R v KL

[2019] NSWDC 731

District Court

New South Wales

Medium Neutral Citation:	R v KL [2019] NSWDC 731
Hearing dates:	21 November, 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	Aggregate sentence 2 ½ years, non- parole period 15 months. The sentence is to be served in a Juvenile Detention facility
Catchwords:	SENTENCE – sexual intercourse with child under 10 years – carnal knowledge – juvenile detention centre-protected custody – sex offender programs – prospects of rehabilitation
Legislation Cited:	Children (Community Service Orders) Act Children (Detention Centres) Act 1987 Children’s (Criminal Proceedings) Act Crimes Act 1900
Cases Cited:	BM v R [2019] NSWCCA 223 Muldrock v R [2011] HCA 39 at [27 Paul Campbell v R [2018] NSWCCA 87 at [26] R v AA [2017] NSWCCA 84 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) KL (Offender)
Representation:	Counsel: Mr Campbell for the Crown Mr Watts for the Offender   Solicitors: Ms. D. Collin (DPP) Mr. H Vandugteren (Legal Aid)
File Number(s):	2016/321397

Judgment

1. The offender was a child at the time of committing the offences the subject of these reasons. The victim of these offences was also a child at the time of the offending. The offences are two counts of sexual intercourse with a child under the age of 10 in breach of section 66A(1) of the Crimes Act 1900. For these reasons pursuant to section 578A of the Crimes Act and section 15A of the Children’s (Criminal Proceedings) Act the names and places relevant to these events will be anonymised. The maximum sentence for each charge is life imprisonment with a standard non-parole period of 15 years though the SNPP only applies to adult offenders and thus not this offender.

2. The agreed facts will be set out below. At the outset three significant aspects of the matter can be noted, two of them factual and one legal. The first factual matter is that the victim in this case was seven years old at the time the offender, her 16-year-old half brother, had penile / vaginal sexual intercourse with her and subsequently digital intercourse. The second factual matter is that on one possible view the offender comes from a family that does not consider it to be wrong for a 16-year-old half brother to be having sexual intercourse with his seven-year-old half sister. The view I take is that the situation is not as simple as that and this will be discussed below. The significant legal aspect of the matter is the interrelationship of the Crimes (Sentencing Procedure) Act (CSPA), the Children (Criminal Proceedings) Act (CCPA) and the Children (Community Service Orders) Act (CCSO).

The legal aspect

3. The following description of the interrelationship of the above-mentioned legislation is taken from the careful and helpful submissions of the Crown prosecutor which were largely adopted by counsel for the accused. The point of difference between them turns not on legislative interpretation, but on question of whether the section 5 threshold of the CSPA has been crossed, and thus whether no other sentence than imprisonment is appropriate.

4. The CCPA applies in this case because section 16 of that Act is satisfied. The offender has pleaded guilty to an indictable offence in a court other than the Children’s Court, namely this Court, was a child when the offence was committed as he was 16, and was under 21 years of age when charged before the court with the offence. The offender is presently 19.

5. Section 3 of the CCPA defines a serious children’s indictable offence as including an offence punishable by imprisonment for life or for 25 years. As noted above the maximum sentence for the two offences committed by the offender is life imprisonment. The offences are therefore serious children’s indictable offences (SCIO).

6. By section 17 of the CCPA a person to whom division 4 applies (which is where section 16 is found) will, in relation to a SCIO be dealt with according to law. To be dealt with according to law requires the offender to be dealt with in accordance with the CSPA.

7. Section 5 of the CSPA provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

8. What then are the sentencing possibilities for this offender? They are:

1. a full-time custodial sentence; this involves considerations as to whether any such sentence is served in a juvenile justice detention facility and or an adult prison, which I note the evidence refers to as a correctional centre.

2. By section 67 of the CSPA an intensive correction order (ICO) must not be made in respect of a sentence of imprisonment for a prescribed sexual offence. The section goes on to define such an offence to mean an offence under division 10 of the Crimes Act 1900 being an offence the victim of which is a person under the age of 16. That would include this offending. Accordingly the penalty of an ICO is not available to this offender.

3. The next option is a community correction order. By section 8 CSPA a community correction order may be made instead of imposing a sentence of imprisonment. Whether or not this order is available turns on whether the section 5 threshold is crossed. The wording of the provision is a little problematic because of the use of the words “instead of”, which suggests that where a sentence of imprisonment is considered appropriate then this penalty can be substituted. This is in contrast to section 7 which allows the imposition of an ICO where an offender has been sentenced to prison. Thus, despite the words “instead of” appearing in section 8, the distinction between an ICO and a CCO is that an ICO is available where the section 5 threshold is crossed, and a CCO is a possibility only when some other penalty than imprisonment is appropriate. In this matter the Crown and the accused differ because the Crown says a CCO does not recognise the seriousness of the offence whereas the accused argues that in all the circumstances of the case a CCO is appropriate.

4. A second aspect of section 8 is relevant to the facts of this case due to the age of the offender. Subsection 2 provides as follows:

A community service work condition must not be imposed on a community correction order made in relation to an offender to whom the Children (Community Service Orders) Act 1987 applies.

