R v RJ

[2019] NSWDC 468

District Court

New South Wales

Medium Neutral Citation:	R v RJ [2019] NSWDC 468
Hearing dates:	4/4/19-16/4/19, 28/6/19, 25/7/19
Date of orders:	26 July 0019
Decision date:	25 July 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate total term of two years, nine months and a non‑parole period of nine months, to date from today. To be served as a juvenile offender.
Catchwords:	Crime – sentence – juvenile - sexual intercourse with child under ten - indecent assault of child under 16
Legislation Cited:	Children (Criminal Proceedings) Act NSW 1987 Crimes Act NSW 1900
Cases Cited:	PWB v The Queen [2011] NSWCCA 84
Category:	Sentence
Parties:	DPP (Prosecution) RJ (Offender)
Representation:	Counsel: Ms S Gul for DPP Mr B Brassil for Offender
File Number(s):	2016/138484
Publication restriction:	Non-publication order in relation to the complainant and the offender.

SENTENCE

1. The offender stood trial before a jury from 9 April until 16 April 2019, when he was found guilty on all five counts.  The offences for which he is to be sentenced are:  two offences of sexual intercourse with a child aged under ten, that being an offence under Crimes Act NSW 1900, s 66A; and three offences of indecent assault of a child aged under 16, that being an offence under Crimes Act, s 61M(2).

2. The maximum penalty for an offence against s 66A changed during the period between the two offences. For count 2 the maximum penalty is 25 years' imprisonment. For count 5 the maximum penalty is life imprisonment, as a result of amendments that commenced in June 2015. The maximum penalty under s 61M(2), for counts 1, 3 and 4, is ten years' imprisonment. Although each of the offences is ordinarily subject to standard non‑parole periods, these do not apply because the offender was a child at the relevant time.

3. I am required to make findings of fact in relation to the circumstances of the offending which must be consistent with the jury verdicts.  The Crown bears the onus of satisfying me beyond reasonable doubt of anything adverse to the offender and the offender has the onus of proving any matters in mitigation, on the balance of probabilities.  I find the following facts.

4. The offender was born on 7 June 2000 and was aged 14 to 15 at the time of the offences.  The complainant was born on 31 December 2007 and was aged seven at the time of the offences.  The complainant and his mother came to know the offender and his family through their mutual attendance at boxing and martial arts classes in 2014 and 2015.  Through this contact, the complainant's mother and the offender's mother became close friends and spent a lot of time together, which led to the offender having frequent contact with the complainant.

5. The offender and his parents and younger brother lived in a house in Blacktown.  In mid‑2015, the complainant and his mother moved to a granny flat in Blacktown, which was next door to a house occupied by the offender's uncle and his family.  As a result of this move, the offender and his family had increased contact with the complainant and his mother, including contact in their respective homes.  During 2015, the offender's uncle was renovating the house next door to where the complainant and his mother lived.  These renovations were largely completed by about December 2015.

6. On 12 December 2015, there was a gathering at the house, which a number of adults and children attended.  It was during this event that the offending came to light.  During the day, the offender and the complainant had been playing basketball in the driveway of the complainant's house.  That house was being attended from time to time by various people, for a number of purposes, such as bringing buckets of water to the house under renovation.

7. On one of her visits to the house, the complainant's mother observed, through a window, the offender and the complainant walking out of the complainant's bedroom.  When the mother opened the front door of the house, she was face‑to‑face with the offender and noticed, as she said, him "adjusting himself" and that, through his pants, she could see that he appeared to have an erect penis.  She also noticed that the complainant victim was wearing different pants.  She asked the boys what they had been doing and the offender said, "[The complainant] just changed his shorts because we were playing basketball."  Although the mother then returned to the house next door, she came back to her own house shortly thereafter and saw the two boys watching TV.

8. When alone with the complainant, the complainant's mother asked him a number of times what he and the offender had been doing.  The complainant victim persistently responded with, "Why do you want to know?" in a manner that indicated he did not wish to respond.  Eventually, the mother asked the complainant directly, "Did (the offender) touch your habora?"  "Habora" is apparently the Arabic word for penis.  In response, the complainant nodded his head and said, "Yes."  After this, the complainant's mother questioned the complainant further and he told her that this was not the first time, that it had happened before and that the offender had told him it was their secret.

9. After this disclosure, a meeting took place between the families, in which the complainant confirmed he had been touched on the penis by the offender and in which the offender denied he had done so.  Thereafter, there was a lot of communication, much of it by text message, in which the two mothers discussed the matter and what should be done about it.

10. About two or three nights after the initial disclosure, the complainant's mother asked the complainant further questions about what the offender had done.  This led to the complainant demonstrating that the offender had moved his fingers up and down on the complainant's penis.

