R v Oxley (a pseudonym)

[2022] NSWDC 200

District Court

New South Wales

Medium Neutral Citation:

R v Oxley (a pseudonym) [2022] NSWDC 200

Hearing dates:

27 May 2022

Date of orders:

27 May 2022

Decision date:

27 May 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [73] – [75]

Catchwords:

SENTENCING – aggravated sexual assault – victim under the age of 16 years – juvenile offender – delay in prosecution – offender dealt with according to law – lost opportunity for disposition in the Children’s Court – non-custodial penalty available

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R [2010] NSWCCA 159

Brown v R [2014] NSWCCA 215

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Filippou v The Queen (2015) 256 CLR 47

KT v R [2008] NSWCCA 51

Millwood v R [2012] NSWCCA 2

Moon v R [2000] NSWCCA 534

MPB v R [2013] NSWCCA 123

MS2 and Ors v Regina [2005] NSWCCA 397

Paul Campbell v R [2018] NSWCCA 87

R v AA [2017] NSWCCA 84

R v Daley [2010] NSWCCA 223

R v De Simoni (1981) 147 CLR 383

R v DLW [2021] NSWDC 319

R v EC [2018] NSWDC 267

R v Gebrail (unrep, 18/11/94, NSWCCA)

R v Gordon (1994) 71 A Crim R 459

R v Hearne [2001] NSWCCA 37

R v KL [2020] NSWDC 409

R v RP [2018] NSWDC 125

R v SDM (2001) 51 NSWLR 530

R v T (1990) 47 A Crim R 29

R (a child) v Whitty (1993) 66 A Crim R 463

RC v R; R v RC [2020] NSWCCA 76

The Queen v Olbrich (1999) 199 CLR 270

WG v R; KG v R [2020] NSWCCA 155

Yardley v Betts (1979) 1 A Crim R 329

Category:

Sentence

Parties:

Regina
John Oxley (a pseudonym)

Representation:

Counsel:
Mr M Pincott (Crown)
Ms C Mendes (Offender)

Solicitors:
Ms J Murray (offender)

File Number(s):

2020/00188106

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of any material capable of identifying either the young person or the victim.

Ex tempore Judgment

Introduction

1. John Oxley is to be sentenced for a single charge of aggravated sexual assault, where the victim was under the age of 16 years, contrary to section 61J(1) of the Crimes Act 1900. The maximum penalty is 20 years’ imprisonment.

2. Although the offence carries a standard non-parole period of 10 years’ imprisonment, it does not apply as the offender was under the age of 18 years at the time the offence was committed pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999. I disregard the standard non-parole period entirely: BP v R [2010] NSWCCA 159 at [36].

3. The maximum penalty is an important guidepost in the assessment of sentence. A sentencing judge should steer by, but not aim for it.

Plea of guilty

4. A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offences, and the matter was subsequently committed for sentence to the District Court. As such, Mr Oxley is entitled to a discount for an early plea of guilty of 25% in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Facts

5. Agreed facts have been tendered in these proceedings. In summary, the facts are as follows:

6. John Oxley was a friend of the victim’s older brother. At the time of the offence, the offender was 14 years old, and the victim was 6 years old. The victim’s father was posted to the Wagga Wagga Royal Australian Air Force base where he resided in a three-bedroom unit.

7. In summer of 2014, the offender stayed overnight with the victim and her brothers in the unit on the RAAF base. The offender was lying on a mattress alone in the room that the boys slept in. The victim entered to show the offender a game she was playing on her iPod. The victim lay down on the mattress next to the offender. The offender put his hand down the victim’s pants while she continued talking about the game. He moved his hand to the victim’s vagina and inserted his finger. This caused her pain. After a short time, he removed his hand. The victim went to her father but did not disclose what happened but avoided the offender for the remainder of the stay.

8. In 2019, the victim disclosed what happened to a friend. No further complaint was made at this time. On 1 June 2020, the victim’s mother received a call from the same friend’s mother. They discussed the victim having sex with her boyfriend. Her mother confronted the victim with this information which the victim denied. Her mother said that she would take her to a doctor to confirm she was telling the truth. At this point, the victim disclosed the incident at the RAAF base. The police were contacted.

9. The victim’s older brother was infuriated by the allegations and sent the offender a text message. In response, the offender said “I swear I have no memory of doing that. But my body and heart is shaking like something did happen. So I think I did. Holy fuck. I’m sorry [name omitted].”