5. Section 4 of the CCSO provides that Act applies to a person who has pleaded guilty to an offence, was a child when the offence was committed and who was under 21 when charged before the court with the offence. The CCSO therefore applies to the offender here. As a result any CCO imposed on the offender under the CSPA cannot, by reason of section 8 of the CSPA, have a community service work condition. I would add that notably the CSPA does not otherwise prohibit the imposition of a CCO on an offender to whom the CCSO applies. That avenue remains available because of s17 of the CCPA.

6. Despite section 8(2) of the CSPA, a community service order can be imposed on this offender if the requirements of section 5 CCSO are satisfied. By that section, a court that would impose a term of imprisonment may, instead of making that order, make an order requiring the person to perform community service work. This avenue is not available to the offender here because of subsection 5(3) of the CCSO which prohibits this court from exercising powers under section 5 of the CCSO if this court has made or proposes to make an order under Division 3 of Part 2 of the CSPA, which is that Division of the CSPA which provides for CCOs. In short, if a CCO is to be imposed on this offender, no community service order can be made under either the CCSO or the CSPA. The Crown submits that proceeding by way of a CCO under the CSPA without a community service order, or by way of a community service order alone under the CCSO does not reflect the seriousness of the offending. The submission for the offender is that as there are two offences, a CCO could be imposed in respect of one offence, and a community service order could be imposed in respect of the other. The Crown response to that argument is to say such a penalty still fails to adequately reflect the seriousness of the offence. This is consistent with the Crown’s primary submission that the section 5 threshold is crossed, that is, that no other penalty than a sentence of imprisonment is appropriate.

9. The Crown next turned to the issue of where a term of imprisonment would be served by this offender. Under the CCPA, by section 19, (which for reasons stated above applies to this offender), if a court sentences a person under 21 to prison in respect of an indictable offence the court may order that the whole or any part of the term of the sentence be served as a juvenile offender. The effect of this is that part of the term of imprisonment would be served in a detention centre subject to the provisions of the Children (Detention Centres) Act 1987. By section 19(2) a person is not eligible to serve a sentence as a juvenile offender after the person has attained the age of 21 years, unless the non parole period ends within 6 months of the person turning 21. The offender in this case was born on xx December 1999, so to meet this eligibility criteria any non parole period would need to expire on or before 11 June 2021. Further by section 19(3), where, as here, the offender is over 18 at the time of sentence, the offender is not eligible to serve a term of imprisonment as a juvenile offender unless the court is satisfied there are special circumstances justifying such detention. Section 19(4) sets out the grounds which must be found for a finding of special circumstances. This includes that the only available educational, vocational training or therapeutic programs that are suitable to the offender’s needs are those available in detention centres. The Crown concedes that this ground is made out in this case. The various Juvenile Justice reports in evidence and discussed below bear this out.

10. The ultimate submission of the Crown was that the appropriate sentence is one of imprisonment, and that it should be served in a juvenile detention centre, and that accordingly the non-parole period should expire no later than 11 June 2021.

11. As noted above Mr Watts, counsel for the offender, agreed with the legislative analysis just outlined. That said Mr Watts argued that there was still some tension in applying the legislation. When elaborated the effect of this submission was as referred to above that, provided the court formed a view there was some sentence short of a sentence of imprisonment that was appropriate, then there could be both a CCO and a children’s community service order by imposing a CCO on one offence and the children’s community service order on the other. In this way the prohibition on imposing a condition on this offender of a community service order is overcome. Whether or not that was the purpose of the legislation and whether or not the legislation should be interpreted to permit that outcome only needs to be considered if a conclusion is reached that the section 5 threshold is not crossed. That said in determining that question it is necessary to be aware of what other form of sentencing is available. Accordingly for the purposes of considering whether the section 5 threshold has been crossed I will in the first instance assume that under the legislation described above the approach argued for by Mr Watts is in fact available.

12. In order to determine whether the section 5 threshold has been crossed it is necessary to now set out the agreed facts and consider all the relevant facts and circumstances of the matter.

Agreed Facts

13. The agreed facts are relatively brief particularly given the serious nature of this offending. It is simpler to recite the agreed facts in the following paragraphs than to summarise them.

14. The young person offender in this matter, (“the offender”) was born in 1999 and aged 16 years at the date of the offences, and of his arrest.

15. The victim was born in 2009 and aged seven years at the date of the offences. She is the offender’s half-sister, they share the same mother (“the mother”).

16. The offender has resided with his paternal step grandparents, since the age of about three on a farm in northern NSW. The step grandmother is restricted to a wheel chair and often remains in the house.

17. The victim resides with her parents and two other half-brothers on a property within 200 metres of the offender. She is also close to the step grandparents, (her actual grandparents) visiting them on an almost daily basis.

18. In October 2016 a report was accepted by JIRT for investigation by the Child Abuse Squad.

19. On Wednesday 26 October 2016 the victim participated in a ROI with Police and Family and Community Services.

20. During the interview the victim disclosed two incidents of sexual assault by the offender.

Count 1

21. On a Saturday between the start of the NSW school term 3 and the end of the following school holidays the victim attended her grandparents' house for the day. She was aged seven at the time.

22. Her grandmother and the offender were at home. The victim was playing with her grandmother when the offender asked her to help him with a job outside.

23. The victim believed he was taking her to the garden however he took her to a small shed located in the back yard of the premises. She walked into the shed and saw a white doona laid out on the ground with a towel on top of it. The offender instructed her to lie down on the doona and pulled her pants down. He then pulled his penis out from his pants and lay on top of her, putting ·his penis into her vagina.

