R v ROK

Case •

[2021] NSWDC 448

•

01 September 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v ROK [2021] NSWDC 448
Hearing dates: 27 July 2021
Date of orders: 1 September 2021
Decision date: 01 September 2021
Jurisdiction:Criminal
Before: Lerve DCJ
Decision: The young person is sentenced to an aggregate sentence of 4 years with a non-parole period of 2 years, to be served in a juvenile justice institution.
Catchwords:

CRIME – sexual intercourse with child under 10 – incite child to sexually touch

SENTENCING – young offender – plea of guilty – mild intellectual disability – subject to conditional liberty – principles in dealing with juvenile offenders – victim impact statement – Bugmy principles – accumulation of sentences – aggregate sentence

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Jolly v R [2013] NSWCCA 76

MLP v R (2006) 164 A Crim R 93

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v BA [2014] NSWCCA 148

R v Gavel [2014] NSWCCA 56

R v KT [2008] NSWCCA 51

R v MW [2019] NSWDC 307

R v PGM [2006] NSWCCA 310

R v Tuala [2015] NSWCCA 8

Tepania v R [2018] NSWCCA 247

Thammavongsa v R (2015) 251 A Crim R 342

Category:Sentence
Parties: Regina
ROK (a minor)
Representation:

Counsel:
Mr F Coyne (for the Young Person)

Solicitors:
Ms J Dawson (ODPP, for the Crown)
File Number(s): 2020/240575
Publication restriction: There must be no publication of the names of the victims or anything that might tend to identify them. There must be no publication of the name of the offender or anything that might tend to identify him.

REMARKS ON SENTENCE

There must be no publication of the names of the victims or anything that might tend to identify them. There must be no publication of the name of the offender or anything that might tend to identify him.

  1. The young person appeared at the Wagga Wagga Children's Court on 7 April 2021 and pleaded guilty to four charges, namely that

H75897415 Sequence 1:

(He) on 11 August 2020 at Ashmont in the State of New South Wales did have sexual intercourse with JL a child then under the age of ten years namely seven years, contrary to s 66A(1) of the Crimes Act, 1900, and further:

Sequence 2:

(He) on 11 August 2020 at Ashmont in the State of New South Wales did have sexual intercourse with SL a child then under the age of ten years namely six years, contrary to s 66A(1) of the Crimes Act, and further:

Sequence 3:

(He) on 11 August 2020 at Ashmont in the State of New South Wales did have sexual intercourse with JL a child then under the age of ten years namely seven years, contrary to s 66A(1) of the Crimes Act, and further:

Sequence 4:

(He) on 11 August 2020 at Ashmont in the State of New South Wales did incite NL a child of or above the age of ten years and under the age of sixteen years namely 11 years to sexually touch the young person ROK, contrary to s 66DB(b) of the Crimes Act.

  1. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 27 July 2021. The young person is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

  2. JL and SL are brothers. NL is a neighbour.

  3. The three offences contrary to s 66A(1) of the Crimes Act are serious children's indictable offences within the meaning of s 3(1) of the Children (Criminal Proceedings) Act 1987 and accordingly must be dealt with according to law. Sequence 4, i.e. the charge of incite sexual touching, is not a serious children's indictable offence. Counsel for the young person however did not make any submission to the effect that that matter not be dealt with according to law.

  4. The maximum penalty for the offences of sexual intercourse with a child under 10 years of age contrary to s 66A(1) of the Crimes Act is life imprisonment. Although Parliament has specified a standard non-parole period of 15 years the standard non parole period does not apply in this matter as the offender is a juvenile. The maximum penalty in respect of the charge of incite sexual touching is 10 years imprisonment.

Facts

  1. The facts are before the court by way of a set of agreed facts within the Crown tender bundle exhibit A on sentence. For the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt.

  2. The dates of birth of the victims and the offender are contained within the agreed facts. The offender was 15 at the time of the offending and is 16 now. The victim JL was eight years of age, the victim SL was six years of age and the victim NL was 11 years of age. The victims JL and SL who are brothers lived with their parents and siblings at an address in suburban Wagga Wagga. NL lived with his mother and sibling next door to JL and SL.

  3. On 11 August 2020 JL, SL and NL were playing together in the front yard of the home of JL and SL. At some point during the evening the young person went to the home and asked if he could play with the children. They agreed. The young person suggested that they all play a game called "Dogs" and he led them to the section of the rear yard that runs adjacent to the house.

