R v LP

[2020] NSWDC 346

District Court

New South Wales

Medium Neutral Citation:

R v LP [2020] NSWDC 346

Hearing dates:

21 February 2020

Date of orders:

3 July 2020

Decision date:

03 July 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

Aggregate term of imprisonment of 3 years, 3 months. For orders see [72]

Catchwords:

SENTENCING — Penalties — Aggregate term of imprisonment – Sexual intercourse with a child – Offender between the age of 15-17 for the majority of offences – Youth of the offender as a sentencing consideration – Significant mental health issues – No prior criminal record

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application (No 1) (2002) 56 NSWLR 146

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Muldrock v The Queen (2011) 244 CLR 120

R v Israil [2002] NSWCCA 255

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

Watts v R [2007] NSWCCA 153

Markarian v The Queen [2005] HCA 25

Category:

Sentence

Parties:

Regina (Crown)
LP (Defendant)

Representation:

Mr A Barnes (Crown)
Ms C Doosey (Defendant)

File Number(s):

2018/0039281

Publication restriction:

Non publication order on the names of the complainants or any information that may identify them. Suppression order on the name of the offender.

Judgment

1. The offender LP, born in March 1998, is before the court for sentence for 7 offences. The following offences took place when LP was a child within the meaning of the Children (Criminal Proceedings) Act 1987 (the Children’s Act). Counts 1, 5 and 6 are that he had sexual intercourse with a person between the ages of 10 and 14 for which the maximum penalty is 16 years. There is no standard non-parole period because of the effect of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), as the entirety of this offending took place, on the balance of probabilities, when the offender was not yet 18 years of age. Counts 2 and 3 are that he committed aggravated indecent assault with a child under the age of 16 years for which the maximum penalty is 10 years, and for which there is no standard non-parole period because of the effect of section 54D(3) of the Sentencing Act. Count 4 is that he had aggravated sexual intercourse with a person aged between 10 and 14 for which the maximum penalty is 20 years, and for which there is no standard non-parole period because of the effect of section 54D(3) of the Sentencing Act. Counts 1 to 6 occurred while the offender was between the ages of 15 and 17.

2. Count 7 took place when the offender was 19 years of age. The charge is that he committed an act of indecency with a person under the age of 16 years, for which the maximum penalty is 2 years. There are also matters on the Form 1 which the offender asks me to take into account when sentencing him for count 7 which are two charges of commit act of indecency with person aged under 16.

3. The offender is now 21 years of age.

4. It was agreed between the parties that offender should be sentenced according to law within the meaning of the Children’s Act, and that only section 6 of that Act has application in the present case (and only with respect to counts 1 to 6). That provision 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.

5. Whilst I note that the offender was a child when he committed the offences the subject of counts 1 to 6, the events the subject of count 7 and those on the Form 1 occurred when LP was a very young adult.

6. I was assisted by the thoughtful written and oral submissions of Ms Doosey on behalf of the offender and Mr Barnes on behalf of the Crown. Issues between them were narrow and overlapped to a large extent. There was no dispute that the threshold of section 5 of the Sentencing Act was crossed, and that only a full-time custodial sentence is appropriate. It was also conceded by the Crown that if sequence 7 had been isolated, the section 5 threshold would not have been crossed.

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

Background

1. The first victim, OD, resides in the south coast of New South Wales. She was born in March 2005.

2. The second victim, OP, resides next door to OD. She too was born in March 2005.

3. OP is the biological sister of the offender.

4. OD and OP were best friends at the time of the offences.

5. The offender, LP, resided at the same premises as his sister. The offender was born in March 1998.

Context – offences not committed in isolation

6. In a disclosure, OP told her school principal that when she was 7 or 8 years old, the offender “did stuff to us” and made her “touch his thing”. OP disclosed that the offender threatened her and OD not to tell anyone about what happened.

7. OP disclosed to police that the offender would make her touch his penis from the age of 7 to the age of 10. OP said that the offender would “force” her and OD to rub or touch his penis “every time” OD “was over” by cornering them near a shed in the backyard.

8. OP disclosed to police that the offender touched her on the vagina on three or four occasions between the age of seven and nine. OP could not particularise where or when these incidents occurred.

