R v SH

[2024] NSWDC 104

District Court

New South Wales

Medium Neutral Citation:

R v SH [2024] NSWDC 104

Hearing dates:

15 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) A non-publication order is made with respect to s 7 of the Court Suppression and Non-Publication Orders Act2010. I direct that the names of the young person and the victim or any features which might be able to identify either party are to be suppressed.

(2) In respect of the charge to which you have pleaded guilty, you are convicted.

(3) Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a period of imprisonment, you are ordered to comply with a community corrections order in place for 3 years commencing today.

(4) You must attend the Maitland Community Corrections Centre within seven days from today.

(5) The community corrections order will have the following conditions;

(a) You are not to commit any further offences.

(b) You must appear before the Court if called upon to do so at any time.

(c) For the period of the orders, or for any lesser period deemed appropriate, you must accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to ongoing counselling, including for mental health issues and if deemed necessary, a referral to an appropriate sex offender treatment program.

(d) You are not to assault, molest, interfere, stalk, contact or have anything to do with the victim in this matter.

(e) You must obey all reasonable directions of any treating health professional.

(f) You are to visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a mental health treatment plan.

(g) You must visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a referral for psychometric testing to assess any cognitive impairment or autism spectrum disorder.

(6) I make an order pursuant to section 3C(1) of the Child Protection (Offender's Registration) Act 2000 that the young person is not to be treated as a registrable person for the purposes of the Act.

Catchwords:

CRIMINAL – sentence – child sexual intercourse

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Children’s (Criminal Proceedings) Act 1987

Court Suppression and Non-Publication Orders Act2010

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v AA [2017] NSWCCA 84

BM v R [2019] NSWCCA 223

R v KNL [2005] NSWCCA 260

RJA v R [2014] NSWCCA 89

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

Jolly v R [2013] NSWCCA 76

R v Gavel [2014] NSWCCA 56

R v Millwood [2012] NSWCCA 2

Lloyd v R [2022] NSWCCA 18

Paul Campbell v R [2018] NSWCCA 87

R v Andrew Button (a pseudonym) [2021] NSWDC 829

R v DT [2019] NSWDC 673

R v KL [2019] NSWDC 731

R v ROK [2021] NSWDC 448

MS2 & Ors v Regina (2005) 158 A Crim R 93

Category:

Sentence

Parties:

SH (Offender)
Office of the Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr G Kidd (Crown)
Mr G Sundstrom (Defence)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Vasiljevic Legal Practice (Defence)

File Number(s):

2022/229329

Publication restriction:

Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the names of the young person or the victim, or any features which might tend to identify them, are suppressed.

JUDGMENT

1. These are my remarks on sentence in relation to the young person known as SH. For the purpose of these remarks on sentence, he will be referred to as either SH or the young person. He appears before me today and is a juvenile. The victim in relation to this matter is also a juvenile. The victim in relation to the matter is five years old now and was four years at the relevant time, and I will be referring to him throughout this judgment as either the victim or HM.

2. Pursuant to the relevant statutory prohibitions, neither the names of the young person, nor the victim, nor any features which might tend to identify any of them or their families are to be published. In the following remarks, pseudonyms have been used for the various names of persons involved, or connected with the factual background to the offending.

3. On 17 August 2023, the young person pleaded guilty to one count that:

1. Between 23 July 2022 and 24 July 2022 at Rutherford in the state of New South Wales, he did have sexual intercourse with HM, who at the time was a child under 10 years of age, namely 4 years of age, contrary to s 66A(1) of the Crimes Act 1900.

4. The maximum penalty for this offence is imprisonment for life. By virtue of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999, there is no standard non-parole period for this particular offender.

5. I have taken into account the entry of the early guilty plea of this matter in the Children’s Court and I intend to apply a reduction of 25% of what would otherwise be the appropriate sentence. I have also taken into account the statutory maximum penalty which has been set, which as I have already referred to, is imprisonment for life.

FACTS

6. The young person was born on 5 November 2007. The victim was born on 9 July 2018, making their age difference 10 years and 8 months.

7. The victim and the young person are relatives. The young person’s father is in custody, and the young person usually resides with his aunty, who I will refer to as LG. For a period of about three months, he was living with the parents of the victim. The victim suffers from what is described as a sensory processing disorder, autism spectrum disorder, mild receptive language difficulties, and moderate social communications difficulties.