  4. The young person pulled his pants down and told JL and SL that they "had to suck his dick" and that if they did not suck his penis he would throw them over the fence. NL was nearby in the yard.

  5. The young person then turned to JL and told him to pull his pants down. JL complied and the young person stood behind him and inserted his penis into JL's anus, which is the conduct to which sequence 1 relates. NL witnessed this incident. The young person then told JL to face him, which he did. The young person inserted his penis into JL's mouth which is the conduct to which sequence 3 relates.

  6. The young person then told SL to kneel on the ground in front of him and suck his penis. SL did as he was directed and the young person inserted his penis into SL's mouth, which is the conduct to which sequence 2 relates.

  7. The young person took his penis out of SL's mouth and asked NL to suck his penis. He told NL that if he did not do as he was told the young person would not be his friend. NL said he did not care and walked into the house.

  8. JL's sister and NL's sister had been inside playing. At some point JL's sister looked out the window and observed the young person inserting his penis into JL's anus.

  9. The agreed facts then go into considerable detail as to the complaint made by the children. NL entered the house and told his and JL's sisters what he had witnessed outside between the young person and JL. JL's sister went outside and screamed, "fuck off you slut, you're a slut, fuck off, we don't want you here". This alerted JL's mother who was on the front porch smoking a cigarette. She walked around and told JL's sister to go inside and have a shower. The sister said, "make sure that slut goes home and never comes back". The children's mother told the young person to go home, which he did.

  10. While the children's mother was preparing dinner she was approached by the sister who said, "(Young person) put his cock in (JL's) arse". JL went down the hallway punching the walls and said, "I'm not sayin' nothin'".

  11. The mother went to SL who told her, "Yes I sucked (young person's) dick, I know how to suck a dick. If I didn't he said he would throw me over to the dogs next door…(young person) taught us new things. He fucked (JL) in the arse". The mother then spoke to the sister who told her that she had seen the young person and JL with their pants down and she then said, "He put it right up his arse…(young person) was behind (JL) and (young person) had his hands around (JL's) stomach".

  12. At about 7pm that evening the parents of JL and SL went to the home of the young person, some few doors away. The mother of JL and SL told the young person and his father. The young person did not deny the allegations but maintained the other boys held him down and forced him to do it. The mother of JL and SL told the young person's father that she was going to report the matter to the police.

  13. Upon arriving home, the mother of JL and SL again spoke to them and told them of what the young person had said. JL told his mother that no one held anyone down and that the young person held him tight on his stomach. JL's mother asked whether the young person hurt him and asked whether the young person put his penis in JL's anus or just the cheeks. JL said yes and cried and told his mother that when it happened he didn't like it.

  14. JL again spoke to his mother on the evening of 12 August 2020 and spoke to his mother further about the young person's conduct including that he took his pants off because the young person threatened to throw him over the fence to the dogs. The matter was reported to police on 13 August 2020 and JL and SL were interviewed by police on 14 August 2020.

  15. The young person was arrested on 18 August 2020. He was interviewed with a support person and made partial admissions.

Assessment

  1. Because of the issue of intellectual impairment it is necessary to go initially to parts of the reports of Dr Emma Collins, Psychologist, which is exhibit 1 and the Confidential Mental Health Report from Justice Health, which is exhibit 2.

  2. At paragraph 26 at p 8 of her report Dr Collins says:

"In summary, the results of prior testing highlight that (young person) has experienced co-morbid neurodevelopmental disorders. Consistent scores in the extremely low range for IQ and adaptive behaviour confirm that (young person) meets the criterial for an intellectual disability".   

  1. A little earlier in her report Dr Collins (paragraph 22) sets out the history of cognitive testing noting that in 2008 the young person was diagnosed with mild intellectual disability, which was also the result of testing in 2016. In 2020 testing found that functioning was extremely low across all domains.

  2. Further, at paragraph 48 of her report Dr Collins opines:

"In summary, (young person) meets the criterial for ADHD, ODD and conduct disorder. It should be noted that ADHD and ODD are common in individuals with conduct disorder; the presence of all three conditions is associated with significantly poorer outcomes across the lifespan. This means that (young person's) prognosis for improved adjustment into young adulthood is poor".

  1. At p 2 of exhibit 2 under the heading "Current Clinical Issues" the author sets out that the young person has a diagnosis of mild intellectual disability by psychologist Suzanne Baurer in 2016. The diagnosis of mild intellectual disability is repeated at p 3 of the report under the heading "Opinion and Recommendations".