9. In a disclosure, OD told her mother that when she was eight years old she walked into OP’s living room and saw the offender watching the big television masturbating. OD told her mother that the offender continued to masturbate until she saw “white stuff coming out of his penis.”

10. Sometime between 28 March 2014 and 27 March 2016 when OD was aged about 10 years of age, OD and OP were sitting on a rock ledge behind a shed in OP’s backyard. At this time the offender was aged between 16 and 18 years old, but was not yet 18 years of age.

11. The offender approached the victims and forcefully pushed OD on to her back. The offender placed his elbow on OD’s stomach to hold her down and used his other hand to touch her vagina. The offender then inserted his finger into OD’s vagina for about 10 seconds.

12. With OD on the ground, the offender attempted to place his mouth on her vagina. OD kicked the offender and prevented this from occurring.

13. OD told the offender to stop. OP, who was also present, screamed at the offender to stop and attempted to pull the offender away.

Count 2 – Aggravated indecent assault (OD) – s61M(2) Crimes Act

Count 3 – Aggravated indecent assault (OP) – s61M(2) Crimes Act

14. Sometime between 28 March 2016 and 27 May 2017, OD was swimming in the pool at the offender’s house with OP. OP was aged between 10 and 11 years old. OD was aged between 10 and 11 years old. The offender was aged between the age of 17 and 18 years old, but was not yet 18.

15. The offender called to the victims from outside of the pool area and told them that he needed their help. The offender then led the victims out of sight of the home to a bush area behind a shed.

16. Once out of sight, the offender threatened to burn the victims with a cigarette lighter if they did not touch his penis. OD told police “he made us touch his penis and, um, we didn’t want to. We tried to refuse but, again, he, like, um I didn’t say this yet actually, he threatened us”. “He said he would get his cigarette or his lighter and stab it into our skin”. The victims took turns stroking the offender’s penis.

17. The victims attempted to leave the area, but the offender blocked them with his arm. OD attempted to scratch the offender but could not escape. The offender threatened the victims and said, “You’re looking forward to a smiley (the use of a hot cigarette lighter to burn the skin)”.

18. The offender lowered his pants exposing his penis and testicles. OD bent her knees slightly and used her hands to hold the offender’s penis and rub it in an up and down motion.

Count 4 – Aggravated sexual intercourse – child aged between 10 and 14 (OP) – s66C(2) Crimes Act

19. After about a minute, the offender turned to OP and said, “Come over.” OP reached out to the offender’s penis with her hand. The offender said, “No, your turn to suck it.”

20. OP knelt down and the offender put his penis in her mouth. The offender pulled on OP’s ponytail to forcefully move her head back and forth along his penis.

21. After about five minutes, the victims managed to escape.

Count 5 – Sexual intercourse – child aged between 10 and 14 (OD) – s66C(1) Crimes Act

22. Sometime between 28 March 2016 and 27 May 2017, OD was at her home in the backyard with OP. OP was aged between 9 and 11 years old. OD was aged between the age 10 and 11 years old. The offender was aged between the age of 17 and 18 years old.

23. At some point during this period, the victims were swimming in the pool. The offender approached the victims and took them behind the shed at the rear of the property with the offender.

24. The offender stood in front of OD. The offender made OD kneel down and suck his penis. After about two minutes, the offender moved OD’s head and removed his penis from her mouth.

Count 6 – Sexual intercourse – child aged between 10 and 14 (OP) – s66C(1) Crimes Act

25. The offender then sat on a nearby ledge and directed OP to suck on his penis. P then placed the offender’s penis in her mouth. The offender placed his hands on the back of the second victim’s head and pushed her head along his penis

26. After about two minutes, the offender heard his other sisters approaching and the victims left. The offender told the victims to “act natural.”

Commit act of indecency (OD) – s61N(1) Crimes Act – Form 1

27. On the afternoon of Tuesday 10 October 2017, OD was riding her motorcycle in her large backyard at her home. The victim was 12 years old. The offender was 19 years old.