8. During the three month period in which the young person was living with HM’s parents, HM’s mother observed the young person to be frequently on his mobile phone, and she would witness him viewing images of bestiality or cartoon pornography. The young person has previously been suspended from school after using his mobile phone to take inappropriate photos of female students without their knowledge. After that occurred, he moved to a different school during September 2021. Around this time, or shortly thereafter, the victim’s mother became concerned with some of the young person’s behaviour, and decided that she did not want her children left with him if they were unattended.

9. On 23 July 2022, the victim, HM, was aged four and the young person, SH, was aged 14. HM and the young person had been playing together at HM’s grandmother’s house, where the young person was living at that time. At one point during the afternoon, the young person told HM he wanted to, “Put his dick in my mouth,” or words to that effect. HM refused. SH then took his penis out of his clothes, held it, and then put it in HM’s mouth. There is no evidence as to how long this occurred, and the Crown cannot establish beyond a reasonable doubt that the offending went for any longer than a few seconds.

10. Shortly after this occurred, HM went to an adult at the house and made a complaint that SH was being mean to him. The adult later observed that day that HM had been very upset and had, “Turned the toy room upside down,” and that she did not know why he was so upset. The following day HM’s mother asked him about his time the previous day with SH. HM disclosed the offending to his mother. He described the conduct as “wet, sad and yucky”. HM’s mother then contacted the young person by phone and confronted him with the allegations. The young person denied the offending and responded, “Why would I even do something like that?”

11. HM’s mother then went to LG’s house in order to confront the young person about the allegation. She reported the matter to the police the next day. The statement of facts states that HM began having nightmares shortly after this event, which he had not experienced before, and that he became angry, emotional, clingy, withdrawn and sensitive. He had begun telling his mother not to look at him or touch him, and he could not wear certain clothes, and he would continue to talk about having the young person’s dick in his mouth without prompting.

12. On 4 August 2022, the young person attended the Raymond Terrace Police Station, where he was cautioned and placed under arrest.

Objective seriousness

13. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

14. However, the age of the young person is a relevant matter when determining the objective seriousness of the offence, and not just a factor as part of the factual matrix. Cases such as R v AA [2017] NSWCCA 84 at [55] per Beech-Jones J (as his Honour then was) and BM v R [2019] NSWCCA 223 at [16]-[17] are authority for this proposition. Here, the age of the young person was 14 at the relevant time, and he is now 16. The age of the victim is also obviously a relevant consideration. In this case, the victim was four years of age, less than half the statutory age for offences of this nature. The simple proposition set out in cases such as R v KNL [2005] NSWCCA 260 and repeated in RJA v R [2014] NSWCCA 89 is that the younger the child victim, the more serious the offence.

15. In this case, the particular victim involved in the matter was vulnerable not only because of his young age, but also because of the familiar relationship with the young person and also because of the cognitive impairment issues I have set out previously.

16. The disparity in age is a relevant consideration as well in terms of objective seriousness, and here, as I have previously mentioned, the age difference between the victim and the young person was ten years and eight months, which while on one view is a considerable period of time, it is by no means the worst age gap which occurs for offences of this nature.

17. It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy to 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. Authorities for that proposition include R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]; Jolly v R [2013] NSWCCA 76 Bellew J at [72] and R v Gavel [2014] NSWCCA 56 at [97].

18. The Crown has submitted that s 21A(2)(e)(b) of the Crimes (Sentencing Procedure) Act1999 should be considered, that being the fact that the offence happened at the grandmother’s home. The Crown submits that this is relevant to the objective circumstances of the case, rather than as a statutory aggravating feature. Although the offending did not occur in the home of the victim, it was submitted, but rather his grandmother’s home, he was entitled to feel safe there. No submissions to the contrary were made and I accept the Crown’s submission.

19. The Crown also submits that s 21A(2)(k) and (l) of the Crimes (Sentencing Procedure) Act 1999 relating to the breach of trust and vulnerability are also relevant in terms of the objective seriousness, rather than as statutory aggravating factors. Again, I will adopt that course.

20. In this case, the nature of the offending involves oral sex, or to use more formal language, fellatio. The period over which this occurred was unknown but conceded by the Crown that it cannot be proved beyond a reasonable doubt to be more than a few seconds. There was no ejaculation in respect of the offending, and that is a relevant consideration as well when it comes to objective seriousness.

