juvenile offenders, some principles at pp 15-16, crystallised therein are of value here:

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm "[a] lack of maturity and an under developed sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions". "Even the normal 16 year old customarily lacks the maturity of an adult." It has been noted that "adolescents are overrepresented statistically in virtually every category of reckless behaviour." In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. "[Y] outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage". This is explained in part by the prevailing circumstances that juveniles have less control, or less experience with control, over their own environment. "[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a crimonogenic setting".

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.

183 This is an offence for general deterrence is appropriate. I note what Kennedy J referred to in Roper above however it is useful to distinguish between specific deterrence which is what he is talking about for like-minded persons and general deterrence.

184 In modern Australian society there is a very extensive raft of criminal laws passed by the Federal and State Parliaments. The chief purpose of the criminal law put in place by Parliament is to deter those tempted to breach its provisions. Parliament does that by prescribing penalties for those engaged in conduct prohibited by the criminal law. For instance, in this case, the sexual assault offences carry a maximum term of life imprisonment. The robbery with breaking out carries a maximum penalty of twenty years. Consequently when a person is sentenced for a breach of the criminal law, he or she is exposed to that possible maximum penalty provided by the statute breached. Sentencing for the breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large, by keeping in mind the maximum penalties available and their deterrent purposes.

185 There is also a specific deterrence aimed at individuals like-minded to the offender who, but for such deterrence, would be willing to commit crimes similar to those for which the offender is being sentenced. Finally there is a component of deterrence to be considered personal to the offender with a view to deterring him from re-offending. It will be noted when I come to the actual sentences that I have had that fact very much in mind.

Concurrent Sentences

186 Although the robbery offence that I. D. is charged with differs significantly in its criminality from the sexual assault offences, I intend to deal with all offences concurrently. I noted that when dealing with O. N. for the tenth offence I shall be taking into account his break and enter and robbery in that sentence. Consequently, to the extent that parity of approach should be applied, the robbery and the sexual assault offences will receive concurrent sentences.

Parity

187 I have referred to the greater role O. N. played in the sexual offending. That greater role must be reflected in the sentences imposed. The issue of parity is also blurred because of the robbery offence which is the first offence with I. D.’s indictment and is equated to a Form 1 offence of break, enter and steal with robbery, and I am taking that offence into account when I sentence O. N. for the last offence in the indictment.

188 There is a proper approach to Form 1 matters which has been espoused by the Chief Justice in the Court of Criminal Appeal guideline case. The Chief Justice, speaking for that Court on the proper approach to Form 1 matters made clear the rationale for the increase in penalty. He said:

Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002

Totality

189 Because all sentences served by each offender will have the same commencement date it will be necessary when setting the sentences for his offences to take into account totality. Particularly must this be so for what I might call the headliner offence. That is in the number ten offence of I D and the number eight and eleven offence for O N.

S 19 of the Children’s (Criminal Procedure) Act

190 The penalties for the headline offences, even when discounted for the pleas of guilty will be substantial. They will continue on after each offender is over twenty-one. The offenders' better prospects for rehabilitation is to be found within the juvenile justice systems where, (a) there is a greater focus of resources on rehabilitation programs and a rehabilitation milieu, that is attitude, ambience, and (b) the other inmates are also still in their formative years and are less likely to corrupt or divert the rehabilitation plans of these two offenders than each would encounter if he went in to adult custody.

191 For these reasons I intend to direct the non-parole period of these sentences be served as juvenile offenders. I note the effect of the order will be that each person will be committed to a detention centre, see s 19(6) of the Childrens (Criminal Proceedings) Act.

Special Circumstances

192 I am proposing to find special circumstances. My basis for making the finding is the youth of each offender and applying the remarks referred to earlier by Justice Hunt. Each offender was under seventeen when these offences were committed. For I D it will be his first time in custody. For O. N. it is his second time in custody but this custody will be much longer than the previous. Parole will not be automatic because the sentences imposed on the headliner offences are longer than three years. Parole therefore will have to be earned. A Board will sit to determine whether you will be eligible for parole. That Board will look at the progress that you make whilst you are in custody. Thus I intend special circumstances to motivate each of you to work towards securing your parole and thereby avoid adult prison.

193 Finally, the order that I will make will require that the balance of term will be served in adult prison. If you do not make parole the transfer will occur and you will be moved to adult prison. This should encourage you both to attend to your rehabilitation whilst in custody. It should also be a powerful personal deterrence for you once released, because when you are, if it be the case, in breach of your parole, it is unto adult custody you will be placed.

