R v RI

[2019] NSWDC 129

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RI [2019] NSWDC 129
Hearing dates:	15 April 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Criminal
Before:	His Honour Judge Gordon Lerve
Decision:	Convicted on both counts. Released on Probation s 33(1)(e) Children (Criminal Proceedings) Act, 1987
Catchwords:	Juvenile offender dealt with on indictment – whether to deal with offender according to law – opportunity lost to have matters dealt with in the Children’s Court – discretion to declare offender not to be a registrable person
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings) Act, 1987 Child Protection (Offenders Registration) Act 2000 Crimes (Sentencing Procedure) Act, 1999 Crimes Act 1900
Cases Cited:	R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v BA [2014] NSWCCA 148 R v BP [2010] NSWCCA 159 R v KT [2008] NSWCCA 51 R v Gavel [2014] NSWCCA 56 Jolly v R [2013] NSWCCA 76 Khanwaiz v R [2012] NSWCCA 168 Mead v Mead [2007] HCA 25 DPP v Pinn [2015] NSWSC 1684 Olbrich v The Queen (1999) 199 CLR 270 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (the Crown) RI (a young offender)
Representation:	Counsel: Mr R Keller (for the young offender)   Solicitors: Ms V Morgan (for the Crown)
File Number(s):	2017/106997
Publication restriction:	The court reminds all concerned that the relevant legislation prohibits the publication of the name of the complainant and the offender or anything that might tend to identify them.

SENTENCE

Restriction on Publication: The court reminds all concerned that the relevant legislation prohibits the publication of the name of the complainant and the offender or anything that might tend to identify them.

1. It is plain from the decision of Mead v Mead [2007] HCA 25 and more recently the decision of Adamson J in DPP v Pinn [2015] NSWSC 1684 that a court is entitled to inform itself from its own record.

2. Informing myself from the Court’s record in this matter presently before the court the young offender was committed for trial from - a regional Children's Court on 30 August 2017 in respect of offences contrary to s 61J of the Crimes Act 1900. Pleas of not guilty to those charges were entered at arraignment on 29 September 2017. The matter was included in what became known as the “Special Call Over” in April 2018 when the court was informed that there were no prospects of resolution of the matter. The trial date of 28 May 2018 was confirmed.

3. The matter was mentioned on several occasions during the week of 28 May 2018. Eventually the matter was listed for trial on 4 February 2019. On 5 February 2019 the offender pleaded guilty to two counts on an indictment both in identical terms, namely:

That (he) on or around 7 April 2017 at [redacted] in the State of New South Wales, did have sexual intercourse with[the victim], a child then of the age of 14 years and under the age of 16 years, namely 14 years, contrary to s 66C(3) of the Crimes Act, 1900.

4. The first count relates to an act of digital penetration and the second count to an act of penile/vaginal intercourse that occurred in the same episode of offending. It was conceded by the Crown at the sentence hearing on 15 April 2019 that the young offender offered to plead guilty to these charges while they were still in the Children’s Court.

5. The young offender was 17 years, 11 months and 28 days of age at the time of the commission of the offences but nevertheless under the age of 18 years of age. Had the prosecuting authorities proceeded initially with the charges to which the young offender pleaded guilty he would have been amenable to the jurisdiction of the Children’s Court and the Children (Criminal Proceedings) Act, 1987 and he would not have been amenable to the jurisdiction of this court at first instance. The offences to which the offender has pleaded guilty are not children’s serious indictable offences within the meaning of s 3 of the Children (Criminal Proceedings) Act,

6. The young offender lost through no fault of his own any possibility of the matters being dealt with in the Children’s Court and now finds himself being dealt with on Indictment. The Children’s Court does not have the jurisdiction to deal with a young offender according to law. The Crown submitted at the sentence hearing not only that this court deal with the offender according to law but further, as I understood the Crown’s submission at the sentence hearing submits by way of primary submission on sentence that a sentence of full time imprisonment be imposed. This stance was moderated in further submissions today. I will be returning to this issue later in these remarks.

7. Not surprisingly the Crown conceded that the offender offered to plead guilty to the matters to which pleas were entered in this court in the Children’s Court and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

8. The maximum penalty for the offences for which the young offender appears for sentence is 10 years imprisonment if dealt with on indictment. Parliament has not specified a standard non-parole period in respect of the offence.

Facts

9. The facts are before the court by way of agreed facts. I will use the word victim not to depersonalise her but rather to keep her anonymous.