10. On 12 June 2020, the victim participated in a child interview at Wagga Wagga Child Abuse Squad HQ. The offender was arrested and charged on 25 June 2020 after he attended Wagga Wagga police station.

Section 25AA

11. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 applies to the proceedings. I must sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence.

12. While I am required to comply with s 25AA, I must take guidance from the maximum penalties applicable at the time of the offending – 2014. Section 25AA does not alter this fundamental common law principle. The correct approach to fixing a sentence compliant with s 25AA involves the following steps:

1. Take into account the sentencing pattern which exists at the date of sentence where such pattern is able to be discerned.

2. Determine the facts as are now available to the Court. In this case there is an agreed facts document.

3. Have regard to the maximum penalty enforced at the time as a guide to the range of punishment then available.

4. Identify where the offence falls within the range of objective gravity of that offence.

5. Take into account any relevant aggravating and mitigating factors identified in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. Those provisions have retrospective application and apply to all offences no matter when committed.

6. Fix or indicate the term of individual sentences and ultimately the total sentence.

7. Determine whether special circumstances require that the relationship described by s 44 of the Crimes (Sentencing Procedure) Act 1999 be varied.

13. The offender has been sentenced in accordance with s 25AA(1) and I have had regard to the trauma of sexual abuse on the child in accordance with s 25AA(3). I have had no regard to patterns or practices of sentencing which may have operated at the time of the offending.

Objective seriousness

14. Every offence of a sexual nature is a serious offence: R v Gebrail (unrep, 18/11/94, NSWCCA).

15. The offence is aggravated by the fact that it occurred in the home of the victim’s father, a place where the victim was entitled to feel safe and secure: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

16. The complainant froze due to fear during the incident. She felt pain. For the remainder of the trip, she avoided the offender. The incident had an immediate effect on the complainant.

17. The facts disclose a single instance of digital penetration over a short period of time. The short duration of a sexual assault is not ordinarily a factor which operates to reduce the objective seriousness of an offence: R v Daley [2010] NSWCCA 223 at [48]. A sexual assault of a short duration against a young child will still have a profound and deleterious effect on the victim: WG v R; KG v R [2020] NSWCCA 155 at [1546]. However, a sexual assault of an extended duration would have the effect of increasing the objective seriousness of the offence. I do have some regard to the short duration: R v AA [2017] NSWCCA 84 at [56]. This feature of the offence indicates that it was a spontaneous, impulsive act. There is no evidence of any planning or premeditation. There is no evidence of force or of coercion, threats or pressure. There were no demands for silence.

18. The child was 6, well below the top of the age range of 16 years. It is generally accepted that the younger the child, the more serious the offence: R v T (1990) 47 A Crim R 29. A child as young as the victim is particularly vulnerable, likely with little understanding of the wrongfulness of the behaviour demonstrated by the offender or the language to later make a complaint: RC v R; R v RC [2020] NSWCCA 76 at [238].

19. In addition, there was an 8-year age gap between the offender and the victim, a young child. The age difference between a sexual offender and their perpetrator can affect an assessment of the objective seriousness of the offending: AA at [55]. However, I do not consider that this operates to any substantial degree against the offender considering the usual application of this principle as being with adult offenders and child complainants. It also could not be said that the 6-year-old victim was the 14-year-old offender’s equal.

Comparative cases

20. In addition to my analysis of the factors that aggravate or mitigate the offence, I am assisted in determining the relative objective seriousness and appropriate punishment by a review of published comparative cases.

21. R v DLW [2021] NSWDC 319 involved an offender sentenced for three counts of aggravated sexual assault of a victim under 16 years. The victim was 10 or 11 years. The offender was about 14 years old. He engaged in penile-anal intercourse with the victim on three separate occasions over a period of more than a year. On one occasion, the offender was armed with a knife. Each time, the offender threatened violence, and the last time, he threatened to kill the victim. There was a strong subjective case for the offender, including a history of sexual abuse. At the time of sentence, the offender was an adult. Notwithstanding the gravity of the offence, Wilson SC DCJ found that general deterrence and retribution were of less significance. His Honour also concluded that the outcome at sentence would have been vastly different had the offender been charged shortly after the offences. No sentence other than full-time imprisonment was appropriate in this case.