28. Whilst she was doing a lap of the backyard, the victim saw the offender sitting on a pile of tin watching her.

29. As she came closer on her motorcycle, the victim saw that the offender’s pants were down to his ankles and he was masturbating.

30. OD got off her motorcycle and went inside her home. OD immediately told her mother about the offender’s behaviour.

Commit act of indecency (OD) – s61N(1) Crimes Act – Form 1

31. On the afternoon of Wednesday 11 October 2017, OD was riding her motorcycle in her backyard. The victim was 12 years old. The offender was 19 years old.

32. Whilst she was doing laps of the backyard, OD saw the offender sitting on a pile of tin in his backyard watching her.

33. OD saw that the offender’s pants were again down to his ankles and he was masturbating.

34. The victim rode her motorcycle for about 10 minutes. The offender continued to watch her and masturbate during this time.

35. OD then got off her motorbike and went inside her home. OD immediately told her mother about the offender’s behaviour.

Count 7 – Commit act of indecency (D) – s61N(1) Crimes Act

36. On Thursday 12 October 2017, OD was riding her motorcycle in her backyard. The victim was 12 years old. The offender was 19 years old.

37. The victim had completed approximately two laps of her backyard when she saw the offender sitting down in his backyard watching her.

38. On her third lap, the victim saw the offender, standing close to the boundary fence with his pants down to his thighs as he masturbated towards her.

39. OD continued to ride her motorcycle. Each time she rounded the corner, she could see the offender masturbating in her direction getting closer to the fence separating the two properties. This made the victim feel “Weird. Like it made me feel scared.”

40. After about ten minutes, the victim got off her motorcycle and went inside her home.

41. The victim immediately approached her mother and told her about the offender’s behaviour.

OD’s Disclosure

42. When OD was about eight years of age, she disclosed to her older sister that the offender had asked if he could see both her and OP’s private parts while they were playing together.

43. Some months later, when OD was about eight or nine years old, she disclosed to her sister that she and OP had been sexually abused by the offender. In that disclosure, OD told her sister that, “LP would make her put her mouth on his penis and make his sister OP watch, and he would make them swap and make them take turns in watching each put his penis in their mouths.” OD further told her sister that the offender would threaten to give her a ‘smiley’ with a cigarette lighter.

44. On 27 May 2017, OD disclosed to her sister and her friend that she and OP had been sexually abused by the offender.

45. On 19 October 2017, OD disclosed to her classroom teacher that she and OP had been repeatedly sexually abused by the offender. OD told her teacher that she thought the abuse was ‘normal’ and had asked her mother why her own brother did not act in the same way.

46. OD was then taken to the principal’s office, where she repeated the disclosure.

47. The principal and the teacher then contacted the Child Well Being Unit.

OP’s Disclosure

48. Later that day, OP made a disclosure to the principal and the teacher. OP told her teacher that when she was about eight years old, the offender “did stuff to us and made us touch his thing.” OP stated that the offender had not touched me since I was 10 or 11 years old.”

49. Following that disclosure, the principal contacted Family and Community Services.

50. On 20 October 2017, the victims were interviewed by the Child Abuse Squad.

Police Interactions with the Offender

51. On 20 October 2017, the offender was served with an Apprehended Domestic Violence Order, listing the victims as protected persons.

52. On Thursday 13 March 2018, the offender attended the police station with his father where he was arrested and cautioned.

53. The offender participated in an electronically recorded interview but declined to comment in relation to allegations put to him by police.

54. The offender was charged.

55. I note that it was conceded by the Crown at the hearing, that the age of the victims was no less than 10, and I disregard anything in the Agreed Facts that suggests otherwise. I note too that none of the counts are serious children’s indictable offences.

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 indictment;

3. The Form 1;

4. The statements of facts; and

5. The offender’s criminal history.

9. The balance of the evidence is the offender’s subjective case. Exhibit 2 is a Confidential Background report dated 12 February 2020 prepared by Juvenile Justice NSW.

10. Exhibit 3 is a psychologist report dated 12 February 2020 by Dr Sarah Van De Velde.

11. The offender’s father gave extensive evidence before me on 21 February 2020, and was cross-examined by the Crown.

12. No impact statements were given. The offender’s family was present in court, including the offender’s sister OP, who is one of the victims.