10. The victim was 14 years of age at the time of the offence with the actual date of birth being set out in the Agreed Facts. The offender was 17 years of age, only two days off his 18th birthday. The victim and the offender knew each other from school. The offender first saw the victim when she was in Year 7.

11. At about 7pm on 7 April 2017 the victim attended an 18th birthday party . About 70 to 80 teenagers were present and a DJ was playing music.

12. The offender was told by others at the party that the victim was 15 years of age but she was in fact 14 years of age. The victim was wearing a black top, blue denim mid-thigh length shorts that were tight at the top and fitted with three buttons and a zipper and were wide at the legs. During the evening the victim consumed 2 or 3 cans of Smirnoff Vodka cans (presumably pre-mixed drinks) and half a glass of an alcoholic punch drink.

13. The victim saw the offender during the course of the evening. The victim said “hi” to the offender before starting to talk to friends who were standing nearby. The victim describes the offender as being tall with dark hair, wearing a black hat and having a pierced nose. They spoke at other times during the night.

14. At about 11.30pm the victim walked towards the bathroom of the residence to fix her hair that had become dishevelled. The bathroom door was locked so the victim walked further down the hallway into a bedroom that had a mirror, which was mounted on the wall next to the door. The offender entered the room a short time later, closed the door and turned off the light.

15. The offender put his hands up the side of the victim’s shorts and inserted his fingers into the victim’s vagina (count 1). The victim could feel the offender’s fingers moving in her vagina. The offender then inserted his penis into the victim’s vagina (count 2). The facts recite that the victim states at the end her shorts were still done up and does not recall the offender having undone the buttons at any stage.

16. The victim was unsure if she wanted to consent to the sexual intercourse but the offender honestly believed on reasonable grounds that she was consenting. After a while the offender got up, ejaculated on the victim’s shorts and left.

17. Police were called and a notebook statement was obtained. The victim was medically examined by a doctor. A detailed version was taken from the victim the following day.

18. The offender was interviewed and declined to make any comment in respect of the allegations.

Assessment

19. The offender was almost 18 and the victim was 14 but the offender was told she was 15. Clearly he was aware that she was not of consenting age. The age of 14 is the lower of the limited age range contemplated by the offence. The offending was not spontaneous given what appears at p. 4 and 5 of the Juvenile Justice Background Report (tab 4 of exhibit A on sentence), that the offender spoke to the victim for some time and agreed to meet her in the bedroom. The offending was isolated and I mean by that there is no suggestion of a course of conduct.

20. There is one act of digital penetration and one act of penile/vaginal intercourse. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

21. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”

22. The Court (Leeming JA, Johnson & Hall JJ) said in R v Gavel [2014] NSWCCA 56 at [97]:

“…It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of the offending is to be determined according to the entirety of the facts and circumstances of the case in question…”

23. McCallum J (Gleeson JA agreeing with additional comments, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] observed that, “…Each case must be assessed according to its own circumstances”.

24. So far as the second count is concerned there is the issue of the offender ejaculating on the shorts of the victim. The Crown put in submissions that this was in the nature of conduct to degrade the victim. It was certainly unnecessary for the offender to have done that and the act of ejaculation does make that matter more objectively serious.

25. Given all of the facts and circumstances surrounding the offending which I have attempted to summarise, both matters are within the mid-range but towards the lower end of the mid-range with the count relating to the penile/vaginal intercourse being more serious because of the nature of the penetration and the ejaculation.

Criminal History

26. As previously stated the offender was almost 18 years of age at the time of the offending. There is nothing recorded on his criminal history before the offending and accordingly the offender is entitled to be sentenced on the basis that he is of prior good character.

27. Since the offending he has been convicted of two counts of Enter Inclosed Lands, which are offences that carry a fine only. Essentially these matters are of no practical consequence.

Children (Criminal Proceedings) Act, 1987 or according to law.

28. This is why I commenced these remarks with the history of the matter. The Crown submits that the young offender be dealt with according to law essentially, as I understood the submissions, in that the age of the offender was extremely close to his 18th birthday and the serious nature of the offending. The Crown submitted that apart from sub-paragraph (d) within s 18 of the Children (Criminal Proceedings) Act there was nothing within that section that assisted the offender.

29. Mr Keller on behalf of the offender submits that the court deal with the offender pursuant to Division 4 of Part 3 of the Children (Criminal Proceedings) Act. As I understood the submissions, this submission was made on the basis of the lack of record and the immaturity of the offender.

