R v KL

[2020] NSWDC 409

District Court

New South Wales

Medium Neutral Citation:

R v KL [2020] NSWDC 409

Hearing dates:

9 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

For orders see paragraph [85].

Catchwords:

SENTENCING — child offender – victim 5 year old biological brother of the offender – pressured to commit offence by older ‘boyfriend’ – offender sent videos of her performing fellatio on her brother to her ‘boyfriend’ – profound disadvantage – history of sexual assault, physical abuse, social isolation and mental health issues

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Children (Criminal Proceedings) Act 1987

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1)

Campbell v R [2018] NSWCCA 87

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Jonson v R [2016] NSWCCA 286

KT v R (2008) 182 A Crim R 571

Markarian v The Queen [2005] HCA 25

MinehanvR (2010) 201 A Crim R 243

MS2 v The Queen (2005) 158 A Crim R 93

Muldrock vThe Queen (2011) 244 CLR 120

Perkins v R [2018] NSWCCA 62

R v Adamson (2002) 132 A Crim R 511

R v AGR (unreported 24/7/98, NSWCCA)

R v C (unreported 12/10/89, NSWCCA)

R v E (a child) (1993) 66 A Crim R 14

R v GDP (1991) 53 A Crim R 112

RvHearne (2001) 124 A Crim R 451

R v MAK and MSK (2006) 167 A Crim R 159

R v Millwood [2012] NSWCCA 2

RvSDM (2001) 51 NSWLR 530

Texts Cited:

Bugmy Bar Book; Public Defenders Website: Cowdery AO QC, J Hunter and R McMahon, “Sentencing and disadvantage: The Use of Research to Inform the Court” (2020) 32(5) JOB 43.

Category:

Sentence

Parties:

Regina (Crown)
KL (Defendant)

Representation:

Ms Macdonald (Crown)
Ms Jardim (Defendant)

File Number(s):

2019/43335

Publication restriction:

Non publication order on the name of the complainant or any information that may identify him. Suppression order on the name of the offender

Judgment

1. KL, born in September 2004, is before the court for sentence for two counts of sexual intercourse with a child under 10 years of age contrary to s 66A(1) of the Crimes Act 1900 for which the maximum penalty is life imprisonment, and two counts of disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900 for which the maximum penalty is 10 years imprisonment. All of the offending took place when KL was a child (14 years, 3 months of age) within the meaning of the Children (Criminal Proceedings) Act 1987 (the Children’s Act). There is no standard non-parole period for these offences because of the effect of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), as the offending took place when the offender was not yet 18 years of age.

2. There are also matters on two Form 1s which the offender asks me to take into account when sentencing her, which are two charges of produce child abuse material contrary to s91H(2) of the Crimes Act 1900.

3. The offender is now aged 15 years, 9 months.

4. It was agreed between the parties that the offender must be sentenced according to law within the meaning of the Children’s Act for the section 66A(1) offences as they are serious children’s indictable offences. As to the section 91H(2) offences, I have determined to deal with them according to law. They are indictable offences, serious in nature and arise out of the same facts and circumstances as the serious children’s indictable offences: section 18(1A) of the Children’s Act. The parties agree that it is appropriate for me to deal with all matters according to law.

5. Section 6 of the Children’s Act has application in the present case, and requires the court to take into account the following:

1. That children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate in the processes that lead to decisions that affect them;

2. That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance;

3. That it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption;

4. That it is desirable, wherever possible, to allow a child to reside in his or her own home;

5. That the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind;

6. That it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties;

7. That it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions; and

8. That, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

6. I was greatly assisted by the thoughtful and empathetic submissions of Ms Jardim on behalf of the offender and Ms Macdonald on behalf of the Crown. Issues between them were narrow and overlapped to a large extent.

7. The Agreed Facts, which are part of exhibit 1, are as follows:-

1. The young person in this matter is KL and the victim is FL. The victim is the 5-year-old biological brother of the then 14-year-old young person. At the time of the offences both the young person and the victim were residing together with their mother, grandfather and uncle.

2. In about January 2019 the young person was involved in an online relationship with a 16-year-old male AB. The pair engaged in regular online conversations including some of a sexual nature. During those conversations, AB continually requested that the young person send him photos of her genitals and videos of her engaging in sexual acts.