21. The Crown submitted that the offence falls at the lower end of the mid-range. Mr Sundstrom, who appears on behalf of the young person, submitted that the offending is well below the mid-range, and at the lowest end of the range, given the impulsive and opportunistic nature of the offence, its brevity, and the age of the young person at the time.

22. It goes without saying almost that any offence involving sexual intercourse with a 10 year old child, or lower than 10 years of age, is an extremely serious offence which is recognised by the maximum penalty that has been set by the Parliament, however, all matters have their place on a scale of seriousness. The assessment of objective seriousness is made in the context of other matters of this type that come before the Courts.

23. I have gone through, in some detail, the various factors relevant to the finding of objective seriousness in this particular case. Noting the age of the young person, the age of the victim, its brevity, the lack of force, the lack of grooming and the other factors I have set out above, taking all those matters into account, this is not an objectively serious example of what is a very serious offence.

MITIGATING FACTORS

24. With respect to the statutory mitigating factors of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, I take into account that the offence was not planned, the young person has no record and was a person of good character at the relevant time. I also take into account the fact that he has not offended since. There was also a plea of guilty. All of those matters are important in mitigation.

25. With respect to remorse, which is a factor I can consider by virtue of s 21A(3)(i), there is some evidence of the young person’s remorse set out in the report of Dr Bench. Although I am generally cautious about accepting hearsay statements set out in third party reports, given the age of the young person and the difficulty he may have had in either writing a letter or giving evidence in the stressful and unusual environment that he now finds himself in, I am prepared to accept the statements of remorse that he made to Dr Bench, and I will quote those shortly. I accept that he is remorseful.

26. With respect to his prospects of reoffending and rehabilitation, there is limited evidence before me about those two matters, but he has expressed a willingness to attend any programs that are recommended for him, and he does appear, based on the statements set out in Dr Bench’s report, to have some insight into what has occurred and its effects on the victim. I have concluded that the young person has fair prospects of rehabilitation and providing he obtains the help and counselling that is recommended by Dr Bench, this will reduce his risk of reoffending.

27. With respect to whether he was fully aware of the consequences of his action, because of his age or disability, I do find that his age is significant in this matter, and that goes towards mitigation considerations as well.

General Principles

28. There are some general principles for sentencing a person in this particular scenario, which I wish to set out. This is what is described as a serious children’s indictable offence, as defined by the Children’s (Criminal Proceedings) Act 1987. Because of that, there is no alternative other than to deal with the matter according to law. Given the age of the young person at the time of the offending, the principles relating to the sentencing of a juvenile still apply.

29. In passing sentence, when dealing with an offender, who I note was barely at the age of criminal responsibility at the time this offence occurred, s 6 of the Children’s (Criminal Proceedings) Act 1987, is relevant. The court is required to assess the following matters:

“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.”

30. I note that sub-paragraph (h) specifically provides that the effect of the crime on the victim is to be considered, but that this is subject to the other principles set out in paragraphs (a) and (g).

31. I must also have regard to the proper effect of the provisions of s 3A and s 5 of the Crimes (Sentencing Procedure) Act 1987. Section 3A sets out the purposes of punishment. Of particular relevance here is to ensure that the young person is adequately punished for the offence, and in order to ensure that there is a general deterrent effect for others, from committing the same or similar offences.

32. It is also important to protect the community from the young person, and also I stress the importance of his rehabilitation. Section 5(1) of that Act provides, in effect, that a Court should not impose a sentence of imprisonment unless it first comes to a conclusion that there is no other sentence which is appropriate.

33. As is so often the case, where a Court is required to pass sentence in respect of serious offending, there is a real tension between the competing purposes of punishment and rehabilitation. There are many factors in this case pulling in different directions. As McLellan CJ at CL in R v KT [2008] NSWCCA 51 at [21]-[26], in which his Honour summarised relevant authorities to issues of this type, dealing with juvenile offenders, his Honour said this:

[22] “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.

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

[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.

[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. In determining whether a young offender has engaged in “adult behaviour” 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. 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. 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. However, the younger the offender, the greater the weight to be afforded to the element of youth.”