22. The threats of violence and threat to kill in DLW, combined with the fact that it involved multiple occasions of serious sexual offending, elevated the objective seriousness. It is clear that the circumstances in DLW warranted a sentence of full-time imprisonment. Although there is no strict hierarchy or ranking of objective seriousness of sexual acts with penile-vaginal or penile-anal intercourse at the apex, the present offence is clearly less serious than this example due to the nature of the sexual act, being a single instance of digital penetration for a short time, the impulsive nature of the offence, and the fact that there were no threats or demands for silence. More careful consideration to the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 is required in the present case than in DLW.

23. R v RP [2018] NSWDC 125 involved the same young offender to which the decision of the High Court of Australia in RP v The Queen [2016] HCA 53 relates. There were three counts on the indictment. The only count relevant for my analysis in this matter is count 1, which was contrary to s 61J(1) where the circumstance of aggravation was that the victim was under the age of 16 years. The victim was 15 years of age, and the offender was 14. The offender engaged in penile-anal intercourse without the victim’s consent, knowing he was not consenting. Lerve DCJ found that the offence was opportunistic in nature, assessing the offence as being ‘slightly below mid-range’. His Honour also considered that the offender had lost the opportunity to have the counts that were not ‘serious children’s indictable offences’ dealt with in the Children’s Court.

24. Overall, in RP, it is not inevitable that a sentence of custody be imposed in respect of the counts that involved offences that were committed when the offender was fourteen years old, including count 1. They were dealt with by way of a bond pursuant to the old section 9 of the Crimes (Sentencing Procedure) Act 1999. I consider penile-anal intercourse as in RP to be a more serious example of offending under s 61J(1) than the present offending, however I note that the child victim in RP was substantially older than the 6-year-old victim in the present case. This case informs me that there are situations, even in the instance of serious sexual offending contrary to s 61J(1), where a non-custodial penalty may be imposed for a juvenile offender being sentenced according to law.

25. R v KL [2020] NSWDC 409 involved an offender aged 14 years and 3 months old. She performed fellatio on her five-year-old brother on two separate occasions, filmed the act and sent it to her older online ‘boyfriend’. The offender experienced sexual abuse and was witness to domestic violence in her formative years. Weinstein SC DCJ found that the objective seriousness of the offence was at the low end of the range and the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 was not crossed.

26. I exercise great caution in reviewing this case. KL was charged with an offence under s 66A(1) which carries a maximum penalty of life imprisonment. I have considered the principle in R v De Simoni (1981) 147 CLR 383 that the offender cannot be punished for an offence of which he has not been convicted. I have taken this case into consideration only in relation to the reasons for imposing a non-custodial penalty for a young offender who has committed an objectively serious sexual offence.

27. Digital penetration of a young child is objectively serious offending. The present matter is an example of offending that falls to the lower end of objective seriousness for like offences.

Age of the offender

28. The offender was between 14 and 15 years of age at the time of the offence.

29. The authorities make clear that I may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt: Filippou v The Queen (2015) 256 CLR 47; The Queen v Olbrich (1999) 199 CLR 270. I am bound to sentence on the basis that the offender was 14 years of age when he committed the offence.

30. Although this offence is not a ‘serious children’s indictable offence’ as defined in s 3(1) Children (Criminal Proceedings) Act 1987, it is being dealt with according to law in this Court.

31. Mr Oxley is now 23 years of age. He was 21 years and 1 month old when he was charged with the present offence. The offender’s age of 14 at the time of the offence is of significance. Had the offender been charged with the current 61J(1) Crimes Act 1900 offence closer to the time of the offending and before he turned 21 years of age, the s 61J charge would have been amenable to disposition in the Children’s Court, noting s61J(1) is not a serious children’s indictable offence. The discretion to record a conviction would have also been available. I accept the Crown submission that this aspect of the present matter can properly be taken into account as a matter of mitigation.

32. The relevant charge is an indictable offence that is not being disposed of summarily. Rather, it is being determined “according to law”. As stated by Hunt CJ at CL in R v WKR (1993) 32 NSWLR 447 at 449, the expression “according to law” means “according to the principles of sentencing ordinarily applied by the courts, without reference to those provisions in Pt 3, Div 4 of the Children (Criminal Proceedings) Act which are otherwise applicable only in the Children’s Court”.