24. The offender moved backwards and forwards a few times, with the victim describing that it "kind of hurt" and "stung". The grandmother called out to them and the offender stopped.

25. The victim pulled her pants up and went back inside to her grandmother and got a drink. During this assault the offender said to the victim, “lf you tell mum I'll get into trouble and I don't want to get into trouble".

Count 2

26. Later that day the offender returned to the shed with the victim. He instructed her to, "hop on your hands and knees," which she did. The offender pulled the pants of the victim down and inserted his finger into her vagina.

27. Again, the grandmother called out and the offender stopped. He left and the victim put her pants back on before returning to the house.

Complaint

28. In late October 2016 the victim disclosed to a school friend about what had occurred. That friend (“the friend”), told her mother.

29. ln turn that person told the mother of the allegation and reported it to the principal of the school attended by the victim.

30. The principal asked the friend to confirm what she had been told which she did before making a formal notification of a child at risk of serious harm to DOCS.

31. About 9:45am on Thursday 27 October 2016 Police attended the offender’s home.

32. The offender was placed under arrest and cautioned in the presence of the step grandmother. He was transported to a Police Station.

33. On arrival of a support person the offender was provided the opportunity to speak with a solicitor. The offender was offered the opportunity to participate in a recorded interview with Police which he declined on the basis of legal advice.

OBJECTIVE SERIOUSNESS

34. Dealing first with the count involving penile / vaginal sexual intercourse. Whilst recognising there is no hierarchy of the particular manner of sexual assault this is nevertheless a sexual assault of the most significant kind. There was deception involved in luring the victim away from playing with her grandmother inside the house to firstly outside of the house and then into a shed. That alone suggests there had been some more than immediate forethought about the offending. The presence in the shed of a doona that was laid out on the ground with a towel strengthens that view. I consider that there was a degree of planning as to this offending. Additionally, the pretence adopted of asking the victim to help him with a job outside before going to the shed, as well as enforcing the planning aspect, also suggests a degree of appreciation by the offender that what he was doing was wrong, a matter I will discuss further below. For present purposes it is enough to note that this was not an opportunistic event but a planned one. The agreed facts do not indicate any degree of resistance by the victim or of force by the offender nor of any violence, beyond noting that the effect of the act of intercourse was described by the victim as “kind of hurt” and “stung”. I note that the offending ceased upon the grandmother calling out to the offender and victim. Further there was subsequent to the assault the unconscionable conduct of the offender in an effort to ensure the victims silence by seeking to create some sense of guilt on the part of the victim by saying if she told anybody he would get into trouble and he did not want that. This is a second matter indicating the awareness of the offender that what he was doing was wrong for why else would he be getting into trouble.

35. At the time of the offence the victim was seven years old. That is very young. It is difficult to imagine that anybody of the age of this offender could be of a mind that having sex with a seven-year-old was in some way acceptable. For the purpose of considering objective seriousness however the offence is one of having sex with a person less than 10 so that the fact that the victim was seven is to be viewed as an element of the offence and perhaps favourably to the offender is an age not far removed from the ceiling age for this offence. The age disparity however between the offender and victim is a significant one; the offender is 16 years old, an age at which many young males have left school and are in the workforce and are physically sexually mature.

36. The age of the offender is a matter which self evidently is a matter subjective to the offender. It is however also a matter which may bear upon an assessment of the objective seriousness of the conduct; see R v AA [2017] NSWCCA 84. The offender in AA was sentenced for five offences. The earliest of those offences was aggravated indecent assault at a time when the offender was 15. The latest of the offences was committed when the offender was 19. The argument by the Crown on appeal included that the trial judge had erred in assessing the objective seriousness by taking into account the offender’s age. In discussing this point Beech-Jones J accepted that there had been a reference to the offender’s age in determining objective seriousness and then said “nevertheless in the context of a sexual offence some aspects of an offender’s personal circumstances may bear upon the “nature of the offending” (Muldrock v R [2011] HCA 39 at [27]). For example the age difference between a sexual offender and their perpetrator (as quoted, presumably to be read as “victim”) can affect an assessment of the objective seriousness of the offending. Additionally the age of the perpetrator can be relevant to an explanation of the context in which the offending occurred”. The conclusion then was that there was no error in referring to the offender’s age. Query however to what degree this assists the offender in our present case. Justice Beech-Jones then went on in that paragraph to say that it was likely or possible that the victims could distinguish between the offender and an adult and then said that did not deny or even mitigate the seriousness of the conduct. Indeed noting the age of the offender in our present case highlights the age difference between the offender and the victim and detracts from the argument that the age of the offender lessens the seriousness of the offence.

37. In that same discussion at [54] Justice Beech Jones succinctly summarised some statements found in Muldrock. This included the distinction between an assessment of objective seriousness and an assessment of moral culpability. The latter assessment takes into account matters personal to the offender including impaired intellectual functioning.