13. I will now summarise some of the documents which have been placed before me. I propose to highlight and quote a number of important elements in these documents.

Exhibit 1

14. At the time of the offending, the offender had no criminal history.

Exhibit 2

15. The Juvenile Justice Report was prepared after 4 interviews with the offender, and multiple interactions with the offender’s parents and his psychologists. The offender is the oldest in a sibship of four. The report notes that until about the age of 15, LP presented with no problematic behaviours. Thereafter, LP had behavioural changes, including anger and isolation. On 20 October 2017 LP was served with a two-year AVO in relation to the current offence, which lapsed in October 2019. After he was charged, LP was offered a place to rent by his uncle, where he still resides living in relative isolation. LP speaks to his family but finds it difficult to attend family gatherings due to the pain and suffering he has caused.

16. LP attended high school until the last term of year 9, when he was permitted to leave on the condition that he obtain employment and training. He has had a chequered employment and training history since leaving school and is not currently employed.

17. At high school, LP reported having limited social connections and that he was easily influenced by his peers which led to regular drug taking. LP reported to using cannabis daily and selling it to support his habit. At age 15, he reported to sniffing petrol daily for several months. LP was in a sexual relationship at about age 17, during which time he experimented with “sniffing aerosol/deodorant”. The relationship ended because he “loved weed more than the girlfriend.” More recently LP reported having experimented with the use of stimulants and LSD. He reported the use of alcohol from age 10 to the present day. He reported ongoing problematic use, consuming up to two litres of wine daily or “every couple of days” during the past year. He also smokes cigarettes daily. At the time of the offences, LP admitted to being under the influence of cannabis. At the time of the last offence he had used LSD and cannabis.

18. In February 2018, LP applied for Triple Care Farm (rehabilitation) but was not accepted due to this offending. He is not currently engaged in community activities and has limited leisure and recreation pursuits.

19. LP reported to have been diagnosed with Anxiety, Depression and Bi Polar Disorder. At the time of the assessment, no confirmation of these diagnoses had been received. LP reported self-harm and cutting from age 15 and burning himself from age 19. He has had suicidal thoughts from a young age but no present suicidal ideation. LP reported that he was prescribed Seroquel and Fluoxetine in 2018 for Bi Polar and Depression. Currently, he refrains from taking these medications, all of which was confirmed by the offender’s mother. He further reported episodes of rage. Ms Van de Velde’s diagnosis (see below) was noted.

20. The report writers are of the view that LP displayed adequate levels of remorse. He stated that “it’s all my fault, they were too young to understand. I have destroyed the girls and my family, I would never do it again. 100% never do it again.” He accepted full responsibility for the offences, which is mirrored in his guilty plea. At the time of the offending, LP did not consider the question of consent. In hindsight, he is now fully aware that the age of consent is 16.

21. The report writers note Ms Van de Velde’s extensive treatment plan.

Exhibit 3

22. Ms Van De Velde assessed the offender in person on 28 November 2019 and in a further phone interview on 5 December 2019. In addition, she completed twenty-minute phone interviews with LP’s former psychologist, and his current psychologist.

23. Ms Van De Velde is of the opinion that LP is suffering from the following disorders:-

1. Alcohol Use Disorder, severe

2. Cannabis Use Disorder, severe

3. Generalised Anxiety Disorder; and

4. Major Depressive Disorder recurrent episode, severe.

He is also suffering from trauma-related symptoms.

24. During the period of the offences, he was in conflict with his parents, and was engaged in illicit substance abuse, including daily cannabis use, and “petrol, speed, LSD, MDMA… I think I was high every time.” He had difficulty recalling his thought processes at the time due to his substance abuse. In regards to the most recent offence (2017), LP stated he had consumed lysergic acid diethylamide (LSD) for two days prior and two “tabs” on the day of the offence. He reported ongoing problematic use of alcohol in the past and stated that his drinking was “a bit of a problem, but ok” at present.

25. In November 2019 the AVO against him was lifted, and LP said that he and OP now spend time together as a family, reporting that their relationship “is not too bad”. LP stated that at present he lived alone with his dog in his uncle’s rental property. He does not work and noted a difficulty in considering future employment due to fears he will be incarcerated upon sentencing.