33. It is difficult to determine with certainty the likely disposition of the matter had the prosecution commenced earlier. Given his age, there would have been scope for this matter to have been finalised without recording a conviction which I have considered: TC v R [2016] NSWCCA 3 at [43]. There are few penalties available at law under the Crimes (Sentencing Procedure) Act 1999 that allow for a finding of guilt without the recording of a conviction. None are appropriate in this sentencing exercise, given the objective seriousness of the offence. The offender is convicted.

34. Courts exercising criminal jurisdiction with respect to children shall have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987: R v SDM (2001) 51 NSWLR 530; Paul Campbell v R [2018] NSWCCA 87 at [26]. Section 6 provides:

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,

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

35. This provision echoes the articles of the Conventions on the Rights of the Child to which Australia is a signatory. Although the offender is presently an adult, the provisions remain relevant when dealing with an adult offender for an offence they committed as a juvenile: AA at [65]

36. Because the offender was a child at the time, considerations of general deterrence, denunciation and punishment are to be given less weight: SDM. This principles for sentencing young offenders were summarised by McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [23]:

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. (citation omitted). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (citation omitted). 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. (citation omitted)

37. The reason for this was summarised by Adams J in MS2 and Ors v Regina [2005] NSWCCA 397 at [16]:

“…children do not have adult value judgments, adult experience, adult appreciation of consequences – especially catastrophic consequences – or adult understanding of criminal culpability.”

38. See also BP v R [2010] NSWCCA 159, Hodgson JA at [3]-[6].

39. The need for punishment and protection of the community would be the overriding considerations for an adult who commits the same offence; they would go to gaol for a very long time. Indeed, general deterrence and retribution remain relevant even for a young offender where they conduct themselves as adults and commit a crime of considerable gravity: Paul Campbell v R [2018] NSWCCA 87 at [32]; R v Gordon (1994) 71 A Crim R 459.

40. This is a crime of considerable gravity. The factors I considered when assessing the objective seriousness are also relevant to determining if the offender conducted himself as an adult. The offending was for a short duration, occurred spontaneously with little planning, if any. It is clear that this offender was a young, immature adolescent who behaved impulsively and committed this serious offence. The offender’s immaturity was a significant contributing factor to this offence, and the criminality is less than that of an adult: R v Hearne [2001] NSWCCA 37 at [25].

38. This is not to suggest that the offender did not appreciate that his actions were wrong. He has accepted this with his plea of guilty. Additionally, he was over 14 years of age and there is no presumption that he was doli incapax. However, this offender’s immaturity is extremely relevant, and substantially explains the offending behaviour.

39. No civilised society regards children as accountable for their actions to the same extent as adults. R (a child) v Whitty (1993) 66 A Crim R 463.

40. Emphasis should be placed on rehabilitation rather than punishment in the sentencing exercise: R v EC [2018] NSWDC 267 at [23].

Subjective circumstances

44. I am assisted in determining the relevant subjective circumstances for the offender by the report of Dr Richard Furst, consultant forensic psychiatrist, dated 11 January 2022, and by the affidavit of the offender dated 20 May 2022.

45. The offender’s affidavit reveals that he was exposed to domestic violence in his home from the age of 6. His mother was in a relationship with a violent man who would frequently beat her. He would hide under his bed this occurred, and he would see bruises on her face and body. The violence continued when his mother met his stepfather when the offender was about 10 years of age. To Dr Furst, the offender described his stepfather as an ‘ice junkie’ who would break things around his home and hit his mother. He would try to intervene and protect his mother, but they continue to be in a relationship.

46. As a result of the violence, DOCS, as it was then known, became involved, and the offender was removed from his mother’s care for at least a year. During this period, he was moved to different homes. With his mother, the offender was frequently moved to different towns in the Riverina. There is a pattern of instability in terms of the offender’s accommodation and education as a child. He felt unsafe and unsettled.

47. The offender describes a recent incident in his affidavit where he and his partner were the victims of a serious threat from the offender’s stepfather. His stepfather was intoxicated and threatened to burn down their house, turning the gas in their kitchen on and holding a lighter beside it. There are apprehended domestic violence orders in place.

48. The domestic violence in his home has had a lasting effect on the offender. He was an angry child, feeling betrayed and unloved by his mother as he got older for choosing to remain in a relationship with his stepfather.