34. The offender also helpfully referred the court to BM v R [2019] NSWCCA 223. In that case at [15] the court referred to Tepania v R [2018] NSWCCA 247 at [112] where Johnson J explained, and with which Payne JA and Simpson AJA agreed, that in determining the objective seriousness of an offence regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offences including a mental disorder or mental impairment. This approach extends such personal factors from the realm of moral culpability and the impact that may have on the ultimately instinctively derived sentence as a result, to becoming relevant in determining objective seriousness which also, of course, informs the overall instinctive analysis. It would of course be necessary to ensure whilst considering both objective seriousness and moral culpability that there was not some form of double counting. In BM the court then went on to refer to AA where it was accepted that the age of the young offender who had committed child sex offences may bear upon an assessment of objective seriousness. It is interesting that at [16] the court in BM was express in confining their remarks to the specific circumstances of child sexual assault cases. Whether that results in the need for further consideration of such matters impacting objective seriousness in other types of offending is not expressly addressed, doubtless because it was not relevant to do so, and nor is it relevant to consider that here.

35. In this case based on the evidence that I will set out below the offender relies not so much on his impaired intellectual functioning but the social and moral environment in which he grew up which on the argument of the offender was one which did not recognise either at all or to the same extent as may be expected by the rest of the community the wrongfulness of sexual relations between children and family members. I have considered that submission below and the conclusion that I have reached is that the relative social isolation of the offender, and the environment in which he grew up did not result in a lack of awareness on his part of the offending conduct being wrongful, though I do find that it did contribute to some degree to the offending occurring. The consequence of this is that it lessens the offender’s moral culpability, and lessens the objective seriousness of the offences. Where my finding differs from the submission of the offender’s counsel is that I do not consider that lessening of moral culpability and objective seriousness to be marked.

36. Taking those matters and the other matters discussed above into account my assessment in this case is to place the objective seriousness of count one well into the mid- range.

37. The second count was one involving digital penetration of the vagina. The victim and the offender returned to the shed and nothing is said as to any inducement. The victim did what she was told and offered no resistance. The offender pulled her pants down and inserted his finger into her vagina. There is no indication in the facts of the duration of this offending. The offending ceased when the grandmother called out. There is nothing said as to any force, violence, coercion or resistance. On this occasion there was nothing said by the offender to the victim as to not telling anybody. The event occurred later on the same day as count one. In my view the objective seriousness of this matter is less than the other count and I would assess it as being in the low range.

Subjective matters

42. The offender relied on a report of Dr Sally McSwiggan, a consultant neuropsychologist dated 4 November 2018. The purpose of that report was to assist in determining whether the offender was fit to plead. It sets out the offender’s background. He was born on xx November 1999 though I note other documents state his date of birth to be xx December 1999. The latter date seems to be the accepted date by the parties and I have adopted it. The psychologist states that the offender presented well and was polite and orientated and he did not appear impaired.

43. The offender’s parents separated when he was in primary school. He was then raised by his paternal step grandparents and remained living with them. He has a poor relationship with his mother. His school records have no suggestion of intellectual disability and an average performance in maths and a decline in reading and writing scores from primary to high school. He has an unremarkable medical history, he denied contact with medical health services and denied substance or alcohol use. Not surprisingly the conclusion was that on the balance of probabilities the psychologist considered the offender fit to plead.

44. A second report was relied upon this time by Patrick Sheehan forensic psychologist dated 19 February 2019. It records as did the earlier report that the offender has two older brothers and adds that when his mother re partnered they lived with his mother but the offender stayed with the parents of the new partner so in effect his step grandparents. This home environment was described as positive and supportive and there was no reporting of any childhood trauma of significance though other reports suggest an attempt by his father to burn the home and an occasion of somebody assaulting his mother. He left school after only a few weeks of year 10 and he said he would pretend to be sick so he could do other things like being on the farm.

45. He has worked on an unpaid basis on the farm and has also cut wood for casual work and cash in hand payments.

46. The offender denied sexual preoccupation and denied any sexual interest in children and said his only actual sexual experience with another person was the current offence matters. He has never had a girlfriend or engaged in any other form of sexual intimacy. As with the earlier report he denied a history of any mental health issues but there is reference in his records to PTSD symptoms and secondary exposure to multiple domestic violence incidents. It is not stated but presumably this was his parents pre-separation.

47. The offender gave what the psychologist described as an implausible account of the offending in which he described the victim as a sexually aggressive child and himself as an unwilling participant albeit that he claimed to have no memory of it. The offender agreed it was an unrealistic account and said he felt very shameful about it and could not talk about it openly. There is I might note in those comments more than a hint of remorse and knowledge of wrongdoing.

48. Consistent with this the offender acknowledged the difficulties the offending caused the victim.

49. This report concludes that the offender has achieved only minimal levels of independence for a 19-year-old. It postulates that his social inhibition and inexperience may be relevant features to his case. The view was expressed that his prospects of rehabilitation are better served within juvenile justice regardless of whether it was a custodial or community based sentence (par 23).

50. The offender also relied upon a psychosocial report prepared by Danielle Castles who is the manager, client assessment and referral within the Legal Aid Commission of New South Wales. For that report the offender was interviewed along with his paternal step grandparents who stated they had cared for the offender since about the age of 2 ½ having earlier witnessed him being bullied by his older brothers and in their view not adequately cared for by his mother. Notably though the offender’s mother, new partner, older two brothers, and upon her birth the younger half sister who is the victim, lived in a house located about 200 m away from the offender. Despite this proximity the offender says he feels unwanted by his mother. He says his father was an alcoholic and remains such and was violent towards his mother. He said he felt hurt by not having a relationship with his father. Added to that he says the stepfather is jealous of him for him now getting the attention that he used to get, presumably from the step grandparents. The step grandmother described her own son as jealous and nasty and described the offender’s mother as “very rough”. The offender has few friends but has developed a father figure relationship with a neighbour named Mr Ryan.