3. On 29 January 2019, during a Facebook conversation between AB and the young person, AB asked the young person, “did you like FL’s dick?”, to which the young person replied, “my little brother?” and then later, “uhh, to be honest … Yes and I may have sucked his dick yesterday” and “geez, I’m incest.” AB repeatedly asked for further details and requested that the young person perform the act whilst videoing it and to send it to him so that he could photoshop “my body”. The young person told AB that she sucked FL’s penis for maybe 30 minutes in his bedroom. She also stated, “but, hey, I was craving for a dick so I did it.” Further conversation took place when AB again requested that she video the act and send it to him.

4. The following day, following repeated requests from AB, the young person recorded a video on her mobile phone of herself naked performing oral sex on FL. The video lasts for 5 seconds and shows the young person positioned between the victim’s legs, placing FL’s penis in her mouth and performing fellatio. The young person then sent this video to AB via Facebook messenger.

5. After further requests by AB to perform the act again, as the first video was apparently unclear, that night KL recorded a video on her mobile phone of herself performing oral sex on FL. This video lasts for 18 seconds and shows the victim laying down with his penis exposed before the young person places FL’s penis into her mouth and performs fellatio. The young person sent this video to AB via Facebook messenger.

6. KL immediately told her mother what she had done to FL, who in turn took steps to make sure that FL and KL were not left alone after the incident.

7. Shortly after this, AB forwarded one of these videos to his cousin who brought the video to the attention of her mother, who then contacted KL’s and FL’s mother to advise her of what she had just seen.

8. On 1 February 2019, South West Metro Child Abuse Unit received a report in relation to the incident and on the following day FL was electronically interviewed by police. He made no disclosure of the sexual acts but confirmed being naked in the video. The victim suffers from a mild speech delay and possible hearing impairments and found it difficult to communicate with police in the interview.

9. Police then obtained a statement from KL’s mother, who indicated that KL had made admissions to her about the sexual acts she had preformed on her brother on the day they had occurred. She stated that the young person said, “Mum, I did something really bad … Mum I took my brother’s dick and put it in my mouth.” The young person had told her mother that she had recorded this activity and had sent it to AB but that she had since deleted the video from her phone.

10. The young person was arrested and charged on 8 February 2019. She declined to participate in an electronically recorded interview with police.

Evidence

8. Before me are three exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A notice of committal;

2. The charge certificate;

3. The Statement of Facts and an Addendum;

4. Two Form 1s; and

5. The offender’s criminal history.

9. Exhibit 2 is a bundle of documents tendered on behalf of the offender, which includes:

1. A forensic psychologist report of Professor Susan Hayes, dated 17 September 2019;

2. A psychological assessment report of Ms Katie Martens, dated 16 April 2019;

3. A psychological assessment report of Ms Anne Mills, dated 14 August 2019;

4. A letter from the Department of Communities and Justice (DCJ), dated 3 July 2020; and

5. An affidavit of Maria Ivanovski, dated 7 July 2020.

10. Exhibit 3 is a Confidential Background Report (CBR) from Communities and Justice.

11. I will now summarise some of the documents which have been placed before me, and highlight certain matters of importance.

Exhibit 1

12. The offender has a very limited criminal history. In 2018, just prior to the offending, she was charged with two counts of stalk/ intimidate intend fear physical harm (domestic) and received a section 33 bond in the Children’s Court. The circumstances of this offending are recounted in the report of Ms Martens, to which see below.

Exhibit 2

13. Professor Hayes interviewed the offender for one and a half hours. She reported that the offender cooperated well with the assessment. However, the offender was a poor historian for dates and times, she was vague about periods of her life and she lost concentration toward the end of the assessment. The offender presented as rational and lucid and did not appear to be anxious during the assessment.

14. The offender usually lives with her uncle, grandfather, mother and half-brother. However, since the offending she and her mother have moved out of the family home. Her father lives in the Philippines and she has not been in contact with him since she was approximately seven years of age. The offender has changed schools several times and has a history of being bullied. The offender told Professor Hayes that she is “good at school” and has some friends, but that she does not see them outside of school time.