49. In his affidavit, the offender disclosed that when he was a child, his family was victim to a home invasion by an intruder wielding a gun. The experience was frightening for him. Letter from various doctors refer to the event, which could have contributed to his mental health condition and anger issues.

50. The offender disclosed to Dr Furst and confirmed in his affidavit that he was subjected to bullying by his peers in both primary and high school. At an early age, approximately 10 years, he developed symptoms of anxiety and depression. He sought assistance from school counsellors and doctors. I have before me a letter from Dr Amir Mohashami dated 6 March 2019, describing the offender as suffering from ‘chronic depression and anxiety’ since 2013-2014. An email of Dr Syed Shahin dated 26 April 2019 confirms that his history of depressive symptoms is over 5 years and has progressively worsened.

51. He has experienced frequent suicidal ideation. He disclosed to Dr Furst that he presented to the emergency department at Wagga Wagga Base Hospital in November 2018, feeling suicidal at a time when he was intoxicated. Although he did not require psychiatric admission, he was referred to his local mental health team, and also to Headspace and Partners in Recovery.

52. He has been prescribed various medications for his mental health condition by medical practitioners. He explained to Dr Furst that he discontinued use due to the adverse side effects of the medication, including feeling irritable and hearing the voice of his dead grandfather. This is confirmed in the letter of Dr Mohashami.

53. The subjective material reflects intermittent treatment and support, with the offender ceasing treatment at times. Indeed, to Dr Furst, Mr Oxley described that between the ages of 15 and 18, he became very reserved, but was not seeking any psychological assistance. Presently, Dr Furst’s report confirms that the offender meets the criteria for diagnoses of social anxiety disorder and major depressive disorder. However, the various letters report overall positive responses to treatment.

54. Dr Furst in his report outlines that the offender used cannabis experimentally from the age of 13 years, but he increased his drug use in 2018 as this helped relieve some of his anxiety symptoms. There is nothing to suggest any substance use disorder.

55. Mr Oxley’s childhood background is characterised by deprivation due to the violence and instability he experienced as a young boy. The principles embodied in Bugmy v The Queen (2013) 249 CLR 571 are enlivened, and the offender’s moral culpability is reduced.

56. Simpson J (as her Honour then was) made this point in Millwood v R [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing):

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

57. I give full weight to the subjective circumstances of this offender. I accept Ms Mendes’ submission that his childhood experience compromised his capacity to properly emotionally mature, develop appropriate behavioural boundaries and learn through observation, likely explaining his recourse as a young teenager to seek emotional comfort in a manner that demonstrated poor judgment and little regard for the victim.

58. To Dr Furst, the offender denied any sexual attraction to younger children or any deviant sexual interests. In terms of the nexus between the offender’s mental health issues and the offending, Dr Furst states:

The offending in question appears to have been opportunistic, poorly planned and/or impulsive, taking place when Mr Oxley was immature, i.e. approximately 14 years of age and when he was emotionally and behaviourally troubled. In my opinion, his anxiety, depression and emotional disturbance did not cause him to offend in the manner described in the Statement of Agreed Facts, but likely contributed to his poor judgment and impulsivity when he chose to offend in that manner.

59. I am not satisfied that the offender’s mental health condition materially contributed to the offence in a manner that would operate to reduce his moral culpability as described by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. However, I take this into account as a part of this offender’s subjective mix.

60. In 2018, the offender was convicted for a charge of common assault at Wagga Wagga Local Court. A Community Correction Order for 12 months was imposed, supervised by community corrections. No breaches of the order appear on his criminal record. I note that the offence post-dates the offence for which Mr Oxley is being sentenced for today. I consider that he was a person with no prior history at the time of the offence. Although the principles of general deterrence and punishment for child sexual assault matters usually demand a moderation of the weight sentencing judges give to lack of criminal history, I have already found that in this circumstance, general deterrence is to be attributed reduced weight on the basis of the young age of the offender. He is entitled to leniency on the basis of his lack of criminal history: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

Contrition/remorse

61. The offender was confronted by the victim’s brother, his friend, approximately one month prior to his arrest where he admitted to the offending. This is demonstrative of his regret and remorse.

62. To Dr Furst, the offender expressed a lot of regret and guilt about his actions. In his affidavit, the offender explains that he feels terrible, and reflecting on the offending makes him emotional. I accept the decline in his mental health after being charged with this offence is a manifestation of his regret. I consider that he has shown insight into the seriousness of this offence and demonstrates genuine contrition and remorse.