26. LP reported that he first experienced depression at age fifteen years. He reported current symptoms of depression, isolating himself and ruminating about the offences. He described a history of self-harm from the age of sixteen. He reported two attempts to end his life after his arrest. He described recurrent, ongoing suicidal ideation, but denied current suicidality. He further reported experiencing anxiety from the age of sixteen. From 2017 he began to experience recurring memories or flashbacks of his offending behaviour. He described shame, depression and distress when this occurred and, abusing alcohol, withdrawing and experiencing suicidal thoughts at these times. There was insufficient information from which to conclude a diagnosis of Posttraumatic Stress Disorder (PTSD).

27. Ms Van De Velde is of the view that LP expressed shame and regret with regard to his behaviour but indicated limited understanding of his offending and the need for treatment of offending behaviour and substance abuse. Her assessment of LP’s protective factors indicate that the following factors may reduce his risk: his empathy towards his victims, his motivation to avoid future offending and his supportive family network.

LP’s father’s evidence

28. In evidence before me, the offender’s father confirmed that LP had a supported upbringing and showed no signs of concern until he was in year 9 (at about 15 years of age). He left school, originally worked in landscaping as an unskilled labourer, but he was unable to cope with the physicality of the job and ended his employment.

29. LP’s father confirmed that LP had a social network at school, but that it deteriorated in year 9 and he became socially isolated. Around this time LP’s father became concerned that LP was using illicit substances. He now understands that this was more extensive than he initially realised. LP’s father stated that he and his son had several confrontations over drug use and he attempted to get LP outside help. In year 9, LP attended Headspace and then Crossroads. Both practices had a high turnover of counsellors and staff, so LP struggled with forming personal bonds. When he was approximately 18 years old, LP was moved out of the family house because of his behaviour, but after 6 months he returned home.

30. LP’s father said that the family only became aware of the offending years after it happened. However, once the disclosures were initially made, there was a cascade of disclosures. He stated on several occasions that supporting and protecting his daughter was paramount, and that he and his wife facilitated OP going to the police and making a statement. As a result, an AVO was put in place, and LP had no contact with OP for 2 years (until October 2019). LP’s father described the turmoil in his family, and in particular trying to assist his son who has not lived with the family since October 2017. He and his wife have continued to support LP in the legal process.

31. LP’s father believes that LP has matured substantially over the past two years since he has been charged, and since he has moved out of the family home. He believes this is demonstrated by LP caring for his own house, and looking after his pets and himself. LP’s father observes that before the charges, LP was very immature, with little regard for his own safety or the safety of those around him. After being charged, LP tried to access assistance, originally through Triple Care Farm rehabilitation centre (into which he was denied entry) and later through a referral to sexual offending counselling. The latter materialised, but was more focused on LP's imminent gaol sentence rather than the sexual offending. The family has been supportive of these initiatives, catching the train with LP and funding the programs. LP’s father believes that LP is motivated and committed to the treatment and he now attends independently.

32. LP’s father understands that LP will go to an adult gaol. He remains supportive of LP, and stated that his intention is that LP will re-join the family upon his release, at least in a limited fashion. He hopes that LP will be monitored and counselled during incarceration, and upon his release. Through tears, LP’s father articulated the impossible situation his family finds itself in, and his ongoing paramount concern for OP.

33. Describing his current relationship with LP, LP’s father stated that they are reconnecting. LP now has occasional contact with the family, including OP, who wishes this to occur. LP’s father said that he and his wife have had to suppress their own distress to support their children. They have received both family and individual counselling. LP’s father said that LP has continually expressed remorse about the damage and harm he has caused, and accepted that he has caused ongoing harm to OP and OD. LP’s father also said that if OP changes her position, and is not comfortable with LP in her presence, the family would respect her wishes. All interactions to date have been respectful of OP’s wishes. It was with OP’s consent that the family was recently brought back together. This happened very gradually, beginning with small amounts of time that were initially very awkward.