  2. The point of going to the issue of the diagnosis of mild intellectual disability is the effect of the decision of Tepania v R [2018] NSWCCA 247. In that decision Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

  1. His Honour a little later on the issue of moral culpability said at [119]:

“Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”

  1. Neither Dr Collins nor Ms Flinn detail or explain what is meant by the expression "mild intellectual disability". In the matter of R v MW [2019] NSWDC 307 a similar issue arose. In that matter the court had the benefit of a report from an experienced psychologist who said:

“As such Mr W meets the criteria for what, in Australia, is technically called mild intellectual disability. The word mild should not be misinterpreted in that the condition involves substantial deficits in reasoning, problem solving, planning, abstract thinking, judgements, academic learning and experiential learning."

  1. The point of repeating that in this decision is in an attempt to prevent any misinterpretation of the expression "mild intellectual disability".

  2. During the preparation of these remarks the solicitor instructing counsel for the offending contacted my chambers and asked for this matter to be relisted as further material had come to hand. That material is a report from Raphaella Prowse Harrex who describes herself as a “Provisional Psychologist”, which is marked as exhibit 3 on sentence. The report is countersigned by Ms Rachel Kania, Senior Forensic Psychologist. The report is addressed to the National Disability Insurance Agency (NDIA) and accordingly has not been prepared for the purposes of these proceedings.

  3. At page 1 of the report the author sets out that after further assessment of the young person’s adaptive functioning it is confirmed that the young person meets the criteria for a diagnosis of Intellectual Disability (Moderate). A secondary diagnosis is Attention Deficit Hyperactivity Disorder (ADHD). The report goes on to say (p. 2) that the young person’s social judgment and decision making abilities are poor and caretakers must assist him with life decisions. Further, the young person’s conceptual skills lag markedly behind his peers and he will require ongoing assistance to complete conceptual tasks of day to day life.

  4. Under the heading “Social Interaction” the report (exhibit 3) sets out that the young person has substantial difficulties interacting appropriately with peers his age. Further, due to his disability he is vulnerable to manipulation coercion and bullying by his peers. The young person requires substantial assistance to be able to interact appropriately with others.

  5. The report (exhibit 3) also sets out the young person is unable to learn new skills easily, requires substantial assistance with learning, requires assistance and support to manage self-care activities of daily living and has significant difficulties with aggressive and disruptive behaviours. The term moderate would indicate that the offender’s level of impairment is more serious than what would fall within the category of “mild intellectual disability”.

  6. Going to the offending 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".

  1. 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).

  1. 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…"

  1. McCallum J (as her Honour then was) (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".

  2. Fullerton J in her judgment in R v PGM [2006] NSWCCA 310 at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that:

"…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable".

  1. For more abundant caution I wish to make it plain that I am not finding that the victims were vulnerable for the purposes of enlivening the factor of statutory aggravation within s 21A(2) of the Crimes (Sentencing Procedure) Act, 1999. The age of the victims is taken into account in determining the seriousness of the matters.

  2. The Crown submitted in the written submissions (MFI 1 on sentence) which was amplified in oral submissions that the factor of statutory aggravation contained within s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act is made out in that the offending was committed in the presence of a child. The Crown submitted correctly that the sister of JL and SL and the sister of NL were watching through the window and observed the offending to which sequence 1 relates occur. The other offending was conducted with the other victims being present.

  3. Mr Coyne submitted that although the factor of aggravation is made out I would give it little weight in the particular and peculiar circumstances of SL and NL also being victims.

  4. I understand Mr Coyne's submission. However, JL, SL and NL were all present when the others were being violated by the offender. JL's sister observed the offending to which sequence 1 relates. I am satisfied to the criminal standard that the factor provided for by s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act is made out. However the impact on the sentence is certainly not significant.

  5. In the matter presently under consideration the facts do not set out for how long the acts of penetration occurred in respect of sequences 1, 2 and 3. However I infer from the facts that the penetration was in each case of short duration.

  6. In respect of sequences 1 and 3, JL was 8 years of age and therefore towards the upper end of the age range contemplated by the section. In respect of sequence 2, SL was in about the middle of the age range contemplated by the section. In respect of sequence 1, the intercourse was penile/anal and in respect of sequences 2 and 3 the intercourse was fellatio. In respect of sequences 1 and 3 the age difference between the young person and the victim was about 7 years and in respect of sequence 2 the age difference was 9 years.