11. A couple of weeks later, the mother spoke with officers of the Department of Family and Community Services, who told her that an officer from JIRT, that is, Joint Investigation Response Team, would contact her.  On 23 February 2016, the complainant and his mother attended at a JIRT office, where the complainant was interviewed.  He told the interviewing officer that the offender had touched him on his rude part, or "doodle", and that then he started to do it "at the back...like, at the butt" with his hands, and that he put his finger "up my butt".  The complainant said that he reacted by saying, "Ow.  Ow.  Stop it", but the offender kept doing it.  These are the facts on which counts 1 and 2 are based.  The complainant said this had happened a number of times and that it occurred in the offender's bedroom.  This evidence was placed before the jury as context.

12. When asked to describe the last time anything happened, the complainant said it was an occasion when he and the offender were in the complainant's bedroom and "my mum found out".  He said that on this occasion the offender pulled down the complainant's pants and touched his doodle with his hand and then touched his doodle with his own doodle and that, after this, the offender put his finger and his doodle into his "bottom hole".  He said he knew this because he was bent over the bed and looked under and saw, and that he could also feel the offender's nail.  These are the facts on which counts 3, 4 and 5, respectively, are based.

13. The complainant said that it stopped when the offender, on this occasion, heard the door move and that, shortly after, the complainant's mother arrived.  On 22 June 2017, the complainant was again interviewed by JIRT concerning the allegation that the offender had touched his "doodle" with the offender's doodle, but he said he was unable to recall anything more.  Also, earlier, on 2 March 2016, the complainant had been medically examined at Westmead Children's Hospital, but, perhaps unsurprisingly, no abnormality was detected at that time.

14. Turning then to the objective seriousness of the offences.  The maximum penalties make plain that the offences must be regarded as very serious, but, of course, that question will also depend on the particular circumstances of the case.  Clearly, the offending making up count 5 is the most serious, involving the penetration of the complainant's anus, even if only to the slightest degree, by the offender's penis and finger.  It is also clear that this and each of the offences were against the will of the complainant, who told the offender to stop.

15. Count 2 is the next most‑serious offence, involving digital penetration of the complainant's anus, in circumstances where, according to the complainant, it "started hurting" and he asked or told the offender to "Stop it" but the offender kept doing it.

16. The remaining offending, involving the touching of the complainant's penis by the offender's hand and his own penis, while not as serious, still represents serious breaches of the criminal law.  The offending in counts 3 to 5 is aggravated by reason that it occurred in the home of the victim.  Each of the offences are also aggravated because the complainant was especially vulnerable, given he was only seven years old and, therefore, considerably younger and more vulnerable than if he had been closer to the ages of ten years or 16 years, which constitute elements of the two types of offence for which I must impose sentence:  see PWB v The Queen [2011] NSWCCA 84 at para 12.

17. Counsel for the offender submitted that the complainant has, effectively, forgotten the incidents and that the offending is therefore less objectively serious.  I do not accept this submission.  While the complainant said in his interviews that he could not remember some aspects of the offences, I do not accept that this is a basis to find that he has forgotten them and, implicitly, that they have had little or no lasting effect on him.  In recent years, Courts have acquired a greater appreciation of the adverse effects that sexual abuse has on children and it cannot be assumed, just because a child victim told police he remembers little about an incident, that this means he was unaffected by it or had forgotten it.  The complainant's asserted lack of memory in this case as to some details more likely arises, in my view, from his embarrassment in speaking about such matters and perhaps also in the common but misguided tendency of many victims to assume that in some way they are themselves to blame for the abuse.

18. In summary, I do not accept as a mitigating factor that the complainant has not been adversely affected by the assaults.  However, in the absence of evidence, I am not in a position to find that the offences are aggravated by having caused substantial emotional or other injury to the complainant.  Nor do I accept the argument by counsel for the offender that there was a relatively small age difference between the seven‑year‑old complainant and the 14 to 15‑year‑old offender.  That is a substantial age difference and I do not regard this as a mitigating factor, notwithstanding the fact that, in many cases that come before Courts, offenders are many, many years older than victims.

19. In my view, the three indecent assault offences, being counts 1, 3 and 4, and the first sexual intercourse offence, count 2, are just below the midrange of objective seriousness but the offending in count 5 is at least in the midrange.

20. Turning then to subjective matters.  The offender is now 19 years old and was 14 to 15 at the time of offending.  He is of prior good character.  He is employed and in the final year of an apprenticeship in carpentry.  Although his parents are separated, he has a supportive family and a good relationship with his girlfriend of two years standing.  The Juvenile Justice report confirms the offender's background and that, although there were relationship difficulties between his parents before their separation, the offender's relationship with both parents has in recent times been positive.  The report also notes that the offender associates with a positive and prosocial peer group.

21. Exhibit A on sentence includes a document from the offender, referred to in defence material as an apology letter.  However, that is a mis‑description because the letter contains no apology for the offences, which the offender continues to deny.  The letter does, however, attest to the offender's general prosocial attitudes and is some evidence of his wish to continue to better himself.