34. I will take that into account when setting my sentence.

Victim Impact Statement

35. In this matter, there were two victim impact statements read to the Court. The first of those was from the victim himself, prepared and read by a social worker who had been assisting him and his family. The second victim impact statement was from the victim’s mother. Those statements were read to the Court. Those statements speak to the harm that this type of offending has on the victim and on their family, both short and long term. Sadly, it appears from the victim impact statements that the young person’s conduct in committing this offence has had an extremely negative effect on their lives and is a constant source of worry and stress. It is hoped that once the sentencing of the young person is completed today, that the victim and his family can move on and no longer focus on this matter, but I recognise that it is far easier to be said than done.

36. I have applied s 30E of the Crimes (Sentencing Procedure) Act 1999 to my application of the victim impact statement and how it will be utilised.

Juvenile Justice Background Reports

37. There were a number of reports provided to the Court about the young person. The first of these was the Juvenile Justice background report, dated 13 March 2024. One of the authors of that report came to court and gave evidence about the services which Communities and Justice can offer a young person by way of supervision. The report stated that the young person, SH, is the only child born to his two parents, that he has four maternal half-brothers, but he has no relationship to either them or to his mother. His father is in custody for arson. He has not had regular contact with his father since his father was placed in custody about five years ago.

38. The young person informed Juvenile Justice report writers that the arson for which his father was placed in custody not only resulted in significant damage to their family home, but also serious injuries to a paternal uncle. His father is expected to be released from custody in 2029. The young person stated that although he occasionally speaks to his father, these conversations make him angry and he finds them triggering.

39. SH does have an extensive history with the Department of Community Services from when he was in the care of his father between 2008 and 2019. These include 17 risk of harm reports. The reports refer to domestic violence, drug and alcohol abuse by his carer, he was suffering from inadequate nutrition, inadequate shelter and homelessness. He was considered to be at risk of psychological, medical and mental health neglect. Between 2019 and 2023, there are further reports that have been held by the Department, but these reports are of a slightly different nature. These were largely written with SH being the point of concern, displaying sexually harmful behaviours both within and out of the home, but the details and frequency of these reports were not referred to.

40. SH reported having difficulty managing his anger throughout primary school, explaining that he would sometimes lash out and swear and make threats towards other students. The deputy principal at one of his schools reported that SH received a suspension following an incident which involved him using his mobile phone to take inappropriate photos of some of his fellow students. There was also a report towards the end of 2023, that he had inappropriately touched a young female student.

41. The Juvenile Justice report concludes that having read the reports of Dr Bench and Mr Lee Knight, which I will both refer to shortly, that in their view there is not “a pattern of sexually harmful behaviours across time. Youth justice has assessed that there are limited protective factors in place which could mitigate SH’s risk of reoffending in the future.” Having read those two reports myself, that is not the conclusion that I draw from them, although I do accept that his future living arrangements appear problematic.

Subjective case

42. With respect to the young person’s subjective case, no oral evidence was called from him or on his behalf. There were, though, the two reports I have just referred to, the report from Mr Lee Knight, who is described as a clinical nurse consultant, and also Dr Christopher Bench.

43. Dealing first with the report of Mr Knight, which was dated 4 April 2023, it is almost 12 months old. The report sets out the family history, which again, refers to SH’s mother leaving him when he was only about two months old, and him being cared for by his father. There has been some contact, as I say, between the young person and his father, but it has been limited. He has been living with his aunty, LG, but that relationship appears strained.

44. The young person told Mr Knight that at the time he committed the offence, he felt, “dizzy, woozy, and felt like he was fading away.” He described the incident as occurring as if it was an out of body experience, but he was conscious at the time, but did not feel like he was really there. He stated that he feels that he blacked out and reported a poor recollection of the events, and was confused as to why he had offended. He initially denied the offending when confronted, as I have already noted. He told Mr Knight that he did not know why he offended.

45. The young person also told Mr Knight that he had been diagnosed with “mild” autism at the age of 10, but never received treatment for it or any other mental health issues. This has not been independently verified. As an aside, I note that the absence of a formal diagnosis or treatment could easily reflect the expense and difficulty in obtaining appointments, or simply reflect the family situation which the young person found himself in, where this type of assessment was either not prioritised or simply not pursued.

46. SH informed Mr Knight that he was bullied in school and he had had his face, on one occasion, smashed into a wall. He reported having outbursts of violence whilst at primary school. He stated that he damaged school property. He was suspended for fighting, and on other occasions for various outbursts.