30. Section 18(1A) of the Children (Criminal Proceedings) Act provides:

In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters:

(a)  The seriousness of the indictable offence concerned;

(b)  The nature of the indictable offence concerned;

(c)  The age and maturity of the person at the time of the offence and at the time of sentencing;

(d)  The seriousness, nature and number of any prior offences committed by the person; and

(e)  Such other matters as the court considers relevant.

31. I have already made findings as the seriousness of the matters before the court. The nature of the offending is sexual offending involving a 14 year old victim. The offender was two days off his 18th birthday. It is difficult to make findings as to his maturity at the time of the offence. The Juvenile Justice Background Report (p 5) refers to a psychologist’s report but the court is not favoured with a copy of that report. It seems that neither party has that report. The offender gave evidence, to which I will return, and impressed as having average maturity for someone of his age, which is 20 at the time of sentence. I have already dealt with the issue of the criminal history.

32. However, it seems to me the matter that I raised at the beginning of these remarks is highly relevant so far as the discretion as to whether to deal with the offender according to law or in accordance with the provisions of Division 4 of Part 3 of the Children (Criminal Proceedings) Act. The Crown conceded that the offender offered to plead guilty to the charges with which the court is now dealing in the Children’s Court. Had he done so as I have already indicated the matters would have necessarily had to have proceeded at first instance in the Children’s Court. The offender has lost that opportunity. This seems to me to be a particularly good reason why the court should deal with the offender in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act and I do so.

33. Very soon after the sentence hearing I caused my Associate to by email contact the parties and to remind them of the decision of Zreika v R [2012] NSWCCA 44. It seems to me that the situation in this matter is analogous to the situation where an adult offender has lost the opportunity to have a matter dealt with in the Local Court. Mr Keller made some brief supplementary submissions on this issue today.

Dealing with juvenile offenders

34. The provisions of s 6 of the Children (Criminal Proceedings) Act must be taken into account and given proper and adequate regard. Section 6 of the Children (Criminal Proceedings) Act provides:

“A person or body that has functions under this Act is to exercise those functions having regard to the following principles:

(a)   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,

(b)      that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)     that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)      that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)      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,

(f)      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,

(g)     that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

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

35. The aspect of rehabilitation attains a much greater emphasis in a sentencing exercise involving a juvenile offender. However, the objective criminality and other aspects of the sentencing process are not overlooked merely because the offender is a juvenile, particularly where the offending is serious. McClellan CJ at CL in R v KT [2008] NSWCCA 51 at [21]-[26] succinctly summarised the authorities relating to sentencing juvenile offenders. His Honour was in dissent on the ultimate issue, however, with unfeigned respect, that part of the judgment is an excellent summary of the relevant principles. His Honour said (I will not read out the authorities and the citations, but they are in the written remarks) at [22]-[26]:

“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].

[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. (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]).

[24] 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. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

‘It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.’

[25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

[26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).”

36. In the matter presently under consideration it must of course be remembered that the offender was two days from his 18th birthday. In this regard I note in particular the last part of the extract immediately above, namely “a child-offender of almost eighteen years of age cannot be expect to be treated substantially differently from an offender who is just over eighteen years of age”. It must also be remembered that the offender is being sentenced in respect of sexual offences involving a 14 year old victim. I note however that there is no use of weapons, there is no substantial planning or premeditation and there is no extensive criminal history.

37. The Court of Criminal Appeal also extensively reviewed the issue of sentencing juvenile offenders in R v BP [2010] NSWCCA 159.

Juvenile Justice Background Report

38. The background report is required by virtue of section 25 of the Children (Criminal Proceedings) Act. The report is comprehensive and helpful. The offender was not previously known. The report sets out that the offender is a 20 year old aboriginal man with a strong connection to his culture. This was also very obvious in the offender’s evidence, to which I will later return. The report sets out that there is a strong relationship between the offender and his mother and her partner. The strong relationship between the offender and his mother was also obvious in the evidence of the offender and his mother.

39. The report goes on that the offender completed his secondary schooling - and that there were minimal behavioural issues and no diagnosis of learning difficulties. While the offender was in Year 9 he connected with the Clontarf Foundation which is an aboriginal service that supports aboriginal boys to improve their education, discipline, life skills, self-esteem and employment prospects. This was amplified in the offender’s evidence and copies of a number of certificates were tendered and became exhibit 1. The report sets out that the Clontarf Foundation had a positive effect on the offender and that too was obvious from his evidence.

