R v Jr

[2019] NSWDC 753

District Court

New South Wales

Medium Neutral Citation:	R v JR [2019] NSWDC 753
Hearing dates:	01 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment for a period of 3 years 6 months, with a non-parole period of 2 years.
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Threat to inflict actual bodily harm with offensive weapon or instrument SENTENCING — Juvenile offenders — To be dealt with “according to law”
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes (High Risk Offenders) Act 2006 Crimes (Sentence Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Hili v The Queen; Jones v The Queen [2010] HCA 45 KT v R [2008] NSWCCA 51 MS2 & Ors v R [2005] NSWCCA 397 Paul Campbell v R [2018] NSWCCA 87 R v GDP [2008] NSWCCA 51 R v SDM (2001) 51 NSWLR 503 Yardley v Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina (Crown) JR (Offender)
Representation:	Counsel: H Hudson (Solicitor for Public Prosecutions, Crown) B Hancock (Offender)
File Number(s):	2018/00313504
Publication restriction:	Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 New South Wales there is to be no publication of any material capable of identifying either the young person.

Judgment

INTRODUCTION

1. The young person has pleaded guilty to two offences, namely aggravated sexual intercourse without consent, threat to inflict actual bodily harm with a weapon contrary to s 61J(1) of the Crimes Act 1900, with a maximum penalty of 20 years and aggravated sexual intercourse without consent, threat to inflict actual bodily harm with a weapon, contrary to s 61J(1) of the Crimes Act 1900 with a maximum penalty of 20 years imprisonment. The young person has asked me to take into account one matter on a form 1 which is indecent assault against MS contrary to s 61L of the Crimes Act 1900, the maximum penalty is five years. There is also a matter on a 166 certificate, namely intimidate police officer in the execution of duty contrary to s 60(1) of the Crimes Act 1900, the maximum penalty is five years.

2. An offence of aggravated sexual intercourse without consent carries a maximum penalty of 20 years imprisonment and a standard non parole period of ten years imprisonment. Pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 the standard non parole period does not apply to an offender under the age of 18 years. The young person was arrested and has been in custody since 14 October 2018. The parties agree that the commencement date of sentence should be 14 October 2018.

THE PLEA

3. The young person pleaded guilty in the Children's Court and the matter was referred to this Court. The offences are a serious children's indictable offence under the provisions of s 3 of the Children (Criminal Proceedings) Act 1987. Pursuant to s 17 of the Children (Criminal Proceedings) Act 1987 in relation to a serious children's indictment offence the Court shall deal with the young person according to law. A Court exercising criminal jurisdiction with respect to children shall have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act: R v SDM (2001) 51 NSWLR 503; Paul Campbell v R [2018] NSWCCA 87 at 26. Pursuant to s 25D(2)(a) of the Crimes (Sentence Procedure) Act 1999 the young person is entitled to a 25% discount on his sentence.

AGGRAVATING FACTORS

Section 21A(2)(j).

4. The young person committed these offences while on bail for the following matters, H131969901, charges later dismissed, H68656340, three charges of demand money with menaces. The young person was armed with a knife which is a circumstance of aggravation within the offence itself (s 61J(2)(b)) and should not be double counted.

THE FACTS

5. At tab 5 of exhibit 1 there is an agreed facts document. I do not intend to repeat them verbatim. The salient points are these. The young person was 16 years old at the time of the offences. The victim works in the records department of Westmead Hospital. At 3.30pm on Saturday, 13 October 2018 the victim started his shift at Westmead Hospital. At around 12am on 14 October 2018 the victim finished his shift at the hospital. Following this he walked to Westmead Train Station. At about 12.45am the victim got on a train towards Mount Druitt. Shortly before 1.05am the victim arrived at Mount Druitt Train Station. The victim exited the train and walked through the bus interchange towards the Woolworths car park. At 1.09am the young person was captured on CCTV footage at the same bus interchange wearing a black hooded jumper. The young person had the hood of the jumper over his head.

6. The victim walked from the bus interchange to the Woolworths car park where he began checking the skip bins for any leftover food. At this point he was approached by the young person who was armed with a hunting style knife which had a 20 centimetre blade. He said to the victim, "Suck my dick or I'll stab you." The victim immediately ran away from the young person towards the entrance of Woolworths. At 1.15am CCTV footage captured the victim running on the right hand side of the trolley bay towards Woolworths with the young person in pursuit on the left hand side of the trolley bay. The young person had the knife in his right hand as he ran after the victim. After some running the young person caught up to the victim. The victim stopped running in fear for his safety. The young person had the knife out in front of him. He then told the victim to walk behind a large green electricity transformer box in the car park which was about 10 metres away from where they were standing. The victim immediately complied with the young person's demand.