15. Professor Hayes reported that the offender’s mother told her that KL is lazy, that she has been unable to keep up with other children since she was in Kindergarten, and that she has a speech delay, for which the mother has not been able to afford therapy. The offender’s mother was unaware of how her daughter performed in school. She stated that the offender’s behaviour is “up and down”, that she is sometimes happy and that she is sometimes uncooperative and stubborn. The offender’s mother reported that she, herself, is not coping.

16. The offender takes Lovan for Depression and Anxiety, but stated that it has had no effect. She does not use illicit substances or alcohol. The offender reported a history of depression and anxiety in the family. She said that she is sad much of time and tries to make her mother happy. She does not have sleeping or appetite difficulties but sometimes finds it difficult to get out of bed in the morning.

17. The offender attends regular counselling at Park House. According to the offender’s mother, her daughter does not understand the seriousness of the current situation. The offender’s mother told Professor Hayes that at the time of the offending, it had never occurred to her that KL might engage in this type of behaviour.

18. The offender had been subjected to significant childhood trauma, but she did not wish to speak about it. KL was sexually abused between the ages of 6 – 8 years by a teenage male cousin. At a young age, she was subjected to violence by her two uncles who resided with her and her family when they chased her with knives. In Professor Hayes’s opinion, the offender has Level 1 Autism Spectrum Disorder (ASD), Anxiety and possible Post Traumatic Stress Disorder (PTSD). Professor Hayes reported that the offender is functioning in the range of low average intellectual ability.

19. Professor Hayes agreed with Ms Martens (see below) that it was difficult to come to a concluded view about KL’s risk of reoffending. Her history of being subject to child sexual abuse, witnessing and being the victim of physical violence, observing dysfunctional family relationships (including the ongoing tension with her mother), are all factors that, in her opinion, are associated with reoffending. However none of them, in her view, are definitively predictive. The offender had received little support or ongoing therapeutic intervention, such as sexual counselling, ASD therapeutic intervention, or anger management programs. Professor Hayes expressed the opinion that if these interventions were put in place, the offender’s risk to the lives and sexual safety of children, particularly her brother, would be markedly reduced and she would likely gain insight into her behaviour.

20. Ms Martens interviewed the offender for over an hour to assess the risk of her sexually harming her brother. Ms Martens reported that her assessment of the offender was somewhat limited by the offender’s poor focus and poor recollection of events. The offender had experienced several traumatic childhood events, including sexual abuse and physical violence. She was sexually abused by a cousin at about age eight and she stated that at a similar age she viewed homemade pornographic videos depicting sexual acts between her grandfather and his female partner.

21. Ms Martens was of the opinion that the offender’s family was dysfunctional. The offender had no real contact with her father and had a problematic relationship with her mother. The offender’s mother had recently suffered two strokes, which have impacted her physical and mental health. The mother also made numerous negative comments about KL, and presented with little insight into the offender’s reported harmful behaviour and the associated potential risks. KL first came to the attention of Family and Community Services (FACS) in late 2018 after she threatened her five-year-old brother with a knife and for which she was charged and sentenced. There was then an AVO prohibiting her from residing with her brother.

22. The offender reported positive experiences of schooling and forming some good relationships with her peers. However, she expressed sadness because she is not permitted to be alone in the playground due to restrictions placed on her contact with other children. There were indications that she may be intellectually delayed, although Ms Martens reported that this was unclear. The offender is, however, of low cognitive ability which has impacted on her academic progress. Her school reported that it often has to provide the offender with food, and that she arrives late, appearing dishevelled and unfocused. Ms Martens reported that the offender presented as vulnerable to peer influence, as she lacked social skills and an awareness of appropriate boundaries.

23. The offender was prescribed the psychotropic medication Fluoxetine for Anxiety by a psychiatrist. She has received diagnoses of Anxiety, Obsessive Compulsive Disorder, Agoraphobia, PTSD and ASD. KL said that she has had suicidal ideations a number of times and once attempted suicide because she “kept thinking to myself that mum was angry at me.” Ms Martens considered that it was unsurprising that the offender had experienced dysregulation in her emotions, given her past traumatic experiences. She stated that the offender’s possible ASD and her reported low intellect would have likely compounded her traumatic experiences and emotional difficulties.

24. Ms Martens observed that the offender’s exposure to sexual activity thus far had consisted of sexual abuse and pornography, and that she has not yet had any healthy sexual relationships on which to base her experience. The offender denied any sexual interest in children, citing a sexual attraction to male peers. She had little insight into the concept of consent.