Formal Orders

194 O. N. I convict you of each and every one of the offences on the indictment. I will read but one of them but understand this conviction applies to all eleven. I convict you of the offence that you on 6 March 2005 at Lakemba being in company with I. D. had sexual intercourse with the complainant without her consent knowing that she was not consenting and immediately before that sexual intercourse threatened to inflict actual bodily harm upon her by means of an offensive weapon, namely the handgun.

195 I am going to sentence you for the most serious offence first and then come down the scale. I take into account all of the matters of the two Form 1s that you have asked me to take into account. But for your plea of guilty I would have sentenced you to sixteen years. I reduce that by twenty-five per cent. That will make an overall sentence of twelve years’ imprisonment. I set a non-parole period of four years, two months and eighteen days to commence on 3 April 2005 when you first went into custody and to expire, if my maths be correct, on 21 June 2009, which should be the day before your twenty-first birthday.

196 I note the Crown sought a commencement date of 28 June when you were arrested. The date of your arrest depended upon matters extraneous to your custody, such as the availability of police and whether you were or were not available for them, for instance whether you were at court or some other place. In those circumstances an arrest date seems an arbitrary date upon which to fix the commencement of a sentence. In your case your arrest was within two and a half months of being in custody. Arbitrary dates are not always so kind. Arbitrary dates such as those in circumstances where an offender is in custody do not present as a good sentencing policy. It is different of course when a person is at liberty. In those circumstances the arrest marks the commencement of their custody. In your case it does not.

197 I set a balance of term to expire on 3 April 2017. That equates to a balance of term of seven years, nine months and twelve days. I have acknowledged already once that my maths is bad, but it is my intention that the overall sentence will be one of twelve years.

198 As to count 8 but for your plea of guilty I would have set a sentence of fifteen years. They will all be less than the first one. That is discounted by twenty-five per cent and becomes one overall sentence of eleven years three months. I set a non-parole period again of four years, two months and eighteen days to commence on 3 April 2005 and to expire on 21 June 2009. The balance of term commences on 26 June 2009 and expires, on my calculation, 2 July 2016.

199 On counts 2, 3 and 6, which were the penile penetration counts but for your plea of guilty I would have sentenced you to eight years. Taking into account the discount it becomes six years. I set a non-parole period of four years to date from 3 April 2005 and to expire on 2 April 2009. The balance of term if my add-ups are correct will expire on 2 April 2011.

200 On counts 1, 5, 7 and 10, they are the oral sex counts of fellatio, but for your plea of guilty I would have sentenced you to six years. When I apply the twenty-five per cent it becomes four and a half years. I set a non-parole period of three years to date from 3 April 2005 and to expire on 2 April 2008. Your balance of term is eighteen months, will expire on 2 October 2009.

201 Finally for counts 4 and 9, being in company with your co-offender when he committed the fellatio on the victim I would have sentenced you to two years for those, I have reduced that by twenty-five per cent to one and a half years. I make that a fixed term. That sentence has expired. It expired on 2 October last year.

202 That completes the sentencing against you and so that you can understand, if you work and achieve your parole you will be released the day before your twenty-first birthday. If you don’t achieve your parole you will be moved to adult prison to continue your sentence.

203 Before I deal with the next one Mr Crown, Mr Keenan it is my understanding that Juvenile Justice will keep this offender six weeks after his twenty-first birthday. The sentence that I impose is based on that assumption. If it is wrong I will regard it as an error, I do not intend at this stage to endorse the indictment for the moment and I will in the event backdate the sentence to his birthday.

204 The reason that I need the six weeks is to complete the non-parole period I desire to give him.

205 I. D. in your case I need to read out two charges and in so doing you will be convicted of three. The first charge is the robbery charge and I am going to read that out and convict you of it.

206 You are convicted of the offence that you on 6 March at Lakemba entered the dwelling house in Ernest Street and committed a serious indictable offence, namely robbery in circumstances of aggravation, in that you were in the company of O. N. and in circumstances of further aggravation, namely you were armed with an offensive weapon, namely the handgun, and you then broke out.

207 You are also convicted of both of the sexual assault offences, but I will only read one out for the formal purposes of convicting you. I convict you of the offence that you on 6 March at Lakemba in the State of New South Wales being in the company of O. N. had sexual intercourse with the complainant without her consent, knowing she was not consenting and immediately before the sexual intercourse threatened to commit actual bodily harm on her and her son by means of an offensive weapon, namely a handgun.