  7. The young person threatened each of the victims of throwing them over the fence to the dogs. There was however no additional violence or physical coercion.

  8. In respect of sequence 4, the victim was towards the lower end of the age range contemplated by that section. The age difference was 4 years. The coercion was limited to the young person saying that he would not be friends with the victim, which clearly had no effect on the victim. The nature of the inciting was the young person urging the victim to fellate him.

  9. The Crown's ultimate submission was that sequences 1, 2 and 3 are within the mid-range and that sequence 4 is towards the lower end of range. Mr Coyne for the young person submits (MFI 2 on sentence) the s 66A offences are "towards the mid-range" and sequence 4 is towards the lower end of the range.

  1. Noting the offending, the various factors to which I have referred and taking into account the effect of the decision in Tepania v R, I am of the opinion that sequences 1, 2 and 3 are at the low end of the mid-range. Sequence 4 is towards the lower end of the range of seriousness but not at the bottom of the range.

  2. Sequence 4 is not a serious children's indictable offence and accordingly the court must determine whether to deal with the matter according to law or in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act. Section 18(1A) of that 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:

  1. The seriousness of the indictable offence concerned;

  2. The nature of the indictable offence concerned;

  3. The age and maturity of the person at the time of the offence and at the time of sentencing;

  4. The seriousness, nature and number of any prior offences committed by the person; and

  5. Such other matters as the court considers relevant.”

  1. Although I have determined that the offending to which sequence 4 relates is towards the lower end of the scale of seriousness it remains a serious offence, noting the maximum penalty. The offending is constituted by the young person inciting the victim to fellate him. The young person was 15 at the time of the offending and is now 16. There is the issue of the intellectual disability. The young person has a record of prior offending. None of the prior offending is sexual offending.

  2. Counsel for the young person made no submission that the court deal with sequence 4 in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act. The Court is passing sentence in respect of other offending which is constituted by three offences which carry life imprisonment as a maximum penalty. In all of these circumstances I am firmly of the opinion that it is appropriate to deal with sequence 4 according to law rather than in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act.

Criminal History

  1. The young person has been before the Children's Court on a number of occasions for domestic violence assaults, which Mr Coyne for the young person advised at the sentence hearing related to the young person's parents and grandmother. He has multiple entries recorded against him for Assault and Contravene Apprehended Violence Order. He has not received any sentences of custody. The record is silent as to whether the Children's Court recorded convictions or not. I note that a juvenile offender cannot be convicted of an offence where the offender is less than 16 years of age and accordingly I proceed on the basis that there have been no convictions. There are no matters of a sexual nature recorded against the young person.

  2. The Crown submits that the young person has a history that does not entitle him to any leniency. If I were dealing with an adult with the same number of entries on the record I would have no hesitation in reaching that conclusion. However the young person is a juvenile. I will deal with the history on the basis that the young person is not entitled to same leniency as he would be had there been nothing on his history. Given the emphasis on rehabilitation for juvenile offenders the criminal history does not achieve the same significance in the sentencing exercise as it does with adult offenders.

  3. Further, the young person was subject to a number of orders of conditional liberty in the form of orders of Probation pursuant to s 33(1)(e) of the Children's (Criminal Proceedings) Act. That enlivens the factor of statutory aggravation within s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. However, again, it occurs to me that this will not attain the same weight as it might with an adult offender who was subject to orders of conditional liberty.

Principles in dealing with juvenile offenders

  1. The provisions of s 6 of the Children (Criminal Proceedings) Act must be taken into account and given proper and adequate regard when sentencing juvenile offenders either according to law or in accordance with the Children (Criminal Proceedings) Act. Section 6 of that 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.”

  1. 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, which has been cited with approval numerous times. 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]).”

  1. I also note the effect of the decision of BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159. I also note and have regard to the decision of Thammavongsa v R (2015) 251 A Crim R 342 especially at [84]-[90] per Bellew J (Simpson J (as her Honour then was) and Hulme J agreeing, both with additional comments).

  2. Hodgson JA in BP v R by way of additional comments said at [4]-[5]:

“First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36].

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.”

  1. The offender in the matter presently under consideration is under 18 years of age. I have included the above extract because of what fell from Hodgson JA on the issue of emotional maturity and impulse control developing progressively.

Victim Impact Statement

  1. Before the Court is a short but powerful victim impact statement from the mother of JL and SL. That statement sets out the harm that sexual offending can cause with children.