7. During the next ten minutes the victim was forced against his will to participate in a number of sexual acts with the young person. Once they were behind the transformer box the young person told the victim to pull down his pants and underwear. The victim did so. The young person subsequently crouched down, put the victim's penis in his mouth and performed oral sex on him. The young person did this while he still had the knife in his right hand.

Sequence 1, aggravated sexual intercourse without consent, threat to inflict actual bodily harm with a weapon.

8. After a short time the young person stopped performing oral sex on the victim. He stood up, pulled down his own pants and underwear and then told the victim to get on his knees and perform oral sex on him. The victim subsequently got on his knees and performed oral sex on the young person. While this was occurring the young person put the knife down on the ground behind him. Following this, the young person told the victim that he wanted to be anally penetrated. The young person turned around and the victim was told to put his penis inside the young person's anus. The victim tried to do so however he was unsuccessful because he could not obtain an erection.

Sequence 3, aggravated sexual intercourse without consent, threat to inflict actual bodily harm with a weapon.

9. The young person subsequently asked the victim to turn around. The victim did so. The young person then positioned himself behind the victim and put his erect penis into the victim's anus. The young person subsequently had penile-anal intercourse for a period of time. The young person was not wearing a condom.

Sequence 10, indecent assault (form 1).

10. At some point during the incident the young person told the victim to lick his anus. The young person subsequently bent over and the victim licked his anus for a period of time. Following this the young person licked the anus of the victim. During the incident the young person also penetrated the victim's anus with his finger. Following this he asked the victim to do the same to him. The victim complied and while he had his finger in the young person's anus, the young person masturbated himself.

11. At the end of the incident the young person told the victim to get back on his knees and suck his penis. The victim got on his knees and began performing oral sex again. The young person held onto the victim's head and pushed his penis deep into the victim's mouth which the victim resisted. The victim continued to perform oral sex on the young person until the young person ejaculated into his mouth. At this point the young person told the victim he could put his pants back on. The young person gave the victim a brief hug, put some gold coins in his pocket, picked up his knife from the ground and told the victim not to report the matter to police. He then walked off towards the cinemas at Westfield Mount Druitt.

12. At 1.43am the victim called police emergency. The victim told the operator that he had been threatened with a knife and "had to do some sexual things for a man." The victim provided a description of the young person. At a later time police were travelling in an unmarked vehicle and they saw the young person by the side of the road trying to hail down a cab. They pulled up a short distance from the young person. The police said:

"Hey mate, can you stop there buddy? I'm Detective Salvador, this is Detective Tillett from Mount Druitt Police Station. Mate the reason you've been stopped is that you match the description of someone that was involved in a sexual assault at Westfield."

13. The young person replied, "Fuck you, fuck off, I didn't touch him. I'm not gay." Detective Salvador saw a large knife in the front pouch of the young person's hooded jumper. The young person was placed in handcuffs, cautioned and arrested. He was put in the police car. On the drive to the Riverstone Police Station the young person became aggressive and made a number of threats towards Detective Salvador and Detective Tillett including:

"I'm gunna fucking kill you, I'm going to fucking stab you until I watch you die. Did you find all the knives? Are you sure? I'm going to get out of gaol track you and your kids and family down and kill them all. Did you hear me? I'm going to track you and your kids down and stab and kill them."

OBJECTIVE SERIOUSNESS

14. In assessing the objective seriousness of the offending I take into account the following factors in relation to each offence individually;

1. the form of conduct or intercourse (not to be regarded as the sole consideration),

2. the degree of violence,

3. the physical hurt inflicted,

4. any circumstances of humiliation,

5. the duration of the offence,

6. the age difference between the offender and the victim,

7. the inequality of the relationship (if any existed) between the offender and the victim.

CROWN SUBMISSIONS

Aggravated sexual intercourse without consent.

