Regina v RP

[2018] NSWDC 125

District Court

New South Wales

Medium Neutral Citation:	Regina v RP [2018] NSWDC 125
Hearing dates:	20 April 2018
Date of orders:	18 May 2018
Decision date:	18 May 2018
Jurisdiction:	Criminal
Before:	His Honour Judge G Lerve
Decision:	See [82]-[88]
Catchwords:	Sentence – offending when offender a juvenile but sentenced as an adult - onerous bail conditions – pre-sentence custody – intellectual functioning issues with offender
Legislation Cited:	Children (Criminal Proceedings) Act, 1987 Crimes Act, 1900 Crimes (Sentencing Procedure) Act,1999
Cases Cited:	RP v The Queen [2016] HCA 53 R v AA [2017] NSWCCA 84 R v Anderson [2012] NSWCCA 175 Brown v R [2014] NSWCCA 215 Bugmy v The Queen [2013] HCA 37 Butters v R [2010] NSWCCA 1 TC v R [2016] NSWCCA 3 R v Donald [2013] NSWCCA 238 Hili & Jones v The Queen [2010] HCA 45 Hampton v R [2014] NSWCCA 131. Hamilton v R [2016] NSWCCA 59 Kelly –v- R [2018] NSWCCA 44 Kennedy v R [2010] NSWCCA 260 Little v R [2018] NSWCCA 63 Locke v R (2010) 207 A Crim R 34 R v Niass unrep. NSWCACA 16 Nov 1988 Refaieh v R [2018] NSWCCA 72 BP v R [2010] NSWCCA 159. SHR v R [2014] NSWCCA 94 R v Simpson (2001) 53 NSWLR 704 Sullivan & Skillan v R [2008] NSWCCA 296 KT v R [2008] NSWCCA 51 Thammavongsa v R (2015) 251 A Crim R 342 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions RP
Representation:	Counsel: Mr P Kerr for the Director of Public Prosecutions Mr T Warr for the Offender   Solicitors: Ms N Wojcik for the Director Mr D Barron for the Offender
File Number(s):	2012/330538, 2014/99541
Publication restriction:	Non publication of the name of the offender or the complainants or anything that may tend to identify them.

Judgment

1. The offender is the same person as the RP to which the decision of the High Court of Australia RP v The Queen [2016] HCA 53 relates.

2. On 9 May 2017 the offender pleaded guilty to three counts on an indictment, namely:

1. That (he) between 28 February 2007 and 18 September 2007, in Junee in the State of New South Wales, did have sexual intercourse with JF without his consent, knowing he was not consenting, when JF was under the age of 16 years, namely 15 years, contrary to s 61J(1) of the Crimes Act, 1900 and further

2. That (he) on or about 19 November 2007, at Junee in the State of New South Wales, did assault JF and at the time of that assault committed an act of indecency on JF, he then being under the age of 16 years, namely 15 years, contrary to s 61M(1) of the Crimes Act, and further

3. That (he) on or about 22 October 2012, at North Wagga Wagga in the State of New South Wales, did attempt to have sexual intercourse with TDP, a child then between the ages of 10 years and 16 years, namely 14 years, contrary to s 66D of the Crimes Act.

3. One of the many issues that is to be considered in this matter is the value to be given to the utilitarian value of the pleas of guilty. The pleas were entered at the time the trial was listed to commence. Both parties submitted that the offender should be allowed 10% discount for the utilitarian value of the pleas of guilty in respect of counts 1 and 2. However, the plea of guilty in respect of count 3 was entered as a result of negotiations that occurred at the time. Mr Warr, counsel for the offender, submits the offender should be allowed 15% for the utilitarian value of the plea whereas the Crown Prosecutor submitted that the offender should be allowed only 10%. The Crown argued that the benefit the offender gained was the lesser charge as a result of the negotiations. Implicit in that submission seemed to be a suggestion that to allow more than 10% would involve some type of double counting. It is always open to an accused to open negotiations and offer to plead guilty to a charge or charges other than what is on the proposed indictment – see Sullivan & Skillan v R [2008] NSWCCA 296. The fact remains however that May 2017 was the first opportunity the offender had to plead to the third count. I allow 12.5% for the utilitarian value of the plea for the plea of guilty to count 3.