22. As the offender continues to deny the offences, there is no evidence of contrition or remorse.  However, I think his prospects of rehabilitation are good, given the various positive matters to which I have referred.  The psychological report of Sam Borenstein concludes that, although the offender is cognitively intact and has no serious psychiatric disorder, he does present with extremely severe symptoms of depressed mood and anxiety and moderate stress.  Mr Borenstein concludes that the offender has an adjustment disorder, with mixed anxiety and depressed mood, which is likely due to the stress associated with the criminal process experienced over a number of years and at a young age.  I accept Mr Borenstein's view that a term of imprisonment will impact very negatively on the offender's mental state.  These are matters I have weighed carefully in determining the appropriate penalty.

23. The effects of delay require consideration in this case.  The offender was arrested and charged on 5 May 2016, when he was 15 years, 11 months old, and has been subject to bail conditions since then.  He is now just over 19.  None of that delay was caused by him.  The authorities on delay state that the focus must be on the effects of any delay on the offender.  In my view, the delay in this case is of relevance.  The adverse effect of delay on the offender is supported by his evidence on sentence, by statements from his mother and girlfriend and in the psychological report, which refers to the "obvious loss of his adolescent years".  Quite apart, however, from this comment by the psychologist, it seems to me that a delay of three years in which the offender was presumably in a state of uncertainty and stress represents a considerable proportion of his chronological age and occurred during an important stage of his maturation towards adulthood.  There is also evidence that the offender has lost a number of jobs because of taking time off to attend Court on occasions where the trial did not proceed to finality.  In these circumstances, the impact of delay on the offender is a matter I take into account in determining the appropriate sentence.

24. Counts 2 and 5 must be dealt with according to law because they are "serious children's indictable offences", under the legislation.  The other three offences may be dealt with either according to law or under the Children (Criminal Proceedings) Act NSW 1987.  Section 18(1A) of that Act sets out the matters I must consider in determining which of these alternatives to adopt, and I have had regard to each of those matters. In my view, the most appropriate course of action is to deal with all of the offences according to law, due to the relative seriousness of the offences, the current age of the offender and the fact that the offending forms part of the same factual matrix as the two offences for which the offender must be dealt with according to law. In my view, it would, in these circumstances, be artificial to deal with the three indecent assault offences under a different sentencing regime. However, I must still have regard to the important principles set out in s 6(1) of the Children (Criminal Proceedings) Act in determining the sentence for all five offences.  I have had regard to all of those principles but the most relevant ones in this case, it seems to me, are:

"(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...to allow the education or employment of a child to proceed without interruption,

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

(e) that the penalty...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,

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

25. There is also a fundamental principle that, in sentencing a young person, greater weight must be given by me to rehabilitation and less weight to deterrence.  That is in part because children and adolescents do not have the cognitive and psychological maturity of adults and have more trouble regulating their moods and impulses.  As a result, considerable flexibility is required in sentencing.  In applying these principles, I am conscious of the fact that the offender is no longer a child; however, those principles remain fundamentally important, given the offender's age at the time of offending and given that, in the absence of delay, he would ordinarily have been sentenced while still a child.

26. I have considered whether any penalty short of imprisonment could appropriately be imposed.  I have had regard to the objective seriousness of the offences, the various subjective matters, the purposes of sentencing and the principles in sentencing a young offender, as well as all the other matters to which I have referred.  Having done so, I have concluded that a sentence of imprisonment is the only appropriate penalty.  I intend to use the aggregate sentencing provisions.  If I had not done so, there would have been some accumulation because of the number of offences.  Had I not imposed an aggregate sentence, the terms I would have imposed would have been four months on count 1, five months on count 3, six months on count 4, 12 months on count 2 and 18 months for the offence in count 5.  I find special circumstances for varying the statutory ratio of non‑parole period to head sentence, due to the offender's youth, this being his first time in custody, his good prospects of rehabilitation and the desirability of there being some length of supervision upon his release to parole.

27. The offender is convicted. I impose an aggregate head sentence of two years, nine months and I fix a non‑parole period of nine months, dating from today. The offender will be eligible for release on parole on 24 April 2020 and the overall sentence will expire on 24 April 2022.

28. I have considered whether that sentence could appropriately be served by means of a community‑based order, in the nature of a Community Corrections order.  However, I am of the view that a period of full time custody is the only appropriate penalty, given the various matters to which I have referred.

29. Pursuant to s 19 of the Children (Criminal Proceedings) Act, I am satisfied that there are special circumstances justifying the detention of the offender as a juvenile because there is an unacceptable risk to him of physical or psychological harm in an adult prison, due to the nature of his offences, his relative youth and lack of prior exposure to the prison system.

30. I order, therefore, that the period of imprisonment be served as a juvenile offender.

Decision last updated: 05 September 2019