47. He had been suspended for having inappropriate photographs on his mobile phone which I have already referred to. He was told not to return to school, as he was at a risk of being harmed by other students. SH transferred to a different high school, where he was suspended twice for having outbursts, however the report of Mr Knight is not all grim. SH appears to be a creative young person who enjoys reading, song writing, singing and computer games, hobbies which are to be encouraged. He described, unfortunately, having persecutory ideations, and on occasions, believed that people were watching him, and that he was scared of the dark, but Mr Knight did not consider this to be of a delusional intensity.

48. The young person described to Mr Knight that from time to time, he had intrusive thoughts, but Mr Knight did not regard these of a sufficient quality to be associated with auditory hallucination, and that there were no overt signs or symptoms of psychosis. In Mr Knight’s view, the offender did not appear to be in the early phases of schizophrenia, although I do take that opinion with some caution, given that Mr Knight is neither a clinical, nor forensic psychologist, nor a psychiatrist.

49. The report refers to a tragic incident in the young person’s life where a young friend of his committed suicide and he found her body. It is unnecessary to go into the detail surrounding that, but it continues to haunt him to this day. It does not appear he has ever received any counselling in relation to it. A family friend also died in front of him. Again, it does not appear he received any counselling in relation to that.

50. SH reported to Mr Knight that he identifies as a pansexual person of the male gender. He denied any sexual interest in children. He accepted that he once took photographs at school, with the images focused on the female person’s breasts and genitals.

51. A juvenile sex offender assessment protocol was conducted by Mr Knight on the young person. Mr Knight stresses a series of caveats about what he describes as the, “Predictive validity” of such tests, given they are still being developed and researched, and should not be regarded as a complete picture. Nonetheless, having conducted those tests, Mr Knight does not make any negative conclusions about the young person being a risk for future offending.

52. I note that with respect to questions regarding what are described as “sexualised aggression”, and “sexual drive preoccupation”, the young person scored zero, which I interpret to mean a very low risk. Mr Knight concludes that the young person has an unconfirmed diagnosis of autism spectrum disorder, that he partially meets the criteria for post-traumatic stress disorder, and has significant anger management issues. He believes that the young person might benefit from a formal assessment of an autism spectrum disorder, and engaging with “youth justice”. It is recommended that he accept all reasonable treatment, particularly any sexual offence treatment that might be recommended for him, and that he undergo assessment by a forensic psychiatrist who has an expertise in children and adolescents.

53. The second report placed before the Court on the young person’s behalf is from Dr Christopher Bench, this one dated 19 February 2024. The offender set out the same family history to Dr Bench and I will not repeat it. The young person also referred to the mild autism diagnosis he believed that he may have been given when he was nine or ten years of age. It says that his father was not interested in either acknowledging this or having it treated. He has never been treated for any psychiatric condition or any psychiatric medication.

54. He reported to Dr Bench consistently with what he said to Mr Knight that he had some hallucinations where he hears voices. He described the voice of an old man speaking to him and saying words to the effect of, “You know what you did. You should feel guilty.” The young person also described himself to Dr Bench as pan-sexual and when asked what this meant, the young person said, “It’s when you are attracted to the person itself and not to the body.” He is not on any drugs, medication or alcohol at the time of the offending.

55. With regard to the offending itself, the young person and the victim were in the toy room watching television. The young person said to Dr Bench:

“I had a thought of putting my penis in HM’s mouth. I thought, why would I think that. The urge was building up. I was stressed. It wasn’t right, wasn’t the right thing to do. I just thought, screw it. I put my penis in his mouth for a second or so and then I pulled it out and I thought I’d done something I shouldn't do.”

56. When asked by Dr Bench how he feels about the offence now, the young person said:

“I was a complete idiot back then. I still think I'm an idiot. I should never have had that thought, it’s just wrong. I don't know how else to feel about it. I know saying sorry is not going to fix it. I think it scared him. The person he trusted in his life. I’ve thrown that away.”

57. The young person stated to Dr Bench that he is not a risk of doing such an offence again and that he has taken steps in order to decrease his risk of reoffending such as stopping watching pornography, stopping masturbation and being prepared to meet with anyone from the Department of Communities and Justice who may suggest that he undertake any programs which could assist him.