4. The maximum penalty for count 1 is 20 years imprisonment and at the relevant time the maximum penalty for count 2 was seven years imprisonment. The maximum penalty for the offence in count 3 is 10 years imprisonment. There is a standard non-parole period specified in respect of counts 1 and 2 but in this matter the standard non-parole period does not apply as the offender was under the age of 18 years at the time of the offending – see s 54D(3) of the Crimes (Sentencing Procedure) Act, 1999. The offender was in fact 14, which is another of the complicating issues in this matter. There is no standard non-parole period applicable to count 3 as it is a charge involving an attempt.

Facts

5. The facts are before the Court by way of agreed facts which were marked exhibit A on sentence at the time that the pleas of guilty were entered. The victim in counts 1 and 2 is JF, who is the offender’s half-brother and is 15 months older than the offender. At the time the offence to which count 1 relates was committed the offender was 14 and the victim 15 years of age. Both the offender and victim were staying at their grandfather’s home in Junee spending time with offender’s father and the victim’s stepfather. The victim and offender sought and obtained permission to sleep in the rumpus room rather than the bedroom they had been sharing with a younger brother. Separate beds were made for the offender and the victim.

6. At some point in time after all in the home had retired to bed the offender got into the victim’s bed. The victim told the offender to get out of the bed. The offender attempted to cuddle the victim and the victim pushed him away. The offender put his hand inside the victim’s boxer shorts and fondled his penis. The offender then rolled the victim on to his stomach.

7. The offender then inserted his penis into the victim’s anus. The victim struggled against the offender’s body weight. The victim could feel the offender thrusting and felt pain. The offender stopped and returned to his own bed. The facts recite that the victim was not consenting and the offender knew that the victim was not consenting.

8. The victim got up and went to the toilet where he remained for some time. He then returned to the bedroom where his brother was rather than return to the rumpus room where the offender was.

9. I now go to count 2. As at 19 November 2007 the offender was 14 and the victim 15. The victim was at the home of his step-grandfather at Junee celebrating his birthday. The victim’s father and step grandfather were at the relevant times members of the NSW Rural Fire Service. Just before the presentation of the birthday cake the offender’s father and step father were called to a fire. Shortly after this the victim went to his bedroom and the offender went into that room shortly after that.

10. The offender approached the victim and began kissing him on his neck and lips. The victim told the offender to “stop”. The offender then hugged the victim from behind using his arms. The victim attempted to pull his arms away. The offender pushed up against the victim and said repeatedly, “How much I would love to have sex with you right now”. The victim and offender were clothed throughout this incident. The victim did not tell anyone of what had occurred.

11. I now go to count 3, in which the victim is TD-P, the offender’s half-brother who was born on 14 December 1997. As at the date of the offence in count 3 the victim was 14 years of age and the offender 19 years of age. The victim was in Year 9 at the “Bidgee School” in Wagga Wagga in 2012. After school, the victim regularly took the bus home to his father’s home.

12. On the afternoon of 22 October 2012 after arriving home from school he sat next to the offender and watched a fishing show on television. At about 5.30pm the offender asked the victim if he wanted to go fishing and the victim agreed. The victim went downstairs and obtained some fishing gear and then walked with the offender to the lagoon situated directly opposite the “Island View” take away shop at 30 Hampden Avenue, North Wagga Wagga. The lagoon is obscured from view by a levy bank and trees.

13. The victim and offender went about fishing. After about five minutes the victim went to a tree to urinate. The victim was wearing track pants. The offender followed, pulled down the victim’s pants and underpants, unzipped his own pants and took out his flaccid penis. In an attempt to penetrate the victim the offender pressed his flaccid penis against the victim’s buttocks and anus. The victim said, “stop” but the offender continued this behaviour for a short period of time.