25. Ms Martens believed that the offender had the following factors that increase risk: her own experience of sexual victimisation, trauma associated with physical violence, and her dysfunctional family and problematic relationship with her mother. Furthermore, KL presented with mental health concerns, including anger, anxiety, and poor distress tolerance characterised by suicidality. Compounding these concerns is the offender’s reported hypersexuality and lack of education regarding healthy sexual behaviour. Ms Martens believes that it was possible that the offender was cajoled into the offending because of her limited cognitive and interpersonal skills. In her opinion, the offending is best explained by a complex interplay between developmental factors, mental health concerns, social skills deficits, vulnerability to influence, complicated family dynamics, sexual urges and lack of empathetic reflection. She believes that the offender would benefit from focused intervention to address her risk factors and to support the family to safely reunify. Treatment should focus on developing KL’s social skills, so that she can form healthy and appropriate peer relationships, manage her mental health concerns and ensure that she understands appropriate sexual behaviour.

26. The offender was referred to Ms Mills due to her difficulty with social interactions at school and her inability to safely navigate social media and text messaging, which led to her being groomed to commit the offences. Ms Mills confirms that the offender has a history of sexual abuse which occurred between the ages of six and eight, perpetrated by her male cousin who was also a minor at the time. She was treated violently by her two uncles who resided with her and her family, and who frequently threatened and chased her with knives. Her family has a history of mental illness. Her mother and grandfather suffer from Depression and her grandmother had a personality and mood disorder. The offender has experienced significant social problems at school. She stated that she was tricked by her peers on a daily basis into doing and saying inappropriate things. The offender reported having no real friends. She performs within the lowest percentile of students in her grade and is functioning at a grade five level in all areas of her learning.

27. The offender spoke to Ms Mills about the circumstances that led to the incident with her brother. She was very embarrassed and remorseful. She reported that she had not thought that it would do any harm to her brother. Ms Mills believed that the offender was very gullible and easily tricked into doing things that most children of her age and stage of development would not do. In her opinion, this is a reflection of her poor social reasoning ability, rather than intentional bad behaviour. Ms Mills is of the view that the offender has a borderline intellectual impairment which reduces her ability to solve problems. She diagnosed the offender with level 2 ASD and PTSD (acute anxiety).

28. DCJ has worked with the offender since December 2018. She was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) by Park House, where she has been treated since early 2019. The offender sees a social worker approximately once a week for counselling, and a child and adolescent psychiatrist about once a month for medication reviews.

13. DCJ have been supporting the offender’s family in their living arrangements. The offender’s brother currently lives with his grandfather and the offender lives with her mother. Since recent amendments to the AVO, DCJ have been conducting and supervising contact between the offender and her brother and have had no concerns. The offender has been appropriate with her brother and often talks about how she misses him and wishes things would go back to “normal”. DCJ are supportive of transitioning the family to unsupervised contact if AVO conditions permit. DCJ’s objective is to reunify the family in a safe environment.

Exhibit 3

30. Further material from Communities & Justice (Youth Justice), based on interviews and documents with all stakeholders in the offender’s care confirms all the factual material set out above. If the offender is sentenced to a community based order, Youth Justice would liaise with all stakeholders including FACS, the Department of Education, the local health service and the offender’s medical and para-medical practitioners to ensure that the offender and her family receive support throughout the currency of the sentence. They will work with the offender (and her family) so that she develops, inter alia, relationship skills, a prosocial peer group and appropriate leisure activities. My understanding is that Youth Justice will act in a case management role.

Objective seriousness

First Incident – Sexual intercourse with child under 10 years

31. This offence involves the young person performing fellatio on her 5 year old brother for at least 5 seconds. It took place in the young person’s bedroom at 6.30pm when the young person and victim’s mother and grandfather were home. It took place after repeated requests via Facebook Messenger by AB. The offence was AB’s idea and committed by the young person to please AB, after his coaching and encouragement. He said things like “I love you, you can do it. I believe in you”. KL was initially reluctant and tried to avoid committing the act, but AB continued to pressure her and he told KL that he would not talk to her anymore if she failed to do as he instructed. The Crown submits that the pressure applied by AB on KL to engage in this act is a matter I am to consider when determining the objective seriousness of the offending.