51. This report is important for its description of family attitudes. At paragraph 2.1 the offender says he did not know any better, that it was a spur of the moment idea, and that he knew it was wrong if he bullied her or forced her to do it. The offender’s stepfather’s response to the offence was said by the offender to be one of not caring but that he wanted everything to work out fair. He says his mother says it was his fault and that his mother believes he had sexual intercourse with the victim and the offender then stated “but she was just being a very cheeky little girl”. I take this last statement or phrase to be the offender’s view which does not argue well for insight. The offender went on to say that as far as he knew the victim was coping fine, as though it never happened and “if it was that serious we’d notice changes in her”; (at par 2.6).

52. As to the step grandparents the offender described them as being on his side and that his step grandfather refused to accept the offence occurred. The offender said his grandparents were old school and asserted agreement when asked if his grandparents actually said that they considered sex between siblings an ordinary thing. The offender said yeah well it was then. The offender then said this when asked if that was his grandparents experience:

“Well gran can tell you herself if she wants to but my grandfather well as far as I know he never done it in his family but he told me he had a mate and they used to fool around with his sister. And she was only nine or 11 at the time but still they fooled around with her. All I know is if his father found out he would have got a good flogging.”

53. According to this report the offender maintained he did not know that sex with his sibling was wrong until charged by police and said “in my eyes I don’t consider it any different to an animal. If a father of a calf was to go and check her out and he can there is nothing stopping him”. He then went on to class himself as an animal but then went on to agree that children were too young (I assume for sex) and that he accepts he was charged with the offence because of the age difference and the relation.

54. At paragraph 4.3 Ms Castles expresses the view that the striking aspect of the family subculture is the belief that sex between siblings is considered normal and that it appears to be generationally sanctioned and reinforced. She notes the family remained surprised by the law enforcement response and maintain they did not know sex between siblings is against the law. She notes the remarkable lack of consideration shown to the victim or acknowledgement of harm caused to her.

55. Ms Castles noted the offender’s contribution to the household enabled his grandparents to live in their home. The ultimate conclusion of this report is that whilst the offender admits to his wrongdoing there is a lack of understanding of why his behaviour is considered abhorrent by society and this is an indication of the belief he has developed from the environment which nurtured him. Any treatment would be undermined by remaining in this environment.

56. In order to properly take into account subjective factors, and to properly assess objective seriousness, it is necessary to come to some conclusions concerning the attitudes of the offender and his family and the environment which nurtured him. The court is at somewhat of a disadvantage because the views of Ms Castles have not been tested, though this favours the offender as she was not sought to be cross examined. It is notable also that the rather extreme picture painted by her in terms of the acceptance of incest amongst children as young as 7 is not something touched upon by two earlier psychologist’s.

57. The function of an expert is to provide assistance to the Court, and not to usurp the function of the Court to determine the issues the subject of the expert’s evidence. I do not accept the conclusions reached by Ms Castles to the extent that she has stated them. In particular I do not accept that the family subculture is the belief that sex between siblings is considered normal. The history set out in the report does not support this conclusion. Which of the family actually “maintained” (par 4.3) that they did not know sex between siblings was against the law? In what context was it said? Rather, this is the opinion of Ms Castles, based on the matters she has set out in that part of her report headed “Attitudes & family response to the offence”. The closest support for Ms Castles conclusion comes at par 2.10 when the offender makes a remark about knowing “what the laws were”. Overall the passages in this part of the report reflect a family in denial; see for example par 2.8. Of particular relevance of course is the attitude of the offender himself. I have noted above indications of his acknowledgement of doing something wrong; for example why else lure the child away to a shed. Further in the interview with Ms Castles there are indications to the same effect such as that if his grandfather’s father had found out there was fooling around going on with either his sister or his friend’s sister he would have got a good flogging. That would not occur in an environment where that was considered acceptable.

58. That is not to say there is not a degree of dysfunctionality about the environment in which the offender has been nurtured and raised. It is also unarguable that comparisons he makes between himself and animals are absurd and concerning. It reflects in my view a very immature person with less than the ordinary degree of social contact. It is a long bow to draw to take those comments and come to the conclusions so emphatically as has Ms Castle.

59. Returning then to the matters to be considered in accordance with BM and AA, can it be said that the environment in which the offender grew up is sufficiently extreme in its, for want of a better word, backwardness, or perhaps more appropriately put, in its asserted out of step state with commonly accepted society norms as to render him in some way impaired to a degree to enliven considerations of the type allowed for in Muldrock. The acknowledgement of the wrongdoing by the offender and the manner in which the offending was carried out and the ambiguity of his overall position which erode the basis of Ms Castle’s conclusions lead me to conclude, as noted above, that they do, but not to a marked degree.

60. The offender also relied upon some school documents including referrals to a school counsellor which notes that he is worried his father will try and burn down their house. These documents support the histories given to the various psychologists. There was a reference from the neighbour Mr Ryan referred to above who speaks fondly of the offender. The picture painted of the offender in that testimonial is consistent with the view I have formed of him. That is, he is a hard-working young but simple man. By simple I do not mean lacking in intelligence but unsophisticated. The two offences we are dealing with occurred on the one day in respect of an isolated young man with no sexual experience and little adult guidance, if any, on issues of sex.