40. The author opines (p 3) that the offender presents as a highly motivated and capable young man and set out that during the assessment process the offender connected with YARN’N, an aboriginal employment service located at Redfern.

41. Further the report sets out that the offender’s mother reported that the offender was a confident and well-liked young man. The offender reported to the author that his relationship with his peers is overall positive although he does have peer acquaintances who have been in custody. He denies these persons have had a negative effect on him.

42. The report sets out that the offender reported experimenting with alcohol at 15 years of age and had experimented with other substances including cannabis and MDMA but it would seem that there are no problems relating to the use or abuse of alcohol or illicit substances so far as the offender is concerned. However on the night of the offence he had drank up to 12 ciders and had taken one ecstasy pill. The offender told the author of the report that had he not been under the influences of alcohol and MDMA he would have thought more about his actions including questioning the victim’s age and considering the impact his actions would have had on his girlfriend.

43. The offender is involved in community organisations and sporting teams. He now lives in Sydney and is waiting until these proceedings are complete before connecting with a sporting team in Sydney.

44. Not surprisingly the report indicates that these proceedings have caused the offender worry and he identified the matters before the court as a traumatic event in his life. The planning relating to the offence is set out at pages 4 and 5 of the report. However the offender acknowledged to the author of the report that the law was broken because of the victim’s age and that he should have done more to ascertain her age. He now recognised the need to ensure that a potential sexual partner is over the age of legal consent.

45. Because of the nature of the offending the offender is not suitable for community service. The author of the psychologist’s report referred to but not produced recommends further therapeutic interventions to address the offending, including psychoeducation around consent, respectful relationships and positive sexuality and identifying high risk situations. Given the offender’s age any court ordered supervision will be undertaken by Community Corrections.

Subjective Case for the offender

46. I understood counsel for the offender to rely on the Background Report. The offender and his mother both gave evidence. I found both to be impressive witnesses.

47. The offender gave personal details including his date of birth. He was taken to the collection of copies of certificates and documents in exhibit 1. Those documents include an Attendance Award from the Clontarf Foundation, a Graduation Certificate from the Foundation, a Statement of General Construction Induction Training, which the offender explained was his “white card” that enables him to work on building sites, a Certificate congratulating the offender for completing the HSC course, a statement of attainment from a construction company and a TAFE academic records indicating the completion of various courses. One relates to sport and recreation, one to access to work and training and one in shop fitting.

48. The evidence continued that he became involved with the Clontarf Foundation when he was in year 9 and he continued his involvement in that Foundation until year 12. He still has some contact with staff and other students involved in the foundation. Clearly the offender was an enthusiastic participant and it had a positive effect on the offender.

49. Of recent times the offender has moved to Sydney where he lives with his mother who has adopted the role of carer for the offender’s grandmother who has been diagnosed with motor neurone disease. He assists his mother caring for his grandmother and also assists his mother with his young siblings of which there are four.

50. The evidence continued that he commenced an apprenticeship in shop fitting. I understood the evidence to be that this came to an end when he moved to Sydney. He hopes to recommence that apprenticeship when these proceedings are over. He was waiting for the outcome of these proceedings before embarking on any further course of study. It will take about a further two years for him to complete his apprenticeship.

51. When asked about the victim the offender said he felt really sorry for the situation. He said he did not want what happened to have any negative impact on her. Other interpretations may be placed on what he said but I understood him to say that he hoped that the events that led to these matters did not have any long-lasting impact on the victim. He said that he felt very sorry for the situation and that his life has been on hold for the last two years.

52. The offender went on to say in evidence that he will always make sure that any sexual partner is over the age of consent. He knew that the age of consent was 16. He does not want to find himself in custody and he wants to be a role model for his younger brother. He then went on to give the details about the possible resumption of his apprenticeship.

53. Under cross-examination the offender acknowledged that he had met the victim at school. He had been told at the party that she was 15 but he accepts that she was in fact only 14. He then went on to say that he believed she was 16. There were some further questions on honest and reasonable belief. It seems to me as was acknowledged by the Crown Prosecutor that the offender may well have been confusing honest and reasonable belief about the age of the victim as opposed to the honest and reasonable belief as to consent that is set out in the agreed facts. In any event the agreed facts are before the court and those are the facts on which this court will be proceeding to sentence. See for e.g. Khanwaiz v R [2012] NSWCCA 168 at [96] per Beech-Jones J.