32. Ms Jardim submits that whilst it is apparent that the young person was highly sexualised at the time, given the nature of the relationship and the contents of the messages (found in the Addendum to exhibit 1) and the young person’s limited cognitive functioning and social skills, that these offences were committed as a direct result of the repeated and specific requests by AB and not for her own sexual gratification. The Crown agrees that that this offence did not occur as a result of any independent thought by the young person.

33. The victim was interviewed by police 2 days after the offence for 32 minutes and was unable to recall this offence occurring. It is unclear what effect this offence has had, or will have on the victim. Notwithstanding the offender’s limited capacity, she immediately disclosed the offending to her mother, acknowledged that she had done ‘something really bad’ and deleted the recordings from her phone.

34. The Crown submits that having regard to the short duration of this offence, the nature of the offending, the fact that the young person’s older “boyfriend” had encouraged her to perform the act and what appears to be the limited effect it has had on the victim, that this offence falls at the lower end of objective seriousness. Ms Jardim made no submissions to the contrary.

35. I agree, and find that this offence falls at the low end of objective seriousness, notwithstanding the aggravating factors set out below.

First Incident- disseminate child abuse material

36. In Minehan v R (2010) 201 A Crim R 243 at [94], the Court of Criminal Appeal identified the following factors as being relevant to an assessment of the objective seriousness of a range of offences including possessing, disseminating and transmitting child pornography:

1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material; in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender’s purpose, i.e. whether it was for her own use or was for sale or dissemination.

6. In a case of dissemination or transmission, the number of persons to whom the material was disseminated or transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition, dissemination or transmission.

8. The proximity of the offender’s activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter bearing upon the objective seriousness of the offence.

37. This short video was created at the request of AB. The video is 5 seconds long and depicts the young person performing fellatio on her 5 year old brother, and was sent only at the request of AB who then shared the video with his 17 year old female cousin who in turn immediately showed the video to her mother before police were called.

38. The Crown submits that the objective seriousness of this offence falls towards the mid-range having regard to the nature and content of the video, the age of the victim and the fact that it was sent to one person who then forwarded it to another 17 year old person.

39. In my opinion, taking into account all the circumstances, the offending falls between the low and mid-range.

Second Incident – Sexual intercourse with child under 10 years

40. The Crown submits that this offence is objectively more serious than the first in time offence. It takes place 2 hours after the first offence and lasts for at least 18 seconds.

41. This offence also occurs after repeated requests from AB who told KL that the first video she sent him was not clear.

42. For these reasons, the Crown submits that the offence falls closer to the mid-range of objective seriousness. I find that it falls somewhere between the low and mid-range.

Second Incident - disseminate child abuse material

43. The Crown submits that this offence is objectively more serious than the first in time offence. This offence takes place 2 hours after the first offence, and it lasts for at least 18 seconds.

44. Like the first offence, this offence takes place after AB’s repeated requests that KL perform the act, record it and then send the video to him because the first video was unclear.

45. For these reasons, the Crown submits that this offence falls towards the mid-range of objective seriousness. I find that it lies somewhere between the low and mid-range.

Section 6 of the Children’s Act

46. At the time of the offending, the offender was a “child” as defined in the Children’s Act. Section 6 of the Children’s Act is relevant to these proceedings, with its emphasis on the need for guidance and assistance as a consequence of immaturity. These considerations assume a more prominent role in the formulation of a sentence than the s 3A Crimes (Sentencing Procedure Act 1999 (the Sentencing Act) objectives. Specifically, considerations of punishment, denunciation and general deterrence may yield to the need for reform and rehabilitation of youthful offenders.

47. Ms Jardim submits that the age of the young person is significant in these sentence proceedings for two reasons. First, there is a substantial public interest in the rehabilitation of young offenders, particularly those with KL’s background. Second, a young person’s immaturity is relevant to culpability or criminality because ‘children do not have adult value judgments, adult experience, adult appreciation of consequences’: see Campbell v R [2018] NSWCCA 87 at [31]. Here, KL was 14 years of age at the time of offending. Had she been three months younger, there would have been a rebuttable presumption of doli incapax.