14. The offender stopped, zipped up his pants, returned to the fishing spot and collected the fishing gear. The victim followed and collected his fishing gear. They both walked home, arriving at about 6pm.

15. The victim described the offender’s penis as “soft”, the offender’s behaviour as “weird” but did not cause him any pain.

Assessment

16. Mr Warr submitted that count 1 was slightly below mid-range. The Crown submitted that count 1 was “just” below mid-range. The intercourse was penile/anal and the offending was essentially opportunistic in nature. The offender must have been aware of the resistance offered by the victim. The matter is slightly below mid-range.

17. Count 2 is well below mid-range, involving as it did kissing on the neck and lips. Both were clothed. However, the offender indicated a desire to have sex with the victim. The matter is well below mid-range, but is not at the bottom of the range.

18. Count 3 involves an attempt at penile/anal intercourse, which because of the offender’s penis being flaccid was really never going to succeed. However, the offender pulled down the victim’s pants and underpants and clearly attempted to penetrate him. The matter is slightly below mid-range.

19. Counts 1 and 2 are aggravated by the fact that the offending occurred in the victim’s home – see s 21A(2) of the Crimes (Sentencing Procedure) Act. However, in practical terms the impact of this is minimal as it was also the residence in which the offender was entitled to reside.

Method of approach to counts 1 and 2

20. Counts 1 and 2 were committed when the offender was 14 years of age and, accordingly, a juvenile. Had the offences been reported at the time of commission or close to the time of commission the offender would have been entitled to be dealt with pursuant to the provisions of the Children (Criminal Proceedings) Act, 1987. For example, s 14(1)(a) of that Act provides in essence that a child under 16 cannot be convicted by the Children’s Court.

21. The issue of the age of the offender at the time of the offending in counts 1 and 2 is an issue I raised with both counsel after the morning adjournment on the day of the sentence hearing. The Crown then after the luncheon adjournment provided valuable assistance with reference to the decision in R v AA [2017] NSWCCA 84. Beech-Jones J (Leeming JA, Hulme J agreeing said at [64]-[67]:

“[64]   I do not accept that the sentencing judge merely referred to the provisions of the Children (Criminal Proceedings) Act as part of a recitation of the submissions made during the sentencing hearing. Instead, his Honour had regard to that legislation as a matter in mitigation of sentence. His Honour stated he would consider the regime for sentencing children “in the same way as I would take into account a different sentencing regime in other cases of, for instance, historical sexual abuse”. This is clearly a reference to the arguably analogous proposition that in sentencing for offences involving historical sexual abuse it is proper for a sentencing court to take into account the sentencing practice prevailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time (R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J).

[65] Neither of the parties referred to any previous decisions of this Court that have addressed whether a sentencing court, in dealing with an adult offender for an offence committed while they were a juvenile, can have regard to the sentencing regime available for juveniles had they been prosecuted earlier. However, this issue has been addressed by this Court. In TC v R [2016] NSWCCA 3, this Court found error in circumstances where a fifty-five-year-old offender was sentenced for an offence he committed when he was seventeen years old. The judge at first instance was found to have erred in failing to specifically address the statutory regime for the sentencing of children prevailing at the time the offence was committed (at [42] to [48] per Gleeson JA with whom Rothman and Bellew JJ agreed, at [88] to [89]). Similarly, in SHR v R [2014] NSWCCA 94, Fullerton J accepted that an offender who was thirty nine years old but had committed serious sexual assaults when he was 16 years of age had the capacity to “ask what might have happened had he been arrested and dealt with expeditiously after the offending” (at [50]; Basten JA and Davies J agreeing). However, it was of no assistance to the offender in that case as his offences were “serious children’s indictable offences” that had to be dealt with according to law and not in accordance with the Children (Criminal Proceedings) Act (at [50] per Fullerton J).

[66] It follows that so much of Ground 4 as makes complaint in relation to the sentencing judge’s approach to the relevance of the Children (Criminal Proceedings) Act to the sentencing of AA for the first two offences, must be rejected. His Honour was entitled to adopt the approach that he did in relation to those two offences.