34. In cross-examination, Mr Barnes asked about the wellbeing of OP. LP’s father said that OP had been extensively counselled until about 6 months ago. LP’s father has tried to initiate conversations with her about the offences, but she has preferred not to talk about them. He says that over the past years her behaviour has changed. She has matured and grown-up, as she is now almost 15, and is capable of expressing her thoughts and speaking her mind. He said that it is hard to tell the impact that the offending has had on her. However, she had difficulties speaking with police, and wants to put the offending out of her mind. He observed that the breakdown of the family unit has greatly impacted her. LP’s father agreed that the impact of the offending may not materialise until OP reaches adulthood.

35. I found LP’s father to be a candid witness. Indeed, it was difficult not to be moved by his struggles as a parent, dealing with the events of the last several years, and the stress that it has put on his family.

Objective seriousness

36. The Crown submits that the overall offending is of significant gravity, and that the offending against OP involved an abuse of trust by an older sibling.

37. Whilst the age of the complainants is a crucial factor in the assessment of the gravity of the offending, it is conceded by the Crown that the offender is entitled to the presumption that the victims’ ages were at the upper end of this range for the offence itself. The Crown further concedes that none of the charges allege that either of the victims were less than 10 at any time of the offending.

Count 1 – Sexual Intercourse (Digital Penetration) (OD):

38. The act was one of digital penetration. The victim was in a vulnerable position, being no older than 10 years of age. The offender used force on the victim, pushing her onto her back and holding her down. The offending also took place in the presence of another child (OP). The offender was about 7 years older than the victim. The act was of limited duration (10 seconds). The Crown submits that offending appears to be opportunistic, but that is should be viewed in the context of the overall offending. The offending took place at a location where OD was entitled to feel safe. In respect of count 1, the Crown submits that this offending is at the lower end of the mid-range.

Counts 2 and 3 – Indecent Assault of OD and OP:

39. The Crown submits that the conduct constituting the offence was skin on skin contact with the offender’s genitalia, and that there is evidence of some planning. The offender led the victims to a bush area that he knew would be out of sight. There were threats of actual bodily harm with the cigarette lighter. There was blocking of attempts by the victims to leave the area. The offences against each of the victims took place in the presence of the other victim. The age of the victims was closer to 10 years of age, rather than 16 years of age. The offending took place at one of the victim’s homes and at a place where both victims should have been entitled to feel safe. The Crown submits that this offending falls well above the middle of the range of objective seriousness.

Count 4 – Aggravated Sexual intercourse – (Fellatio) (OP):

40. This is a continuation of count 2 and 3 and has many of the same characteristics. The act is one of fellatio. There was actual force used on the victim. The duration of the act was about 5 minutes. The Crown submits that this offending is within the middle of the range for offences of this type.

Counts 5 and 6 – Sexual intercourse (Fellatio) (OD and OP):

41. The Crown submits that the offender took the victims to an area where he was unlikely to be detected which suggests some degree of planning. The age of the victims was closer to 10 years of age, rather than 14 years of age. The offence occurred in one of the victim’s homes and at a place where both victims were entitled to feel safe. The duration of the act was about 2 minutes in the case of both victims. In relation to the victim OP, the offending only ceased when the offender was at risk of detection by another sibling. There was force used on the victim OP. The offender placed his hands on the back of the victims head and pushed her head along his penis. The acts against both victims took place in the presence of the other child victim. The offender directed the victims to “act natural”. The Crown submits that this offending falls within the middle of the range for offences of this kind.

Count 7 and the Form 1 offences (Act of indecency – person under 16) (OD):

42. Although not as serious in the overall scheme of the offending, it was submitted by the Crown that these are serious offences for their type. The conduct is more serious given the history of sexual offending against this same victim.

Section 6 of the Children’s Act

43. The offender was a “child” as defined in the Children’s Act, at the time of most of the offending. The exception to this is count 7 and the Form 1 matters, these being committed when the offender was 19.

44. It was submitted by Ms Doosey that s 6(b) 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, and that these considerations assume a larger role in the formulation of sentence than the s. 3A Sentencing Act objectives. Specifically, she submits that considerations of punishment, denunciation and general deterrence may yield to enhancing the rehabilitation of youthful offenders.