48. The extent to which the offender’s youth at the time of the commission of the Children’s Act offences increases the significance of rehabilitation at the expense of the role of general deterrence was explored by McClellan CJ at CL in the well-known passage in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] - [24]:

The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

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.

Section 21A matters

Aggravating Factors

49. The Crown observes that the offence was committed whilst the offender was on conditional liberty. The young person was on bail for intimidating her 5 year old brother and mother with a knife on 2 occasions in November and December 2018. I note however, that those incidents mirrored the offender’s own experience when she was threatened by her uncle with a knife at a young age.

50. The Crown further submits that the offence was committed in the home of the victim and the fact that this was also the young person’s home does not limit the operation of section 21A: Jonson v R [2016] NSWCCA 286 at [40]. None of this is disputed by Ms Jardim, and I have taken these matters into account.

Plea of Guilty

51. The offender pleaded guilty at the earliest opportunity and she is entitled to a discount of 25% for the utilitarian value of her early plea, which is agreed between the parties.

General Deterrence and Denunciation

52. The principle of giving special consideration to the youth of an offender has been long accepted. In R v C (unreported 12/10/89, NSWCCA), Gleeson CJ accepted that “in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.” When a child is dealt with at law, rather than under the more lenient provisions of Pt 3 Div 4 of the Children’s Act, the special principles applicable to children under s 6 of that Act still have to be taken into account: R v SDM (2001) 51 NSWLR 530.

53. The Crown accepts that considerations of punishment and general deterrence should be regarded as subordinate to affording the opportunity and encouragement for rehabilitation but says that the significance of this factor diminishes as an offender approaches adulthood: R v Hearne (2001) 124 A Crim R 451. The Crown also accepts that KL’s age and diagnosis of PTSD, borderline intellectual delay, acute anxiety and ASD make her an inappropriate vehicle for general deterrence. I agree.

Mental Health & Disadvantage

54. Ms Jardim submits that KL presents with a complex mental health history. She has experienced a number of early traumatic experiences, including sexual abuse and threats of physical harm. There are concerns as to the ability of her mother to properly support her, given her wide ranging needs. An assessment of her intellectual functioning indicates that she is functioning in the very low average range. In addition to her limited intellectual functioning, KL has been diagnosed with ASD, at either level 1 (mild) or level 2 (moderate). She also suffers from anxiety and PTSD.

55. Ms Jardim relies on the following passage in Muldrock v The Queen (2011) 244 CLR 120 at [54]:

The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence.

56. The Crown submits that it is clear from the psychological reports tendered on sentence that as KL functions below her chronological age and has been diagnosed with a range of disabilities, these are matters which have impacted on the young person’s ability to fully comprehend the gravity of the offence.

57. The Crown accepts that KL’s age, together with her various diagnoses impact the assessment of her moral culpability. Both parties agree that I should be guided by the principles set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] when assessing KL’s moral culpability, the Crown conceding that the offender’s mental health has contributed to the commission of the offences in a material way.

58. If a child sexual assault offender was sexually abused as a child, and the history of abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty: R v AGR (unreported 24/7/98, NSWCCA) at 13. However, while it is appropriate to take such a circumstance into account, the Crown submits that it cannot be regarded as an excuse, notwithstanding the fact that such a link may aid in explaining the reason why the offender committed the offence. I agree that it does not exculpate the offender. Rather, it goes some considerable way to explaining the offending, in particular because the facts of the sexual abuse she suffered mirror to a large extent the abuse she perpetrated.

59. Although it did not loom large in either oral or written submissions, there is no doubt that the offender has suffered marked disadvantage throughout her young life. She has witnessed and been the object of violence in her family. Her mother disparages her and lacks the resources to properly address the offender’s intellectual handicaps and challenging behaviours. The offender was the victim of sexual abuse at a young age. She has (even recently) gone hungry. Her family is dysfunctional, and her father has long been absent. She has moved house and schools many times. There is an abundance of evidence of these matters in the exhibits.

60. As Fullerton J said in Perkins v R [2018] NSWCCA 62 at 99:

The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. 