58. Dr Bench agrees with Mr Knight that the young person possibly meets the criteria for an autism spectrum disorder but he could not reach a firm conclusion without further testing and analysis. Dr Bench described the young person having experienced a highly traumatic neurodevelopment upbringing and in his view, met some of the criteria for a diagnosis of post-traumatic stress disorder although this condition was not actually diagnosed. Dr Bench is concerned with the young person’s hallucinations which could indicate some early signs of schizophrenia but again, it was too early to conclude.

59. Importantly, Dr Bench found that the young person does not meet the criteria for having a paedophilic disorder and that the previous interests in Anime pornography is not what he considers to be child pornography and the previous incident of taking inappropriate photos of female students was something that Dr Bench noted was done on similarly aged peers and conduct which, rightly or wrongly, could be expected of a sexually curious 14 year old. In summary, it appears to me that Dr Bench is not overly troubled by this conduct and it is not regarded as indicating any paedophilic tendencies.

60. Dr Bench states that SH should comply with ongoing mental health care with a GP and be referred to appropriate psychometric testing to assess any cognitive impairment or autism spectrum disorder and potentially be referred to a sex offender treatment program and to comply with pathology required to monitor his compliance with medication he may be given in the future.

MORAL CULPABILITY ISSUES

Mental Health

61. I have set those matters out in detail because an offender’s mental health is relevant on sentence. It can be relevant where it contributes to the offending in a material way and reduce the moral culpability of the offender. It may mean the offender is not a person who is an appropriate vehicle for general deterrence. In some instances custody may weigh more heavily on such a person with a mental health issue, it may reduce or eliminate specific deterrence. Conversely, a person with a mental health issue may present more of a danger to the community in which case specific deterrence may increase. Where there is a causal connection established, mental impairments may affect both the assessment of moral culpability and the objective seriousness of the offence. The nature of the impairment, the nature and circumstances of the offence and the degree of connection between them all must be considered. In such a case, objective seriousness might be reduced substantially, particularly where it indicates that the conduct was not planned, premeditated and without malice.

62. Although there is no firm diagnosis in this instance it is clear from the two reports that I have quoted at length that there is a strong possibility that the young person experiences autism spectrum disorder and perhaps the early stages of schizophrenia. No causal connection is drawn between this offending and those conditions and there was no submission made that I should, so I do not find that there is a causal connection between the mental health issues and the offending such as to lower his moral culpability however, I do certainly take those mental health issues into account as part of his subjective case and the difficulty he would face in custody. I have also found that it lessens the role of general and specific deterrence.

Childhood deprivation

63. The Court has also considered issues of childhood deprivation. Childhood deprivation, in whatever form it takes, can impact on the assessment of the person’s moral culpability in committing the offence before the Court. It can also be relevant when it comes to assessing the person’s subjective case. Whether it is one or the other is largely a matter for the sentencing Court to decide. Identifying whether there is a causal link between childhood deprivation and the offence is not always straightforward as there are often subtleties and nuances.

64. In this instance, the social circumstances in which the young person grew up were ones that I find demonstrate childhood disadvantage. It is well established that disadvantaged backgrounds may mitigate a sentence which would otherwise be appropriate. I also in this case find that the childhood deprivation that he has suffered and which I have already referred to in terms of the social settings that he found himself in with a difficult father, an absent mother and difficult childhood generally with the various issues I have already outlined regarding his unstable childhood will also serve to lessen his moral culpability.

65. The childhood deprivation is in my view, significant. He has no relationship with his mother, his siblings and now, very little with his father. His aunty has no doubt done her best to look after him but in difficult circumstances.

66. Based on the evidence that the young person’s experience of neglect, as referred to the multiple times that he was the subject of reports to the Department of Community Services, this must have had an impact on his psychological development and his appreciation of what is and is not appropriate. The Court cannot assume such issues are somehow matters which should be innately known by a person. As recognised by her Honour Simpson J in the case of R v Millwood [2012] NSWCCA 2, an offender cannot bear equal moral responsibility with a person who did not suffer such childhood disadvantages. Once it is recognised that moral culpability is reduced, as was recognised by McCallum JA in Lloyd v R [2022] NSWCCA 18 at [54], if the promotion of rehabilitation is not given substantial weight, the Court risks punishing an offender for having a dysfunctional childhood. Rehabilitation is a critical consideration in this case.