Prospects of rehabilitation

63. I have discussed the importance of rehabilitation in sentencing young offenders in detail. I reiterate that it is of increased significance in this sentencing exercise. In Yardley v Betts (1979) 1 A Crim R 329 King CJ at p 333 said this:

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

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

64. The offender has suffered from symptoms of depression and anxiety from a young age. However, he has been active in seeking mental health treatment, engaging with and accepting treatment from various services. He explains in his affidavit that he intends to improve himself and continue to seek help. Anti-depressant medication that is more tolerable for him might be of assistance.

65. In the community, he enjoys the strong support of his partner and her family. He is employed with his partner’s father. They appear to be a prosocial influence for the offender. He will shortly commence a glazing apprenticeship. His goal is to become a veterinarian.

66. I referred earlier to the Community Correction Order imposed in 2018. It is the only entry on his criminal history. There is no evidence that he did not comply with the orders of the Court.

67. Dr Furst opines that the offender has good prospects of rehabilitation and a relatively low risk of reoffending. I agree with this assessment. I focus on rehabilitation in the sentencing exercise given the offender’s youth, and the ability for successful rehabilitation of offenders to enhance community safety.

Statistics

68. Sentencing statistics are a blunt tool: Brown v R [2014] NSWCCA 215 at [81]. For offenders determined by the District Court for a 61J(1) offence, statistics from the Judicial Information Research System (JIRS) reveal that all offenders received full-time imprisonment. Children’s Court dispositions of an offence of aggravated sexual assault where the victim is under 16 reflect considerable flexibility in sentencing. Almost 43% of children received a control order, while the remainder received a suspended control order or a probation order under s 33(1)(e) of the Children (Criminal Proceedings) Act 1987.

69. The offender is not being sentenced for an offence under s 66A. However, the statistics in terms of the circumstances where a non-custodial penalty is imposed are of assistance. For cases determined after 24 September 2018, there have been 11 instances where a non-custodial penalty has been imposed for a s 66A(1) offence. In all but one of those matters, the offender was a juvenile at the time of the offence. The statistics inform me that, even for objectively serious offending, a non-custodial penalty is not outside of the range of sentences that could justly be imposed.

Sentence

70. Section 5 of the Crimes (Sentencing Procedure) Act 1999 provides the following:

(1) 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.

71. Dr Furst considered that the offender did not present as pro-criminal or antisocial. This supports the submission of Ms Mendes that a non-custodial penalty is an appropriate disposition of this matter.

72. The offender’s moral culpability is reduced, and considerations of retribution and punishment cede to rehabilitation of the offender by virtue of his young age at the time of the offence. I am not satisfied that no penalty other than imprisonment is appropriate.

73. John Oxley, you are convicted and sentenced to a Community Correction Order for a period of 3 years. You are to be supervised by Community Corrections at Wagga Wagga. The Community Correction Order is subject to the following standard conditions:

1. You must not commit any offences;

2. You must appear before the Court is required to do so for the period of the Community Correction Order.

The Community Correction Order is also subject to the following additional conditions:

3. You are subject to supervision by Community Corrections. The relevant office is Wagga Wagga Community Corrections;

4. You are to undergo treatment/rehabilitation. Specifically, you are to continue engaging with Headspace at Wagga Wagga;

5. You must report by telephone to Wagga Wagga Community Corrections within 7 days.

74. This offence is a ‘serious offence’ pursuant to s 40(5)(c) of the Crimes (Domestic and Personal Violence) Act 2007. Section 39(1A) of the same Act requires that I make a final apprehended violence order for the protection of the victim. The order is for a period of 2 years. The conditions are as follows:

1. You must not do any of the following to the victim, or anyone she has a domestic relationship with:

1. assault or threaten her,

2. stalk, harass or intimidate her, and

3. intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of the victim.

2. You must not approach the victim or contact her in any way, unless the contact is through a lawyer.

75. The offender was under 18 at the time the offence was committed and has not previously been convicted of any other sexual offence. I have not imposed a sentence of full-time detention and I am satisfied that this offender does not pose a risk to the lives or sexual safety of children. As such, I order that the offender is not to be treated as a registrable person pursuant to section 3C of the Child Protection (Offenders Registration) Act 2000.

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Decision last updated: 07 June 2022