54. In response to a question by the Crown Prosecutor the offender said that he wishes it, meaning the offending, had never happened. It was then put at least twice that he was not taking responsibility for the offending. He maintained that he was. He was then taken to the trespass matters on his record. The Crown submitted that the offender was at least to an extent continuing to blame the victim for the offending.

55. The offender’s mother gave evidence that the offender’s grandmother was diagnosed with Motor Neurone Disease last year. Her condition has deteriorated since the diagnosis. Her left leg is dragging and is beginning to stiffen up. Her speech is also impacted.

56. She went on to say that since her son was arrested for these matters he has not been the same. She said that her son is very remorseful for what he did. She went on to give details of some of the work that the offender has undertaken and the possibility of work doing re-sealing of the M5 motorway.

57. Moreover she said that she has had a conversation with the offender about the events that led to this matter. She said that she has spoken to him as to how to treat young ladies and that he has not been brought up to be disrespectful to women.

58. I understood the Crown Prosecutor to oppose a finding in favour of the offender that he is remorseful as he was not taking responsibility for his actions. The submission continued that the offender was evasive when asked questions about this in cross-examination. It must be remembered that the offender is a young man facing sentence for serious offending. Due allowances must be made for this. Given the offender’s evidence and the evidence of his mother I am prepared to make a finding on balance that the offender is remorseful.

59. I have no note or memory of either counsel addressing on the likelihood of re-offending and the prospects for rehabilitation. The offender is a young man of 20 years of age with only two very minor matters on his record. He was well-presented. I accept that he is remorseful. He has definite plans for work and hopefully will complete his apprenticeship. In all of the circumstances I am prepared to find on balance that the offender is unlikely to re-offend and further I am prepared to find on balance that he has good prospects of rehabilitation.

Other submissions and general remarks

60. Mr Keller put that the offender was not as sophisticated as others of his age. It was put that it would be appropriate to deal with the offender pursuant to Part 3 of Division 4 of the Children (Criminal Proceedings) Act. I have dealt with that issue earlier in these remarks in some detail.

61. The submissions continued that the offender was of the opinion that the offender was 15. I presume that this submission went to the issue of objective seriousness of the offending. I have given reasons and made findings on that issue. It was submitted that it would be appropriate to deal with the offender pursuant to the provisions of s 33(1)(a) or s 33(1)(b) of the Children (Criminal Proceedings) Act. I indicated at the time and I maintain the position initially stated that either of those outcomes would be inadequate given the age of the offender and the age difference between the offender and the victim.

62. When asked about the Crown’s submission on the sentence to imposed the Crown Prosecutor submitted that the threshold in s 5 of the Crimes (Sentencing Procedure) Act, 1999 was certainly crossed. The Crown was obliged to cover the possibility that the matter would be dealt with according to law. As I understood the submissions, the Crown’s primary submission was to impose a sentence of full time custody. As I am not dealing with the offender according to law the provisions of the Crimes (Sentencing Procedure) Act have no work to do in this sentencing exercise. The relevant provision in the Children (Criminal Proceedings) Act is s 33(2) which relevantly provides:

The Children’s Court shall not deal with a person under subsection (1) (g) unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection (1) (a)–(f1).

63. The Crown in brief supplementary submissions today put that given the age of the offender and the nature of the offending it would still nevertheless be appropriate to impose a custodial sentence perhaps suspended.

64. Subsection (1)(g) relates to the imposition of a Control Order, meaning a custodial sentence. Despite the recent amendments to the Crimes (Sentencing Procedure) Act pursuant to s 33(1B) of the Children (Criminal Proceedings) Act a court exercising jurisdiction under that Act is able to suspend a Control Order but for no longer than the order. In all of the circumstances given the subjective material noting that the offender is to be dealt with pursuant to the Children (Criminal Proceedings) Act I am unable to come to the conclusion that it is “wholly inappropriate” to deal with the matters other than by imposition of Control Orders.

65. It was also submitted that I exercise a discretion in order that the offender not be subject to the Child Protection (Offenders Registration) Act 2000. The Crown strongly opposed that submission. Relevantly s 3C of the Child Protection (Offender’s Registration) Act provides:

(1)    A court that sentences a person for a sexual offence committed by the person when the person was a child may make an order declaring that the person is not to be treated as a registrable person for the purposes of this Act in respect of that offence.

(2)    While the order remains in force, the person is not a registrable person under this Act because of that offence.