15. The Crown submits that while the exact duration of the oral intercourse is not clear, the duration of sexual assault incident as a whole was ten minutes. The Crown submits that this is a significant period of time in the circumstances. The Crown submits that the objective seriousness of this offence is increased significantly by the fact that the young person ejaculated into the victim's mouth. Not only is this a humiliating and degrading act, but it also exposed the victim to the risk of disease. Furthermore, it is noted that the young person had his penis inside the victim's anus shortly before forcing the victim to perform oral sex on him for the second time. The Crown submits that the victim only submitted to the young person's demands through fear of being stabbed with the young person's hunting knife.

16. It was further submitted that in relation to the indecent assault offence which is on a form 1, the indecent act involved the young person forcing the victim to lick his anus, another particularly humiliating and degrading act. The Crown submits that this offence should be taken into account with a view to increasing the sentence for sequence 1. It was the Crown's submission that sequence 1 is an offence above the midrange of objective seriousness.

Aggravated sexual intercourse without consent (sequence 1)

17. The Crown submits that the form of sexual intercourse for sequence 3 was anal intercourse and the young person penetrated the victim's anus with his penis. The Crown submits that this is the most serious form of intercourse that can be committed against a male victim. The Crown further submits that while the exact duration of the anal intercourse is not clear, the ten minute duration of the incident as a whole was significant in the circumstance. The Crown submits that the objective seriousness of this offence is increased given the young person did not use a condom during the intercourse, potentially exposing the victim to sexually transmitted disease. The Crown submits that this is an offence above the midrange of objective seriousness.

OFFENDER'S SUBMISSIONS

18. It was submitted on behalf of the offender that the offences were part of an ongoing course of criminal conduct against the one victim at a single location. The offences conclude after a period of some minutes. The verbal threat of violence was offered at one point only, although the offender then chased the victim and he continued to possess and display the knife which did not physically come into contact with the victim. The offences were not accompanied by any additional gratuitous cruelty or humiliation beyond that comprising the offences themselves. The offences are of similar objective seriousness at or below the midrange.

CONSIDERATION

19. The offending was frightening and bizarre. It was a random attack upon a stranger who was making his way home after work. Although it was for a short period of time but no doubt felt like forever, the hunting knife was ever present. The offender ejaculated into the mouth of the victim. It involved degradation and humiliation of the victim. It exposed the victim to potentially transmitted disease. The offender penetrated the victim's anus with his penis. It was a very serious example of offending. It was forceful, degrading and humiliating. Without resort to a condom it exposed the victim to potentially transmitted disease. The offending was objectively very serious. I assess the objective seriousness at the midrange for both offences. I assess the act of anal intercourse as more serious than fellatio and this will be reflected in the indicative sentences.

SECTION 166 OFFENCE - INTIMIDATE POLICE OFFICER

20. There were multiple threats by the young person to kill the police officer's children. Police should not have to be subjected to this behaviour. It is unwarranted and serious.

SUBJECTIVE CIRCUMSTANCES

21. The following documents were tendered on behalf of the offender.

1. Statement of CR dated 30 September 2019,

2. Statement of the offender dated 19 September 2019,

3. Report of Juvenile Justice dated 12 April 2019.

22. I have before me a report from Juvenile Justice prepared for a previous court appearance dated 12 April 2019 and it must be read in that light. It informs me of the following:

"Custodial Behaviour.

JR is currently serving a period of remand at the Cobham Juvenile Justice Centre in Werrington entering custody on 14 October 2018. JR has progressed to the stage 2 incentive scheme and he has received five misbehaviour reports for unauthorised telephone calls and fighting, bad language, disobedience, subversive behaviour and harassment whilst in custody. Through his engagement with both custodial and education staff he has demonstrated that he is accepting of the support available to him."

23. JR was born in Penrith (that is incorrect in light of his mother's evidence that he was born in Blacktown). JR is the youngest of five children. JR reported his relationship with his older siblings is positive and that they have all been supportive of him throughout his younger years. The young person's mother reported that both she and the young person's father set out to establish a disciplined well structured yet nurturing home environment for her children. They continued to provide JR with appropriately supported accommodation, supervision and support.

24. Prior to entering custody the young person's mother reports his attitude and behaviour towards following directions from his parents has been challenging, often with him refusing to follow their instructions and leaving home and not returning for days on end. He now understands that they were trying to guide him in the right direction to keep him out of trouble. His mother reported they are willing to have the young person return to reside with her and her partner and is supportive of JR engaging with any services recommended by either Juvenile Justice or the court to assist him.