61. Indeed, the Bar Book Project, found on the Public Defenders website: provides an invaluable resource of evidence relating to disadvantage. For example, as to childhood sexual abuse, it cites research that sexual abuse is a 'substantial risk factor for the development of subsequent mental health problems'. [1] As to childhood exposure to domestic and family violence, the Bar Book cites research that “there is mounting empirical evidence of the effects of exposure to domestic and family violence on children’s development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage.” [2] See also N Cowdery AO QC, J Hunter and R McMahon, “Sentencing and disadvantage: The Use of Research to Inform the Court” (2020) 32(5) JOB 43.

    1. Margaret C Cutajar et al, 'Psychopathology in a Large Cohort of Sexually Abused Children Followed Up to 43 Years' (2010) 34 Child Abuse & Neglect 813, 819 accessed in

    2. Australian Institute of Family Studies, Children's Exposure to Domestic and Family Violence: Key Issues and Responses (December 2015) 2 accessed in

62. In this case there is ample evidence to establish the offender’s background of deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at 44.

63. I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:

I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.

64. This is such a case. Taking into account the limited emotional resources of the offender and the trauma she has experienced, it is unsurprising that the events, the subject of these proceedings, have manifest themselves.

65. In my opinion, the offender’s mental health and her disadvantage have both materially contributed to the offending to a significant extent. Taking into account all the evidence, I find that the offender’s moral culpability is substantially diminished and I find that it is mitigating on sentence.

Personal Deterrence and Prospects of Rehabilitation

66. The Crown submits that these offences show disturbing behaviour by a very young person, and expressed concern that KL committed the offences at the insistence of an older male peer. The psychologists say that KL likes to please people she considers friends out of fear of rejection. In the Crown’s submission, this is a serious issue that needs addressing before the court could be confident that the young person will not re-offend.

67. The Crown further submits that KL’s mother’s attitude to the offending is also a matter that would cause the court concern. She submits that the facts outlined in the psychological reports make clear that KL’s mother did not immediately discipline KL or tell her that her actions were wrong when the young person disclosed the offending to her. I observe, however, that the mother did immediately ensure that her two children were not left alone unsupervised.

66. Both Ms Martens and Professor Hayes say that KL was not yet engaged with appropriate programs to address her offending behaviour. They both commented, however, that if KL was engaged in sexual counselling and education, therapeutic interventions for autism, and programs to address anger management and develop social and interpersonal skills, then her risk of reoffending would be markedly reduced. I note too that there is a recent and comprehensive treatment plan and commitment from Communities and Justice to ongoing support.

67. Ms Jardim submits that since her arrest, KL has actively engaged with numerous services, attending each appointment and participating in each interview. She has engaged with all services and now receives appropriate psychological intervention both in terms of her offending conduct and her general wellbeing.

68. The offender is still very young. Her previous offending mirrored the violence perpetrated upon her by her uncle and the current offending mirrors the sexual abuse perpetrated upon her. I am not of the view that personal deterrence has any role to play. As to her prospects of rehabilitation, on one view, because of her deprived background and mental health issues, they must be guarded. However, both parties agree that there is now ample and appropriate support in place and that the young person appears to have good prospects of rehabilitation. I therefore so find.

Remorse

71. The agreed facts detail that the young person approached her mother immediately after the offending and said “Mum, I did something really bad….Mum I took my brother’s dick and put it in my mouth”. The Crown submits that this shows remorse and insight into her actions, but that it is unfortunate that immediate action was not taken by KL’s mother at this point to prevent the distribution of the video by AB to his cousin. That, however,    is not the fault of KL.

72. Ms Mills’s report of 14 August 2019 observes that the young person “was very embarrassed and remorseful as she has just come to the realisation that was not appropriate. KL explained how she was convinced that the lewd act would not do any harm to her brother and he would see it as just playing”. The Crown accepts that KL has shown some remorse for her actions, but says that the depth of remorse is likely affected by both her youth and disabilities.

73. I accept that the offender has shown consistent and appropriate remorse in all of the circumstances.

Prior Criminal History

74. The offender has one previous offence of stalk/ intimidate intend fear physical harm (domestic) from 2018. She received a good behaviour bond, which was in place at the time of this offending. I do not consider that the offender’s criminal history is an aggravating factor on sentence. Neither, of course, does it assist her. As I have said, taking into account KL’s personal history, it may explain the reasons for that offending.

Totality

75. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

76. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. It is accepted amongst the parties that that there are a number of common features of criminality between the offences. The Crown submits that there should be a degree of accumulation to reflect in fact that the offences were committed on two separate occasions.