Comparative cases

67. The Crown referred the Court to a number of comparative cases which was very helpful and I have read them all. I will refer to some of those cases now and I am also going to refer to some other cases, including some District Court decisions which, while not binding on me, illustrate how first instance Courts have dealt with similar matters. The Crown submitted during addressed that a common thread through the cases was the fact that the s 5 threshold set out in the Crimes (Sentencing Procedure) Act1999 was crossed. I may have misunderstood that submission because that proposition is not borne out by the cases which were supplied, nor the Court’s own research. While acknowledging the usual caveats about statistics, the Court notes that of the 95 occasions where offenders have been prosecuted for this particular type of offence since September 2018, 14.7% of those cases have resulted in the imposition of a community corrections order.

68. In the case of PaulCampbell v R [2018] NSWCCA 87, which is one of the cases referred to by the Crown, the Court of Criminal Appeal set out a number of propositions which are useful to bear in mind. That case also dealt with an offence under s 66A of the Crimes Act 1900. Hamill J stated at [38]:

“It is unnecessary to examine in great detail the comparative cases because as the Crown submitted at the first instance and the parties agreed on the hearing of the appeal, each case necessarily turns on its own facts. However, the comparable cases do demonstrate that there is considerable flexibility in sentencing young offenders even there, as here, had the sexual offending been committed by an adult, an extremely long sentence of full time imprisonment would be imposed. The comparable cases included examples of serious sexual offending which did not result in the imposition of full time custodial sentences. In other cases, sentences of full time imprisonment imposed on young offenders resulted in successful appeals and resentencing whereby the applicant was immediately or soon released from custody.”

69. In the case of R v JR [2022] NSWDC 618 there were three s 66A offences committed by a young person. In that instance, he received a 15% discount for the plea of guilty. I note that in this case, the young person appearing before me will receive a 25% discount. In the case of R v JR, the offences involved an offender who was aged between 14 and 15 with a victim who was aged 8 to 9 years of age over the course of the three offences. The first offence involved the young person performing fellatio on the victim. The second and third offences involved the victim performing fellatio on the young person, including holding the victim’s head in position while it occurred. There was also a matter on a Form 1. The Court held that noting the age of the young person and the age of the victim, the brevity and opportunistic nature, the offending was well below the mid-range. In that instance, two community corrections orders were given for 2 years and 6 months and 3 years respectively.

69. In the case of R v Andrew Button (a pseudonym) [2021] NSWDC 829, another District Court case, this was a sentence after trial for an offender who was thirteen years of age at the time of the offending and the victim was five years of age. It involved the victim performing fellatio on the young person. It was an opportunistic incident which occurred on a family holiday. The two children involved, were not related. The young person in that instance suffered from learning disabilities and had been diagnosed with ADHD. In that instance he was sentenced to a 3 years Community Corrections Order.

70. The case of R v DT [2019] NSWDC 673, involved an offender who was 16 to 17 years of age, I note several years older than the offender in the matter currently under consideration. In R v DT, the victim was 9 or 10 years of age. The case involved multiple acts of indecency and sexual intercourse without consent. The young person made full admissions, was remorseful, had good family support and the Court found reasonable prospects of rehabilitation, that he as unlikely to reoffend. The total aggregate sentence imposed upon him was 3 years and 4 months with a non-parole period of 1 year and 8 months. It does not appear that that sentence was subject to an appeal by either party.

71. In R v KL [2019] NSWDC 731, the offender in that matter was 16 years old, the victim was 7 years old. The offending involved penile vaginal intercourse and digital intercourse on separate occasions over the course of one day. The sentencing judge concluded that the penile and vaginal intercourse was well into the mid-range in terms of seriousness and another offence with which he had been charged and sentenced within the low end of the range. In that instance, an aggregate sentence of 2 years and 6 months with a non-parole period of 15 months was imposed. The sentence does not appear to have been subject to an appeal.

72. In R v ROK [2021] NSWDC 448, the young person was sentenced in respect of three counts contrary to s 66A and one count of sexual touching of a child between 10 and 16. An aggregate sentence of 4 years with a non-parole period of 2 years was imposed. The young person was 15 at the time of the offending, the victims were 8 years of age, one was 6 and another 11. The offending conduct involving fellatio and penile and anal intercourse. The young person who was sentenced on that occasion had a mild intellectual disability. There was a history of juvenile offending. The young person in that case was slightly older than the young person in this matter, the victim I note in that instance, the youngest was six years of age. In that matter, counsel appearing for the young person conceded that a full-time custodial sentence was appropriate.