61. The offender has been on conditional bail now since 27 October 2016, a period of more than three years with not a single suggestion of wrongdoing by him of any type. It is oversimplifying the situation given the very unfortunate and complex family dynamics in this man’s history, but it is to be hoped that if he did form some kind of adult peer group and engaged in the wider society the chance of reoffending would be minimal. This result can be further enhanced by seeking appropriate treatment which is better obtained in a juvenile justice arrangement than in a adult prison.

62. This would also mean removing the offender from his current environment. With all due respect to his step grandparents who have acted with good intent to raise him to remove him from circumstances of trauma and borderline if not actual abuse, the evidence overall and that of Mr Sheehan in particular, is that to offset or alter the current attitudes of the offender, and to better equip him to engage with society, leaving his current environment is desirable. Sadly the step grandparents have their own limitations and in the present circumstances in light of the offending do not provide the best location for the offender. Furthermore having the offender away from his grandparents would necessarily mean further away than 200m from the victim. The cases recognise the harm done to children by this type of abuse and the prospect of a court sanctioning the continued presence of the offender in the community so close to the victim is undesirable to say the least, though I acknowledge a non- custodial outcome could be on conditions that relocate the offender.

63. I note the further note from Mr Ryan setting out in some more detail what the offender has been doing in his period on bail. The efforts of the offender to remove himself from the prospect of meeting the victim on Christmas Day on two consecutive years is to his credit and shows a degree of insight other material would suggest is lacking.

64. The last documentation that needs to be considered are as series of reports from Juvenile Justice. The first is dated 26 February 2019. Information was gained from the offender, his mother, a school employee, the step grandmother and grandfather, school reports and department records. The personal history is largely in line with that recounted above. The grandparents state their dependence on the offender. The offender attended primary school A until year three and then School B until year nine and ultimately left school in year 10. He received a number of awards at school and whilst there was concern for his reading at one point, it appears that the offender did not have a learning disability and was engaged at least at times with his schooling. Indeed his results and the teachers comments for the year 2015 were positive. It confirms a fairly minimal social circle and a lack of interest in alcohol and drugs. He enjoys living and working on the farm. The report states that both the offender and his grandparents acknowledge he had some issues with anger though his mother was unaware of this and I note there is no suggestion of anger as being a part of the offending.

65. The offender was polite and respectful throughout each interview and indicated a preparedness to be compliant with any community-based order and showed a healthy respect for authority and a natural desire to meet his obligations.

66. A sex offender specific assessment was conducted by Justine Guttridge. Although the offender is above the age recommended for this assessment the assessment was carried out as a guide to consider the offender’s intervention needs in relation to his offending behaviour. The key points of that assessment were summarised in this report and were as follows:

1. a stable and supportive family during his formative years. I consider this an odd thing to say given the obvious dysfunction in the family as noted in other evidence and in the assessment itself in the next line with its reference to domestic violence and the parents separating. The request of a three-year-old to live with step grandparents itself is something of an unusual feature. More accurately the assessment notes the offender has lived a sheltered life in a rural community.

2. Minimal issues with schooling and no mental health issues.

3. Minimal peer relationships.

4. Hard worker but somewhat socially isolated.

5. It describes the offending as an opportunistic act with which I disagree but then describes it as exploring sexual learning which may have some validity. Consistent with the report of Mr Sheehan it notes the minimisation of the offending by the offender though I would also note the remorse he has expressed as recorded above.

1. The exploration of sexual behaviour with the younger half sibling avoided the need to interact with other females his age which he may struggle to do. His sexual inexperience and state of sexual development may have also distorted his view of the victim’s behaviour. I consider that even if a seven-year-old was “flirting” or behaving in a precocious way, which seems to be the suggestion, the wrongfulness of the offending conduct is undiminished, and further the lack of realisation on the part of a 16-year-old that a child of 7 most likely does not appreciate the nature of such behaviour emphasises his need for treatment.

2. Perhaps more significantly it is stated “he’s inability to articulate genuine remorse or guilt for his actions likely stem from his belief that he had been pushed into offending against the victim as a result of his perception of her demanding and sexual behaviour towards him. He appears to have a general propensity for social insensitivity as noted in formal testing which may have resulted in an inability to appropriately understand the consequences of his actions on the victim. In addition he assumed he did not require treatment or intervention regarding his behaviour as he believed the victim had caused the offence to happen”. I would also add my observation just made namely he also has an inability to appropriately understand the actions of the victim said to have occurred in the lead up to the offending. There is in this case a great need to educate this offender.

67. The first juvenile justice report (dated 26 February 2019) identified the offender as being eligible to be sentenced to a community-based order. I have discussed what is now the agreed position as to the legislative provisions relating to the available sentencing options above. The report concludes by identifying treatment plan recommendations. The areas for intervention include his inability to identify risk factors, his minimisation and lack of responsibility for the offence, his lack of remorse for his actions and his distorted thinking regarding the victim. To that I would add a need to better socially equip the offender, to ultimately seek to increase his degree of involvement in the community and counselling as to social and sexual boundaries in terms of both age and relations. The report does not indicate the availability of such treatment within the juvenile justice system if detention was ordered.