45. The extent to which the offender’s youth (16 -17 years of age here) 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 has been explored by McClellan CJ at Common Law 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.

46. Although the offender does not have the benefit of section 6 of the Children’s Act when I consider his sentence for count 7, the Crown concedes that the offender is entitled to the benefit of youth in my consideration.

47. Ms Doosey contended that section 6(b) of the Children’s Act is primarily concerned with a child offender’s rehabilitation, and that the most efficacious application should be by way of an extensive non-parole period. She also submitted that the spirit of that Act will inform the length of the sentence and aggregation. None of this was disputed by the Crown. Ms Doosey also did not resile from the Crown’s characterisation of objective seriousness for each offence, but said that the focus on the ranges are more suited in cases where an offender is an adult. I agree with this submission.

Section 21A matters

Plea of Guilty

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

General Deterrence and Denunciation

49. Although it is conceded that the offending here is very serious, it was submitted by Ms Doosey that considerations of general deterrence and retribution are in this case reduced because of the lack of planning, the lack of consequential reasoning and the undeveloped sexual regulation of this youthful offender. The Crown concedes that there is a nexus between the offending, some degree of social isolation and drug and alcohol abuse. I agree that general deterrence has a limited role to play.

Mental Health

50. The offender was suffering from significant mental disorders at the time of offending, namely a severe depressive disorder, anxiety disorder and drug and alcohol misuse disorders. I note the alarming findings of cutting and suicidal ideation, which continue.

51. The combined effects of youth and the parallel mitigating factors associated with the otherwise discrete matter of the offender’s mental health are relevant, and may be found to lower the moral culpability of an offender, as compared to an unafflicted adult offender. In R v Israil [2002] NSWCCA 255 at [23] Spigelman CJ expressed the principle in these terms:

“To the extent that mental illness explains the offence —  as her Honour found to be the position in the present case — then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”

52. Taking into account all the evidence, I find that the offender’s moral culpability was significantly affected by his mental health and substance abuse issues, and I accept that it mitigates the sentence.

Personal Deterrence and Prospects of Rehabilitation

53. The report of Ms Van De Velde states that if LP were to re-offend, the most likely risk scenario would be that he continued to experience distress, negative emotions, failed to address impulsivity and aggression, continued to experience intimacy deficits, and continued to abuse substances and use poor problem solving to cope. An additional factor that may increase his risk, is if he has access to potential victims. She says that these risks can be managed.

54. Ms Van Velde also notes the significant protective factors which would reduce his risk of reoffending, namely his empathy towards his victims, his motivation to avoid future offending and, critically in my view, his supportive family network. Additionally, he may have matured somewhat. Treatment and supervision would increase his protective factors and likely reduce his risk for reoffending. I note that the Crown concedes that the offender has no underlying paedophilic tendencies.

55. I consider that there is objective and compelling evidence of the offender’s prospects of rehabilitation. The offender has actively sought treatment and appears committed to the continuation of that treatment. In addition, the ongoing support of his family is a very significant protective factor that weighs in favour of his eventual rehabilitation. I say this particularly in light of Ms Van de Velde’s conclusion, conceded by the Crown, that there is a nexus between the offending and some degree of social isolation combined with drug and alcohol abuse.

Remorse

56. The offender has taken full responsibility for the offending. He pleaded guilty immediately to the charges, notwithstanding an absence of clear memory of the details. He has consistently maintained his position of accepting what the victims say. That position remains evident in the confidential background report where LP is recorded stating that “it’s all my fault, they were too young to understand. I have destroyed the girls and my family, I would never do it again” and in the evidence of LP’s father, who says that LP has acknowledged the harm and damage he caused. I accept that the offender has shown consistent and appropriate remorse.

Prior Criminal History

57. The offender did not have a criminal record at the time of the offending.

Totality

58. 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.

59. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The Crown submits that there should be some degree of accumulation in recognition of the fact that there were several discrete episodes of offending, and that some further accumulation is called for to account for the fact that there are two victims. This is conceded by the offender. However, the Crown concedes that there ought to be a reasonable amount of concurrency between counts 2, 3 and 4 and between counts 5 and 6, and that there should be a less degree of concurrency with count 1, as it is a standalone offence. The same can be said about count 7.