73. I have also had regard to the Court of Criminal Appeal decision referred to by the Crown of BM v R [2019] NSWCCA 223. It is analogous to this matter in that the victim in that matter was 4 or 5 years of age and the young person who committed the act was between 13 years and 10 months and 15 years of age. However, in that instance, the conduct was quite different. In that instance the offending in my view was significantly more serious as it involved including inserting a lollipop stick into a victim’s vagina. There were further counts of aggravated indecent assault which included rubbing the victim’s bare vagina, kissing the victim and grabbing the victim by her buttocks with both of his hands. The offending occurred over a longer period of time than the offending before the Court in this matter. On appeal the sentence was reduced from what had been initially imposed by the District Court with the Court of Criminal Appeal imposing a sentence of 18 months with a non-parole period of 9 months.

74. Finally I refer to the decision of MS2 & Ors v Regina (2005) 158 A Crim R 93, a decision in which Adams J identified two of the reasons why youthfulness of an offender is an important consideration in sentencing. Her Honour stated that:

“In sentencing there is a substantial public interest in the rehabilitation of a young offender and secondly, that immaturity is relevant to culpability or criminality because children do not have adult value judgements, adult experience or adult appreciation of consequences.”

76. I have taken all of those matters into account.

General remarks

77. I now wish to make some general remarks before imposing sentence. During submissions I raised with the parties whether or not the young person would be placed on the Sexual Offender’s Register. The Crown subsequently sent to my chambers a note explaining the position, the effect of which is that in the absence of an order by this Court, a conviction for such an offence under s 61A(1) would inevitably lead to the young person being a registrable person and subject to the provisions of the Child Protection (Offender’s Registration) Act 2000.

78. I have given careful consideration to the aims of that legislation. I am satisfied in the circumstances of the commission of this single offence before me and Dr Bench’s conclusion that the young person does not suffer from a paedophilic disorder and that his photographing of teenage classmates, while not to be condoned, cannot be understood as demonstrating any paedophilia type behaviour. It is appropriate that an order be made pursuant to s 3C(1) of the Child Protection Offender’s Registration Act 2000 that the offender is not to be treated as a registrable person for the purposes of that Act. I am satisfied that the young person does not pose a risk to the lives or sexual safety of one or more children or children generally.

79. The offence before the Court is very serious and indeed, one of the most serious set out in the Crimes Act but there is a very strong subjective case and for offences of its type, it is not the most serious example and, when all of the different types of examples I have just referred to are assessed , it is not a very serious example for what is otherwise a very serious offence. I have come to the conclusion that for a number of reasons, including the age of the young person at the time of the offending, my findings with respect to objective seriousness, the matters in the subjective case and the cases to which I have referred, that despite what is undoubtedly very serious and traumatic offending for both the victim and his family, this is a matter that can be dealt with in a way other than the imposition of a full time custodial sentence.

Orders

80. I now make the following orders:

1. A non-publication order is made with respect to s 7 of the CourtSuppression and Non-Publication Orders Act2010. I direct that the names of the young person and the victim or any features which might be able to identify either party are to be suppressed.

2. In respect of the charge to which you have pleaded guilty, you are convicted.

3. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act1999, instead of imposing a period of imprisonment, you are ordered to comply with a community corrections order in place for 3 years commencing today.

4. You must attend the Maitland Community Corrections Centre within seven days from today.

5. The community corrections order will have the following conditions;

1. You are not to commit any further offences.

2. You must appear before the Court if called upon to do so at any time.

3. For the period of the orders, or for any lesser period deemed appropriate, you must accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to ongoing counselling, including for mental health issues and if deemed necessary, a referral to an appropriate sex offender treatment program.

4. You are not to assault, molest, interfere, stalk, contact or have anything to do with the victim in this matter.

5. You must obey all reasonable directions of any treating health professional.

6. You are to visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a mental health treatment plan.

7. You must visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a referral for psychometric testing to assess any cognitive impairment or autism spectrum disorder.

6. I make an order pursuant to section 3C(1) of the Child Protection (Offender's Registration) Act 2000 that the young person is not to be treated as a registrable person for the purposes of the Act.

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Decision last updated: 08 April 2024