EMPLOYMENT AND/OR EDUCATION

25. The young person was previously enrolled in year 10 prior to entering into custody. He briefly reported working at KFC in XXXXX but due to lack of attending allocated shifts without providing any reasonable explanation had his employment terminated by KFC. JR reported at the time that his main focus was to associate with peers instead of attending work. He engaged with Putland Education and Training Unit while in custody and he has been completing his year 11 equivalent lifestyle skills. Reports from education staff confirm that his behaviour in class has mostly been positive and that he tends to complete all relevant tasks within the required timeframe.

PEER RELATIONS

26. JR's offending behaviour appears to occur while in company of members of his negative peer group. He acknowledges that his current peer group prior to entering custody frequently engaged in drug and alcohol use and presented with having antisocial values that has continued to place him at a higher risk of further offending. JR stated that when released from custody he wants to change his peer group to reduce the risk of reoffending. He also stated that a shared interest amongst his negative peer group was the use of recreational drugs and alcohol consumption which he reports he no longer wishes to be involved in.

SUBSTANCE ABUSE

27. JR reported to have commenced using substances including alcohol and cannabis from the age of 15. JR is acutely aware that his drug and alcohol use has been a significant contributing factor in his offending behaviour and that addressing his use is vital to his success in living a prosocial life.

28. I have heard evidence from the mother of the young person. She confirmed the contents of a statement signed by her on 30 September 2019. It informs me of the following. JR's father is strict and JR had a good relationship with his father before he started hanging out with a bad crowd. When he was arrested she went to the police station. He seemed very intoxicated. She could smell alcohol on him and she had the feeling that he was on something else also because of the way he was. He speaks on the phone every day to his family from his juvenile detention. When he was at Cobham she visited him weekly. When he was at Baxter they spoke to him via AVL from Juvenile Justice in Penrith.

"About the offences JR said to me that he wished it did not happen, he regrets what he did. He mentioned he was on drugs, MDMA and cocaine. He told me it was the first time he had taken those kinds of drugs. When he is released he can come home, he would live with me, his father, his sister who is 19. Both his father and his sister know why JR is in detention. If JR comes home when he is released he has to live by our rules. We have talked a lot about alcohol and other drugs since the offences. He stays away from that stuff or he goes to gaol. He has agreed with everything and he wants to stay away from it. JR knows that if he acts up when he gets out he can't stay with us. We've told him that and that he will probably go to gaol.

He wants to do the right thing. JR has been talking about getting work in the same industry as his dad in roofing or construction. During his time in detention he has been going to school. During the riots at Baxter he was very scared; he thought the boys were going to kill him. They came into his room, he was beat up a little bit. He was asked by officers to make a statement. He didn't make a statement as he didn't want to make it any harder for himself. He said he was hit in the head with a pole. He has said that he is really disgusted with himself."

29. In evidence she told me that her son is "very remorseful, regretful, wished he had not done it and listened to his parents." She went on to say that, "He feels very bad for the victim and he is ashamed of himself."

30. The young person has provided a letter to the Court dated 19 September 2019. He says that he is sorry for his actions and he regrets doing what he did. He has worked to move forward to make sure that he does not behave or treat people that way again. He has used some of his time in custody to reflect upon his choices, actions and the negative impact that they have had on the victim, his family, that is his own family, and his friends.

"Working with my caseworker and psychologist has also given me the chance to look at my mental health, address some issues from past and plan a happier and better future. Before I could plan for the future and move forward I had to accept responsibility for my actions, look at whom they affected and then put myself in their position. This was a very difficult thing to do but I realise just how wrong my actions were. By accepting responsibility for my actions I've been able to look forward and start planning a future for myself starting with surrounding myself with positive people, gaining employment and giving back to the community when I get the opportunity."

REMORSE/PROSPECTS OF REHABILITATION

31. I accept that the young person has expressed genuine remorse and is contrite for his actions. Although he committed these offences while in a stable and caring environment, he has now had almost a year in custody to reflect upon his actions. He has a stable and caring environment to return to with hopefully a changed attitude as said in his letter to the Court.

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

"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced.

To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations."

33. I have formed the view that he has some prospects of rehabilitation and his youth and the need to induce or assist the offender to avoid offending in the future. Successful rehabilitation leads to the protection of the community, it enhances community safety.