77. In R v MAK and MSK (2006) 167 A Crim R 159 it was said that courts need to consider the crushing effect of a long sentence, because it will leave the offender with a sense of hopelessness and destroy any expectation of a useful life after release. This is particularly pertinent with respect to a juvenile offender, where the facilitation of rehabilitation has some primacy. It is apt, in my opinion, in the present case.

Form 1 Matters

78. As indicated earlier, I have been asked to take into account matters on a Form 1 basis when sentencing the offender, the details of which I have already set out above. This has the effect of slightly increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, the increase operates to recognise the community’s entitlement to retribution for the Form 1 offending, although the focus remains on the primary offence. I have taken these offences into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. In my opinion, the matters on the Form 1 add very little.

Sentencing Approach

79. The purposes of sentencing are expressed in s3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. Section 6 of the Children’s Act must also be taken into account. As so often occurs, but more so in this case, the facts and circumstances of the present offending and this offender highlight how the various purposes of sentencing pull in competing directions.

80. As the High Court said of s3A in Muldrock at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen(No 2) [at 476] in applying them.

81. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period (if any) and the factors referred to in s21A of the Sentencing Act. A sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25). Here I must also be conscious of the objectives of section 6 of the Children’s Act.

82. I have had regard to section 5 of the Sentencing Act, and I find that I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, notwithstanding the seriousness of the offences on the indictment and on the Form 1s. I find that a Community Corrections Order (CCO) is appropriate in all of the circumstances. I propose to impose a CCO for the duration of 3 years.

83. Pursuant to s3C of the Child Protection (Offenders Registration) Act 2000, the court can make an order declaring that the young person is not to be treated as a registrable person for the purposes of that Act in respect of this offending subject to the matters set out in s3C(3). Given the young person’s limited functioning and the unusual circumstances of the offending, it is submitted by Ms Jardim that the court could be satisfied on the balance of probabilities that the young person does not pose a risk to the lives or sexual safety of one or more children or children generally. Ms Macdonald agrees, as do I.

84. I find that KL should be treated as a non-registrable person.

Orders

85. KL, please stand.

86. You are convicted of the offences of:

1. Two counts of sexual intercourse with child under 10 years contrary to s 66A(1) of the Crimes Act 1900; and

2. Taking into account the matters on the Form 1s, two counts of disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900.

87. I impose a Community Corrections Order for 3 years with respect to each offence, each to be served concurrently. The order is to date from 31 July 2020 and expire on 30 July 2023.

88. The following conditions apply:

1. You must not commit any further or other offence; and

2. You are to appear before court if called upon;

89. The following additional conditions apply:

1. You are to accept the supervision of Youth Justice and accept all reasonable directions and referrals made by them.

2. You are to comply with the treatment plan as outlined in the Youth Justice report dated 8 July 2020 which includes:

1. Psychoeducation relating to sexual consent, especially regarding the legal age of consent.

2. Understanding and managing sexual urges appropriately.

3. Teaching of social skills regarding healthy relationships and supporting KL to build healthy, meaningful relationships.

4. Teaching of assertiveness skills to address issues related to vulnerability.

5. Assisting KL to understand her offence pathway and manage her risk factors.

6. Psychoeducation to address symptoms related to KL’s own experiences of sexual abuse and skills training to improve self-efficacy.

7. Working collaboratively with KL’s school to help reduce her social isolation and increase her contact with prosocial peers.

8. Follow-up with NDIS regarding speech assessment, which can be incorporated into KL’s treatment plan, such as adjusting treatment to suit her needs, and referring her to speech therapy.

9. Inclusion of the social worker in the counselling process, to educate her in supporting KL’s intervention needs and appropriate responses to problematic or sexualised behaviour.

3. You are to accept all directions given by Youth Justice in relation to education and/or employment;

4. You are not to associate with AB; and

5. You are to reside as directed by the Department of Communities and Justice.

90. You are to report, by telephone, to the Campbelltown Youth Justice Office within 7 days, by 7 August 2020.

91. I make an order declaring that the offender KL is not to be treated as a registrable person for the purposes of the Child Protection (Offenders Registration) Act 2000 with respect to these offences.

Endnotes

Decision last updated: 03 August 2020