(3)    A court may make an order under this section only if:

(a)  the victim of the offence was under the age of 18 years at the time that the offence was committed, and

(b)  the person has not previously been convicted of any other Class 1 offence or Class 2 offence, and

(c)  the court does not impose in respect of the offence:

(i)  a sentence of full-time detention, or

(ii)  a control order (unless the court also, by order, suspends the execution of the control order), and

(d)  the court is satisfied that the person does not pose a risk to the lives or sexual safety of one or more children, or of children generally.

(4)    This section applies only if the sexual offence concerned is a registrable offence and does not limit section 3A (2) (c) as it applies to offences committed by children.

(5)    If an order is made under this section, the order is taken, for the purpose of any provisions that enable the Crown or a prosecutor to appeal against a sentence imposed on the person, to be a part of the person’s sentence.

(6)    In this section:

“control order” means an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.

“full-time detention” has the same meaning as in the Crimes (Sentencing Procedure) Act 1999.

“sexual offence” means the following offences regardless of when the offence occurred:

(a) an offence under a provision of Division 10, 10A, 15 or 15A of Part 3 of the Crimes Act 1900 or under section 91J, 91K or 91L of that Act,

(b)  an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c) an offence under section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or child abuse material,

(d) an offence under Subdivision D of Division 474 of Part 10.6 of the Criminal Code of the Commonwealth,

(e)  an offence of attempting to commit any offence referred to in paragraphs (a)–(d),

(f)  an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(e).

66. The Crown maintained in submissions that the offender ought be subject to registration because of the nature of the offence and for the protection of children. Those are valid issues. It seems to me that before I could make the order sought by counsel for the offender the court would need to impose a sentence other than a custodial sentence, which would include a suspended Control Order pursuant to s 33(1B) of the Children (Criminal Proceedings) Act and further I would need to conclude that the offender has not previously been convicted of a Class 1 or Class 2 offence and that I am satisfied that the person does not pose a risk to the lives or sexual safety of one or more children or of children generally.

67. The Act does not appear to define whether such findings should be on balance or beyond reasonable doubt, nor is there any guidance as to whether the offender or the Crown has the onus. I proceed on the basis that it is the offender who has the onus. There is no doubt that the offender has not previously been convicted of a Class 1 or Class 2 offence. The issues are the sentence to be imposed and whether I am satisfied that the offender does not pose the risk as set out in the legislation. I will proceed on the basis in the absence of any guidance in the Act that the situation is analogous to Olbrich v The Queen (1999) 199 CLR 270 (in particular at [27]) and that the finding need only be made on the balance of probabilities.

68. These findings are predictive and can only be made on the material that is available to the court at the time the matter is before the court and the finding is made. In all of the circumstances noting the lack of prior offending and the offender’s evidence of remorse, his mother’s evidence and the evidence from the offender that he will make better choices in the future and ensure that any partner is of consenting age, I am prepared to make the finding that the offender does not pose a risk to the lives or sexual safety of one or more children or of children generally. The victim was under the age of 18 years at the time of the commission of the offences.

69. Section 14(2) of the Children (Criminal Proceedings) Act provides that a court dealing with a juvenile offender over 16 years of age but under 18 years of age has a discretion to record a conviction where the matter is dealt with summarily. The matters before this court are being dealt with on indictment and accordingly this court is without that discretion. That discretion would have reposed in the Children’s Court if the matters had initially been dealt with in that jurisdiction. This is another opportunity the offender has lost.

70. However, even if this court did have a discretion noting that the offender was only two days from his 18th birthday, the age difference between the offender and the victim and the offending generally I would record convictions.

Orders

71. I deal with the offender by applying the provisions of the Children (Criminal Proceedings) Act, 1987 and in particular Division 4 of Part 3 of that Act.

72. In respect of the matters to which the offender pleaded guilty he is convicted.

73. In each matter pursuant to s. 33(1)(e) of the Children (Criminal Proceedings) Act, 1987 the offender is released on Probation for a period of two years. Those orders of Probation are each conditioned that the offender:

1. Be of good behaviour; and

2. Appear for sentence in respect of any breach committed with the period of Probation; and

3. For the period of Probation or such shorter period as might be deemed appropriate accept the supervision of the Department of Community Corrections; and

4. Notify the Registrar of this court of any change of address.

74. Pursuant to section 3C(1) of the Child Protection (Offenders Registration) Act 2000 I declare that the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he has been sentenced today 16 April 2019.

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Amendments

17 April 2019 - Anonymised

Decision last updated: 17 April 2019