  2. However, I did not understand the Crown to submit that the statement grounds a submission that there is substantial physical or emotional harm to the victims. In this regard I note the decision of R v Tuala [2015] NSWCCA 8. However as the matters presently under consideration are being dealt with according to law, the effect on the victims is taken into account pursuant to s 3A of the Crimes (Sentencing Procedure) Act, 1999.

Subjective Case for the young person

  1. No oral evidence was called from or on behalf of the young person. However, there is a volume of written material before the Court, including a report by Dr Emma Collins, Psychologist which became Exhibit 1 on sentence and a report from Justice Health which is exhibit 2 on sentence. There is also a Juvenile Background Report as required by s 25 of the Children (Criminal Proceedings) Act. The Background Report is exhibit B.

  2. I will go initially to the report of Dr Collins. The interviews were conducted by audio-visual link. Dr Collins opined (paragraph 3) that there was no evidence of psychotic phenomena. Dr Collins goes on to note (paragraph 9) that FACS (Family & Community Services) records indicate that between March 2005 and August 2008 there were 26 risk of harm reports made. Those included exposure to domestic violence, physical and verbal abuse, inconsistent routine and poor maternal mental health. The young person's father, with whom the young person lived, maintained that he was strongly committed to caring for the young person but had difficulties managing the young person's behaviour. The young person denied any forms of abuse including sexual and physical abuse but as Dr Collins notes (paragraph 15) that is at odds with the FACS reports. It was found that the young person was sexually assaulted when he was 11 years of age. Dr Collins concludes at paragraph 17:

"In summary, (young person) was experienced a number of notable childhood protection risks that have negatively impacted his developmental stability and exacerbated underlying behavioural or emotional concerns..."

  1. These issues i.e. the young person being exposed to domestic violence and the physical and verbal abuse and the other factors in my view enliven the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 reducing the moral culpability of the young person. In this matter it occurs to me that these factors attain quite substantial weight.

  2. Dr Collins goes on to set out that the young person was assessed for intellectual functioning in 2008, 2016 and 2020. In 2008 and 2016 he was found to have a mild intellectual disability and in 2020 was found to have extremely low results across all domains. She summarises at paragraph 26 of her report that:

"…the results of prior testing highlight that (young person) has experienced co-morbid neurodevelopmental disorders. Consistent scores in the extremely low range for IQ and adaptive behaviour confirm (young person) meets the criteria for an intellectual disability…"

  1. The young person was medicated for ADHD in March 2010. At paragraph 31 of her report Dr Collins opines:

"…It is likely that delays to puberty combined with ADHD symptomology have negatively affected the onset and development of psychosocial maturity in (young person's) case. Psychosocial maturity refers to an individual's ability to control their impulses, take the perspective of others, focus on longer-term goals rather than short term gratification and refrain from peer influence".

  1. It was submitted and I accept that the part of the report extracted immediately above establishes a causal connection between the offending and the intellectual disability. A similar submission was made, and is also accepted in respect of paragraph 42 of the report in that the young person achieved significantly elevated scores on the behavioural regulation index which indicates that he experiences problems controlling his behaviour more than 99% of the sample for his age. Other aspects of the report (e.g. paragraphs 49, 50) also support the establishment of a causal connection. However, given what was said by the plurality in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54] the question of causal connection is less important when dealing with intellectual disability rather than a mental condition or mental illness.

  2. Dr Collins noted (paragraph 34) concern relating to the young person's substance use in the context of the diagnosis of ADHD in that cannabis mimics the same negative aspects to executive functioning making an individual increasingly more erratic and impulsive. It seems to me that these issues all go to the need for a generous finding of special circumstances given what is clearly a need for very intensive and very extensive supervision of the young person when he is eventually released from custody.

  3. Further on this issue is what Dr Collins notes at paragraph 39 of her report in that "At interview (young person) advised that he enjoys custody and the training that he is receiving.” As Dr Collins notes custody provides consistency and stability that may otherwise be lacking in the young person’s life in the community and in turn could lead to institutionalisation.

  4. The young person was unable to identify a clear sexual orientation. He did not know about the age of consent but he understood that young children engaging in sexual activity was "bad".