68. A supplementary juvenile justice report was prepared dated 3 April 2019. It was prepared to address section 19(4) CCPA and what educational vocational training or therapeutic programs are available in detention centres and whether such programs suitable for the offender are available in correctional centres. The distinction of course is a detention centre is a juvenile facility and a correctional Centre an adult prison. The circumstances in which this offender may be placed in a detention centre have been discussed above.

69. The programs available in a juvenile justice centre include “Love bites” a domestic and family violence and sexual assault prevention program, a “Try to reach your potential” program, and a grounds maintenance mowing and gardening program. In a correctional Centre there are different programs on offer. The report states that being a sex offender there is a high likelihood of the offender being placed on protective custody and to be a person placed in a protection Limited Association area. Access to programs and vocational training becomes problematic in this circumstance and do not become available towards the end of the sentence. Just what programs are available in the correctional centres is not stated

70. This report attaches a letter from Justine Guttridge dated 28 March 2019 and a second letter of Amy Press, a senior psychologist concerning custody based sex offender programs written earlier on 13 March 2019. The 13 March letter refers to sex offender programmes available in a correctional Centre. To be eligible for such programs the sentence needs to be three years or greater. The more appropriate course for this offender is the moderate intensity sex offender program, a conclusion I reach based on his level of risk of reoffending. Currently (that is, at the date of the report) no such programs are running in correctional centres New South Wales but it was anticipated they would have commenced by late March or early April 2019.

71. The 28th March letter summarises therapeutic programmes available in both adult correctional centres and juvenile detention centres. It states that in juvenile justice young people with sexual offences are referred immediately for treatment post sentencing without any wait time. It involves individual counselling and not group therapy and is tailored to the risk factors and intervention needs identified during assessment. The treatment can continue for the length of the sentence and is provided in line of the complexity of the offender’s needs.

72. The services available in correctional centres require a referral by admissions staff or justice health or the inmate or the programs officer which is then triaged by psychology in order of priority. There is therefore the potential for a delay in such services which is not a risk in juvenile justice and there is also a risk of treatment not occurring at all in corrections centres.

73. This evidence clearly shows that from a treatment point of view it is far preferable that the offender should he serve a custodial sentence serve it in a juvenile detention centre and not a correctional Centre.

74. The most recent report of juvenile justice is dated 20 November 2019. On 19 November 2019 there were telephone interviews with the offender, the step grandmother, and discussions with Justine Guttridge referred to above and also Dane Sinclair an assistant manager of youth Justice Lismore.

75. This report states that if a community corrections order was made the youth justice agency will be able to provide offence focused intervention by Ms Guttridge.

Submissions and discussion

76. The offender’s submissions rely on circumstances of childhood deprivation as matters in mitigation in the sentencing exercise. Such considerations apply even where it is not the case that such deprivation has been causative of the offence to any degree. There is a “differential diagnosis” of PTSD by the school counsellor who is a registered psychologist, Mr Stahnke. No such diagnosis is put forward by Dr McSwiggan nor Mr Sheehan. In regard to the report of Dr McSwiggan, this may well be because its purpose was to assess the offender’s fitness to plead. In regard to Mr Sheehan, he notes the Stahnke report, but interestingly interprets it as referring to PTSD symptoms. The ultimate opinion of Mr Sheehan is the offender’s background is atypical but not one of gross social deprivation. My view is that regardless of whether or not there is a formal diagnosis of PTSD the childhood circumstances of the offender are traumatic. For reasons already discussed I am not persuaded that they were causative of the offending other than to a minor degree, and this being primarily due to the offender being raised in circumstances of social isolation and of rejection. The offender’s submission at paragraph 18 notes the comments of Mr Sheehan of social inhibition and inexperience with age-related peers and distorted views of victims sexual responsivity, in support of the “causal” argument. Yet Mr Sheehan at par 22 of his report says these features “would seem likely” to “may be relevant features in his case” (my underlining). My conclusion is in line with these guarded comments.

77. For the reasons set out above my view is that the offender knew what he was doing was wrong. That does not mean that the factors just mentioned cannot be causative of the offending but it does indicate that the circumstances relied upon were not so strong as to remove or deny the offender from a knowledge of what was right and what was wrong. The question becomes almost philosophical; there are always things that are causative of what humans do whether it be greed, inexperience or recklessness. Ultimately my view is this offender did what he did because he wanted to do it. The offender’s background perhaps made it more likely for it to occur and I do take that into account but my view is far these factors are from exculpatory. In short the factors being discussed lessen objective seriousness in the manner discussed above, and impact on moral culpability but not to a marked degree. They are otherwise relevant matters to take into account in sentencing considerations.

78. Next the offender relies on family hardship in the event of incarceration. The forked position of this submission is that the offender seeks to remain in the very environment which he relies upon as being the asserted cause of his offending. My view is that whatever the outcome in this case it is necessary for the offender to gain some perspective of life beyond the environment in and the farm on which he has been raised.

79. The offender’s submissions go on to address section 19 CCPA. That submission is made in the alternative to a non-custodial sentence. The Crown does not argue against an outcome utilising section 19 and in fact as outlined above has advocated for a non-parole period that will ensure utilisation of section 19 is possible. The evidence of the Juvenile Justice reports set out above show that s 19(4) is satisfied and I so find.