208 For the robbery and the breakout sentence but for your plea of guilty I would have sentenced you to a sentence of six years. When I apply the seventeen and a half per cent discount for that it becomes a sentence of four years and eleven months. I set a non-parole period 3 years to date from the day you first went into custody, 21 June 2005. That sentence will expire on 20 June 2008. I set a balance of term of one year and eleven months which will expire on 20 May 2010.

209 For the first fellatio that you did on your own I convict you. Likewise for that offence I would have sentenced you to a sentence of six years, but for your plea I have reduced that by thirteen months, making again the sentence of four years and eleven months. Again I set a non-parole period of three years to date from 21 June 2005 and to expire on 20 June 2008. I set a balance of term of one year eleven months to expire on 20 May 2010.

210 I am now going to sentence you for the joint sexual assault offence. Your involvement was expressed in terms of fellatio. But for your plea of guilty I would have sentenced you for that offence for twelve years’ imprisonment. Giving you the discount of seventeen and a half per cent for your plea that amounts to two years and one month which makes the overall sentence one of nine years and eleven months. I set a non-parole period of four years. That non-parole period will expire on 20 June 2009, coincidentally the day before your co-offender’s, but if I have got my maths correct it should be the day before your twenty-first birthday, is that right?

OFFENDER: Not correct your Honour, I turn 21 on 15 May.

HIS HONOUR: That’s right, but you will be kept in custody because of the six weeks. If they cannot do that at Juvenile Detention you are coming back and I am going to backdate the sentence. It is my intention that you will remain in juvenile custody but you will do four years if I can possibly get it. If I cannot get it my paramount concern is that you do not go to adult custody.

211 I want to make it clear that I have set the non-parole period understanding Juvenile Justice will, in the light of my order, retain in custody this offender for the additional six weeks after his twenty-first birthday. If that be not correct because I have misunderstood the situation I will backdate the sentence starting it from a date before you were in custody. I set a balance of term of five years eleven months to expire on 20 May 2015.

212 I expect the parties to notify me within seven days if I am incorrect in my assumption. Because any correction that I do must be done immediately.

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Citations

R v I .D. and O. N [2007] NSWDC 51

Cases Citing This Decision

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Cases Cited

7

Statutory Material Cited

3

R v Cuthbert [2023] NSWDC 594

R v May [2012] HCATrans 358

R -v- MSS [2005] NSWCCA 227

CITATION:	R v I .D. & O. N. [2007] NSWDC 51
HEARING DATE(S):	15/08/06; 26/10/08; 15/12/06
JUDGMENT DATE:	25 January 2007
EX TEMPORE JUDGMENT DATE:	1 June 2002
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	O.N. convicted on 11 counts. Sentenced to overall sentence of 12 years with NPP 4years 2months 18days [195]; I.D. convicted on 3 counts. Sentenced to overall sentence of 9 years 11months with NPP 4 years [210]
CATCHWORDS:	Criminal Law - juvenile offenders - home invasion - robbery in circumstances of aggravation - sexual offences in circumstances of aggravation - single mother - 5 year old son threatened - objective seriousness - sentencing according to law - standard non-parole period - mid range of seriousness - victim impact statement - subjective features - sexual offenders' course at Baxter JDC - appropriate relationship between minimum and additional terms when sentencing youthful offenders.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987; s. 6, 18, 19. Crimes Act 1900 (NSW) s61JA. Crimes (Sentencing Procedure) Act 1999 ; s32, 54A, 54B.
CASES CITED:	The Queen v Gladue [1999] 1 SCR 688 at [80]. R v Cuthbert CCA NSW (1967) 2 NSWLR 329. R v Rushby [1977] 1 NSWLR 594. R v Hayes [1984] 1 NSWLR 740. R v Gebrail, unreported, NSW CCA 18-Nov 1994 R v Hartikainen unreported NSW CCA 8 June 1993. R v May (1938) 55 WN (NSW) 29 WKR (1993) 32 NSWLR 447 R V Way (2004) 60 NSWLR 168 at [85] – [86] R v Pham R v Hearne 124 A Crim R 451 at 461 [39] Roper v Simmons 543 U.S. 2005 1 at pp15-16 Attorney General Application under s37 Crimes (Sentencing Procedure) Act 1999; No. 1 of 2002 (2004) 61 NSWLR 305
PARTIES:	Regina I .D. - a juvenile O.N. - a juvenile
FILE NUMBER(S):	06/21/0058; 06/21/0096
COUNSEL:	Crown: Mr A Clout O.N.: C. Salsone I.D.: H.F. White
SOLICITORS:	M/s J. Davis, Solicitor for Public Prosecutions. Mr T. Keenan, Legal Aid Commission