CONSIDERATION

34. The offender was 16 years and 3 months of age at the time of the offending. He was a child as defined in s 3(1) of the Children (Criminal Proceedings) Act 1987. The sentencing regime applying to children is very different to that applying to adults. At its core that regime focuses on desirability of fostering the rehabilitation of children: Paul Campbell v R [2018] NSWCCA 87 at [23].

35. In MS2 & Ors v R [2005] NSWCCA 397 Adams J identified two reasons why youthfulness of an offender is considered to be a significant factor in sentencing. The first is the substantial public interest in rehabilitation of young offenders: [15]. The second is that immaturity is relevant to culpability or criminality because children do not have adult value judgments, adult experience, and adult appreciation of consequences: [16]. When children are to be sentenced, greater weight is to be given to rehabilitation and less weight to deterrence: R v GDP [2008] NSWCCA 51. However, the closer a child is to adulthood and the more serious the offending the more likely that deterrence as opposed to rehabilitation will be significant factors.

36. The principles relevant to the sentencing of a juvenile offender were summarised by McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [22]-[26]. These principles could be summarised as follows;

1. Principles of general deterrence and retribution are, in most cases, of less significance than they would be for sentencing an adult for the same offence. Considerable emphasis is to be placed on the need to provide an opportunity for rehabilitation, [22].

2. Where immaturity of the offender is a significant factor in the commission of the offence, the criminality will be less than if the same offence was committed by an adult, [23].

3. Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct, [24].

4. The emphasis given to rehabilitation rather than general deterrence and retribution may be moderated when the young person has conducted himself in the way an adult might conduct themselves and he has committed a crime of violence or a crime of considerable gravity, [25].

5. The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, [26].

37. In KT v R it was said at [25]:

"In determining whether a young offender has engaged in adult behaviour the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society."

38. The conduct of the young person does not exhibit planning or premeditation. It appears to be random and as I previously said, bizarre. The young person does not have an extensive criminal history. On the contrary, he has a limited criminal history. In relation to the nature and circumstances of the offence, non consensual intercourse is not the sole domain of adults, nor is arming oneself with a weapon. However I do intend to moderate the sentencing principle of rehabilitation given the objective gravity of the sexual offending.

SPECIAL CIRCUMSTANCES

39. In the course of oral submissions the Crown conceded quite properly that special circumstances should be found. I find special circumstances for the following reasons. One, the offender is a child who has not previously served a sentence of imprisonment. Two, the offender and the community would benefit if he was supervised and supported to maintain abstinence from alcohol and illicit drugs to improve his lifestyle. Three, the offender and the community would benefit if he was supervised and supported to maintain appropriate programs in the community to address his offending behaviour.

STATISTICS

40. I have been provided with the JIRS statistics. Since 24 September 2018 only two cases have been dealt with. The non parole period in both cases was 24 months. In the JIRS statistics from January 2008 to 23 September 2018, 15 cases were dealt with. The most occurring non parole period was from 12 months to 36 months. I find that the statistics due to the small sample size are of limited value if at all. I have taken into account what was said by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45 at [46]-[55].

ACCUMULATION

41. A sentence imposed for each offence must reflect the criminality of that offence and the overall sentence must reflect the totality of the criminality involved. Although there is a temporal connection between the two offences, they are separate acts and therefore it is necessary for there to be some degree of accumulation keeping in mind the principles of proportionality and totality. I accept the Crown's submission that the sentence I impose on the 166 matter will be subsumed by the sentence of imprisonment imposed by the 61J offence.

SENTENCE

42. I impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. The indicative sentences are as follows:

43. Sequence 1, aggravated sexual intercourse without consent (fellatio), two years and six months. But for the 25% discount the sentence would have been three years and four months.

44. Sequence 3, aggravated sexual intercourse without consent (anal intercourse), three years. But for the 25% discount the sentence would have been one of four years.

45. The s 166 matter, intimidate police officer, three months. But for the 25% discount the sentence would have been four months.

46. The aggregate sentence is three years and six months with a non parole period of two years.

47. The commencement date of the sentence is 14 October 2018. The head sentence will expire on 13 April 2022.

48. The non parole period will expire on 13 October 2020 and the offender will be eligible for parole.

49. Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 I direct that the whole of the term of the sentence of imprisonment be served as a juvenile offender.

50. The Crimes (High Risk Offenders) Act 2006 does not apply because the offender is not 18 years of age.

**********

Decision last updated: 16 December 2019