80. The offender has also helpfully set out some principles relating to the sentencing of young offenders. I note the reference to R v Elliott and Blessington (2006) 68 NSWLR 1 and the proposition that adolescents do not possess the same development level of cognitive or psychological maturity as adults. That concern is very apt for the present case. As noted in KT v R [2008] NSWCCA 52 it was said that considerations of general deterrence and principles of retribution are in most cases of less significance than when sentencing an adult for the same offence. Emphasis is also placed on the need to provide an opportunity for rehabilitation.

81. I note also the applicability of the principles set out at s6 of the CCPA, which remain applicable when a child is being dealt with at law; see Paul Campbell v R [2018] NSWCCA 87 at [26]. Those principles emphasise the role guidance and assistance are to play in sentencing children, and to facilitate their reintegration into the community. It also includes that consideration is to be given to the effect of the crime on the victim.

82. The offender relies on numerous mitigating factors under section 21A CSPA. He has no criminal record. He is a person of good character. I have already noted the comments of Mr Ryan. I accept the submission that the offender is unlikely to reoffend. There is evidence to support a finding of remorse which I do find albeit somehow wrapped in the ambiguity generated by the environment so much discussed. That is, whilst remorse is expressed the offender also makes remarks supporting the opposite conclusion. Such comments need to be viewed against the offender’s level of maturity. Overall I accept there is remorse. I note also that whilst the plea of guilty was not made until the day of the trial, the plea nevertheless retained some utilitarian value. I accept the submission for the offender that the discount be 10%.

83. The offender asked that I treat the matter as effectively one episode of criminality occurring in a short period of time on the same day. I do not accept that submission for the reason that to treat them as one offence does not recognise the criminality of both offences. Whilst it can be said the offending occurred over a very short period of time i.e. within the one day there were two separate occasions in which this offender sexually assaulted a seven year old girl. The situation is not one of the two offences occurring on the one occasion in the shed. There were two separate occasions of entering the shed to enable the offences to occur. That said, the sentence to be imposed will contain a degree of concurrency to reflect the fact of the period of offending being limited to one day.

84. The ultimate decision in this matter is not an easy one. There is a basis as is argued by the offender that he is a victim of his circumstances. The offender’s parents and his stepfather have failed him. His step grandparents have sought to step into the role of caring parents. Regrettably their life experiences and attitudes have not properly instilled in the offender the degree of awareness of society’s norms and standards as may have been hoped.

85. The point of difference between the view I take of these matters and that argued for by the offender is that their impact is not as marked in either a causative sense, nor overall in sentencing considerations as has been contended.

86. There is not a marked difference between the offender’s submission as to the objective seriousness of the offending and the findings that I have made

87. I take into account the matters relied upon in mitigation as argued for by the offender in the manner discussed above.

88. It needs to be remembered that the maximum sentence for each offence is life imprisonment. I acknowledge that is to be utilised as a guidepost, and that every case needs to be determined based on its own facts and circumstances. The offending, in particular count 1, is of the most serious kind. Whilst general deterrence has a lesser role to play in this case, there is a clear need for specific deterrence. At the same time, in keeping with s3A of the CSPA, and s6 of the CCPA, the youth of the offender not only is a matter attracting appropriate leniency, but there is also emphasis to be placed on the giving of assistance and guidance.

89. Ultimately, my conclusion is that in all the circumstances of this case the appropriate penalty is incarceration in a Juvenile Justice Detention Centre. This both properly reflects the appropriate punishment in a way that is proportionate to the crime, and also, based on the Juvenile Justice reports, best enables the treatment and counselling required by the offender. The alternative, of imposing a CCO in respect of one offence and a Children’s Community Service order in respect of the other, in my view is not proportionate to the offending. Even if the offender was able to be relocated away from the farm (and the victim), I would maintain this view.

90. I propose proceeding by way of an aggregate sentence. Due to the principles applicable to children offenders, these sentences will be markedly less than if the offender was an adult at the time of the offending. The indicative sentence for count 1, being the count of penile / vaginal intercourse, is 2 years. The indicative sentence of count 2, the count of digital intercourse, will be 1 year. The aggregate sentence shall be 2 ½ years. The sentence is to be served in a juvenile detention centre as I have found the special circumstances required by s19(4) CCPA, as conceded by the Crown. There will be a non parole period of 15 months, expiring on 2 March 2021, and thus enabling the sentence to be served in a Juvenile Detention centre, and also representing a minimum period of incarceration as I consider necessary to reflect the seriousness of the offending.

91. The non parole period is at variance to the statutory ratio expressed in s44. In addition to the special circumstances identified under s19 of the CCPA, I also find special circumstances under the CSPA, specifically the age of the offender, the fact this is his first time in custody, and his need for ongoing supervision in the community to assist any treatment and counselling to promote rehabilitation.

ORDERS

92. KL, of the two offences on the indictment you are convicted.

93. I impose an aggregate sentence of 2 ½ years imprisonment commencing today 3 December 2019 and expiring on 2 June 2022. I have set out the indicative sentences above.

94. I impose a non parole period of 15 months, commencing today, 3 December 2019 and expiring on 2 March 2021.

95. The sentence is to be served in a Juvenile Detention facility.

96. The earliest date for release is 2 March 2021.

97. I note the intention of this sentence includes to enable the offender to have the benefit of the programmes detailed in the reports prepared by Juvenile Justice and referred to in these reasons.

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Decision last updated: 05 December 2019