58. 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.

Special Circumstances

61. Having regard to the youth of the offender, the need for prolonged, intensive rehabilitation, the mental health diagnosis of the “severe” disorders, that these are LP’s first offences and will be his first time in custody, and the effect of section 6 of the Children’s Act, I make a finding of special circumstances. I observe that the Crown does not disagree that I should make such a finding.

Threshold

62. Having considered all the possible alternatives, I am satisfied that the section 5 threshold has been crossed. Due to the seriousness of the offences, I find that no penalty other than imprisonment is appropriate. As I have said, no submissions were put otherwise.

Form 1 Matters

63. 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 Form 1 offending, although the focus remains on the primary offence. I have taken this offence 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.

Sentencing Approach

64. 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. There is also s 6 of the Children’s Act which must be taken into account. As so often occurs, but more so in this case, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions.

65. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 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.

66. 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 section 6 of the Children’s Act when sentencing for counts 1 to 6.

Sentence

67. In determining an appropriate sentence I have kept in mind the legislative guideposts of the maximum penalties for each offence.

68. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act (NSW). I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

69. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 3 years, 3 months.

70. As required by s53A(2)(b) of the Sentencing Act (NSW), the indicative sentences I would have imposed are as follows:

1. For count 1, namely sexual intercourse with a person aged between 10 and 14, I would have imposed a sentence of imprisonment of 2 years. Taking into account the plea of guilty, the effective sentence would have been 1 year, 6 months.

2. For count 2, namely aggravated indecent assault (child under 16), I would have imposed a sentence of imprisonment of 1 year, 4 months. Taking into account the plea of guilty, the effective sentence would have been 12 months

3. For count 3, namely aggravated indecent assault (child under 16), I would have imposed a sentence of imprisonment of 1 year, 4 months. Taking into account the plea of guilty, the effective sentence would have been 12 months.

4. For count 4, namely aggravated sexual intercourse with person aged between 10 and 14, I would have imposed a sentence of imprisonment of 20 months. Taking into account the plea of guilty, the effective sentence would have been 15 months.

5. For count 5, namely sexual intercourse with a person aged between 10 and 14, I would have imposed a sentence of imprisonment of 3 years. Taking into account the plea of guilty, the effective sentence would have been 2 years, 3 months.

6. For count 6, namely sexual intercourse with a person aged between 10 and 14, I would have imposed a sentence of imprisonment of 3 years. Taking into account the plea of guilty, the effective sentence would have been 2 years, 3 months.

7. For count 7, namely commit act of indecency towards person under 16 and taking into account the maters on the Form 1, I would have imposed a sentence of imprisonment of 4 months. Taking into account the plea of guilty, the effective sentence would have been 3 months.

71. I impose a non-parole period of 14 months. I have deviated from the statutory ratio because I have found special circumstances, and because of the effect of section 6 of the Children’s Act.

Orders

72. LP, please stand.

73. You are convicted of the offences of:

1. Sexual intercourse with a person aged between 10 and 14 contrary to s66C(1) Crimes Act 1900;

2. Aggravated Indecent Assault (Child under 16) contrary to s61M(2) Crimes Act 1900;

3. Aggravated Indecent Assault (Child under 16) contrary to s61M(2) Crimes Act 1900;

4. Aggravated sexual intercourse with person aged between 10 and 14 contrary to s66C(2) Crimes Act 1900;

5. Sexual intercourse with a person aged between 10 and 14 contrary to s66C(1) Crimes Act 1900;

6. Sexual intercourse with a person aged between 10 and 14 contrary to s66C(1) Crimes Act 1900; and

7. Commit Act of Indecency towards person under 16 contrary to s61N(1) Crimes Act 1900.

74. You are sentenced to an aggregate term of imprisonment for 3 years, 3 months.

75. I impose a non-parole period of 14 months.

76. The head sentence will commence today and expire on 2 October 2023.

77. The non-parole period will expire on 2 September 2021.

78. Do you understand the orders that I have made?

Decision last updated: 03 July 2020