  5. Dr Collins devotes some of her report to a risk assessment, using the PROFESOR scale, which (see paragraph 51) has not been widely validated. The scale assesses an individual's current functioning and areas of risk or protection. Dr Collins says (paragraph 55) that in assessing sexual recidivism in youth it is recommended that categories such as high, moderate and low should be avoided. Rather than come to a conclusion about the risk of re-offending Dr Collins recommends that a number of areas be targeted, those areas including identify appropriate goals, increasing self-esteem and self-regulatory skills, developing strategies to avoid sexually harmful behaviour, developing pro-social peer, improve school and community involvement and increasing problem solving skills. These also go to a finding of special circumstances.

  6. However it is necessary to make a finding to determine whether on balance the young person is unlikely to re-offend and whether there are good prospects of rehabilitation. Given the totality of the material before me including the report of Dr Collins, the Justice Health Report and the Background Report, I could not be satisfied on balance that the young person is unlikely to re-offend or that there were good prospects of rehabilitation. Indeed, regrettably I must find that the prospects of rehabilitation are very guarded.

  1. The Justice Health Report (exhibit 2) confirms that the young person has a diagnosis of Mild Intellectual Disability. It also sets out that the young person appears to have poor communication skills leading to disruptive and aggressive behaviour.

  2. I have extracted parts of exhibit 3, i.e. the later report from Ms Horrex, Psychologist from Juvenile Justice setting out the later diagnosis that the young offender has a moderate intellectual disability when dealing with the seriousness of the matters. I proceed on the basis that the later diagnosis contained in exhibit 3 is correct. A moderate disability is more severe than a mild disability.

  3. Unfortunately I am constrained to comment that the Juvenile Justice Background Report is probably the most negative of such reports I have ever seen, noting that I sat in the Children's Court as a Magistrate in other regional areas over a number of years.

  4. The report sets out that the young person has been physically and verbally abusive to staff at times. Further that he will swear at staff and other inmates to get attention, such behaviour attracting a total of 61 misbehaviour reports since entering custody for bad language, disobedience, harassment, lying, fighting, subversive behaviours, possession of unauthorised articles, stealing and damaging property. He has been placed in segregation for the safety of himself and others. This has to be put into the context of the latest report (exhibit 3) setting out the young offender has a moderate intellectual disability.

  5. However, there is a glint of hope noting that at p 3 of the report the author sets out that the young person actively engages and participates in programmes but that he needs to learn how to relate in an appropriate manner.

  6. The difficulties experienced by his parents and in particular his father in controlling the young person's behaviour is set out in some detail, noting (p 4) that while the young person remained in the community he continued to be belligerent when boundaries were discussed. The difficulties with schooling are also mentioned. The young person is enrolled in a special school but he attended for only a few hours before going into custody. The difficulties with substance abuse are also mentioned in the report. The intellectual disability is noted.

  7. The report goes on to note that the young person engages in counselling to the best of his ability but progress has been slow because of the young person's cognitive limitations. Efforts to build the young person's coping skills and capacity to self-regulate have largely failed because of the history of trauma and the intellectual disability. Once sentenced the young person will commence offence-focused counselling, however the author of the report appears pessimistic about the young person's meaningful participation in that counselling.

  8. I take into account that the young person is physically under developed, principally as a result of the medication and in this regard I note paragraph 28 of Dr Collins' report.

  9. I observe that given the contents of the various reports it will certainly be challenging for the relevant agencies responsible for supervising the young person upon his eventual release from custody.

  10. I now return to the issue of the young person's intellectual disability. In Muldrock v The Queen (2011) 244 CLR 120 the High Court said at [50] (footnotes omitted):

“The assessment that the appellant suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. "Significantly subaverage intellectual functioning" is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:

"A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ (intelligence quotient) ranges. A further category, 'borderline', is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a 'severe' or 'profound' disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a 'mild' level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.' These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential.’" (footnotes omitted)

  1. Further, in Muldrock v The Queen the plurality said at [54]-[55] (footnotes deleted):

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending.”

  1. I also note the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. His Honour said at [177]:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

* Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

* It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

* It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

* It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

* Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

  1. In summary I accept that the moral culpability of the young person is reduced because of his intellectual disability. I accept that he is not an appropriate vehicle for general deterrence. However, general deterrence has far less work to do in a matter involving a juvenile offender than an adult offender. There is nothing within the reports that suggests that the young person's intellectual disability would make custody more onerous. I accept that the disability reduces the impact of specific deterrence. On the material available I could not find at least given the young person's age that he presents more of a danger to the community.

Competing Submissions

  1. Both parties provided quite comprehensive written submissions in the matter. A number of matters raised by the parties have already been addressed. Mr Coyne set out the principles to be applied when sentencing juvenile offenders. I have set those matters out in some detail earlier in these reasons. Mr Coyne on behalf of the offender concedes that the threshold within s 5 of the Crimes (Sentencing Procedure) Act is crossed and that there must be a sentence of custody imposed.

  2. Both parties address on the issue of the objective seriousness of the offences. I have gone into some detail dealing with that issue earlier in these reasons, particularly given the issue of the young person's intellectual disability.

  3. The young person has been in custody solely referrable to these matters since 18 August 2020. It is uncontroversial that the sentence imposed must date from that date. Mr Coyne submitted and I did not understand the Crown to oppose a finding of special circumstances. I have already addressed the justification for a generous finding of special circumstances. Those include in combination the age of the young person, this is his first time in custody and the need for very careful intensive and extensive supervision directed to a substantial number of areas that need attention.

  4. The Crown also addressed on the seriousness of the matters. The Crown also addressed on the issue of the standard non-parole period. As I set out at an early stage of these reasons the standard non-parole period does not apply as the young person is a juvenile offender. I have made findings earlier in these reasons on the various submissions as to aggravating factors.

  5. The matters are being dealt with according to law. I have already referred to s 5(1) of the Crimes (Sentencing Procedure) Act. I am also obliged to give regard and effect to s 3A of that Act, which sets out the purposes of punishment, namely:

  1. to ensure that the offender is adequately punished for the offence,

  2. to prevent crime by deterring the offender and other persons from committing similar offences,

  3. to protect the community from the offender,

  4. to promote the rehabilitation of the offender,

  5. to make the offender accountable for his or her actions,

  6. to denounce the conduct of the offender, and

  7. to recognise the harm done to the victim of the crime and the community.

  1. Both parties addressed on the effect of s 19 of the Children (Criminal Proceedings) Act. Mr Coyne submits that the young person should serve any sentence of custody in a juvenile institution. I observe that physically the young person is very small for his age. Given his physical size and the intellectual disability I am more than satisfied that the young person is vulnerable. Accordingly I am satisfied that this amounts to "special circumstances" using that expression within s 19(3)(a) of the Children (Criminal Proceedings) Act. However, pursuant to s 19(2) of that Act the young person would not be able to serve his sentence in juvenile institution after reaching the age of 21 unless the sentence is such that s 19(2)(a) of the Act is enlivened.

  2. This is an appropriate matter to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. I accept that at first appearances the indicative sentences and the total sentence will seem to be very light compared to the maximum penalty and the offending if the offending is taken in isolation. However, the sentence is being imposed on a juvenile offender with a moderate intellectual disability. Decisions such as Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 indicate that sentences for juvenile offenders are significantly lower than for even young adult offenders.

  3. The sentences that would have been imposed had separate sentences been imposed are:

Sequence 1:   Non parole Period of 14 months with a balance of term of 13 months making a total sentence of 2 years 3 months indicating a starting point of 3 years

Sequence 2: Non parole period of 12 months with a balance of term of 12 months making a total sentence of 2 years indicating a starting point of 2 years 9 months

Sequence 3: As for sequence 2

Sequence 4: Total sentence of 6 months (starting point 9 months with rounding down)

  1. If separate sentences were imposed there would need to be some partial accumulation of sentences to recognise the different offending and in particular the different victims.

Orders

  1. In respect of the matters to which the young person has pleaded guilty he is convicted.

  2. The young person is sentenced to an aggregate sentence of 4 years with a non-parole period of 2 years.

  3. The non-parole period commenced on 18 August 2020 and will expire on 17 August 2022. The balance of term will commence on 18 August 2022 and expire on 17 August 2024.

  4. The non-parole period is 50% of the total sentence which indicates a finding of special circumstances, the reasons for which have been enunciated within these reasons.

  5. Pursuant to s 19 of the Children (Criminal Proceedings) Act I direct that the young person serve the sentence in a juvenile justice institution.

  6. The young person will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

  7. I recommend in the strongest of terms that any release be subject to careful and strict supervision.

  8. I direct a copy of the report of Dr Collins and the Juvenile Justice Background Report and a copy of Exhibit 3 be attached to the relevant warrant that accompanies the young person to custody.

**********

Decision last updated: 02 September 2021

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R v JR [2022] NSWDC 618
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BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37