[67] However, his Honour erred in his approach to the third offence in this respect. Given that it was, and is, a “serious children’s indictable offence” it had to be dealt with according to law and that could not have included the imposition of a control order.”

22. Section 3 of the Children (Criminal Proceedings) Act, 1987 defines as a serious children’s indictable offence as:

(a) homicide,

(b) an offence punishable by imprisonment for life or for 25 years,

(c) an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989),

(c1)  an offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years,

(d) the offence of attempting to commit an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989), or

(e)  an indictable offence prescribed by the regulations as a serious children’s indictable offence for the purposes of this Act.

23. Section 61J(2)(d) of the Crimes Act provides that it is a circumstance of aggravation if the alleged victim is under the age of 16 years. That is precisely the circumstance of aggravation pleaded in count 1. Accordingly, neither count 1 nor count 2 are “serious children’s indictable offences”. It follows that both were amenable to be dealt with to finality by the Children’s Court had they been reported and had the offender been charged before he turned 21. Consistent with the decision in R v AA, I will consider this is a matter in mitigation in respect of counts 1 and 2, but it cannot be a matter in mitigation in respect of count 3. In respect of counts 1 and 2 it is my opinion that the offender is entitled to substantial mitigation because of this issue. However as the offender was 19 at the time of the commission of the offence to which count 3 relates, youth is a relevant factor to be considered in the instinctive synthesis approach to sentencing in respect of count 3.

24. If the offending had been reported earlier and had the offender been dealt with pursuant to Division 4 Part 3 of the Children (Criminal Proceedings) Act it would not have been inevitable that a sentence of full time custody, meaning a full-time Control Order pursuant to s 33(1)(g), would not necessarily have been imposed. I am very much aware of the limitations on statistics, particularly where the sample is small (see for e.g. Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J), but I note from the JIRS statistics that out of a sample of 29 only 31% or 9 cases received a full time (as opposed to suspended) Control Order. Of those 9 cases the total sentences (i.e. period of Control Order) varied from 12 months to 2 years and the non-parole periods varied from 2 months to 15 months.

25. On this same issue, if s 18(1A) of the Children (Criminal Proceedings) Act became a relevant consideration, given the nature of the offending, the age of the offender at the time, i.e. 14 and therefore only just at an age where doli incapax has no application, and the issues (including immaturity) referred to in the psychologists reports to which I will refer later in these remarks, it is my opinion that it would have been appropriate to deal with the offender pursuant to Division 4 Part 3 of the Act rather than according to law in respect of counts 1 and 2.

26. In regard to the general principles in sentencing juvenile offenders I note and have regard to s 6 of the Children (Criminal Proceedings) Act, and further the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] inclusive and BP v R [2010] NSWCCA 159. On the issue of youth I note and have regard to the decision of Locke v R (2010) 207 A Crim R 34 especially at [41]-[49] per Hulme J and the authorities referred to by his Honour. Further, 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).

Criminal History

27. On 27 November 2012 the offender was sentenced at the Parramatta Children’s Court to Control Orders for two counts of Have Sexual Intercourse With a Person between 14 and 16 years. The sentence was varied on appeal to the District Court by slight reduction of the head sentence in respect of one count and the non-parole periods in respect of both.

28. The offender’s date of birth is 28 February 1993 and accordingly he was 19 at the time he was dealt with by the Parramatta Children’s Court. The Children’s Court has a discretion to refuse to proceed to record a conviction where a young offender is over 16 years of age – see s 14 (1)(b) of the Children (Criminal Proceedings) Act. The Criminal History is silent as to whether or not convictions were recorded. However a check conducted by my Associate at my request with the electronic records in JusticelLink indicates that convictions were not recorded. The parties were advised of this shortly after this information came to light and were given the opportunity to make any further submissions if they wished to do so.

29. On 5 December 2014 the offender was sentenced in the District Court in respect of two counts of Sexual Intercourse with a Child Under 10. The complainant in that matter was the same as in count 3 in the matter presently before the Court. The Court of Criminal Appeal on 26 August 2015 dismissed an appeal. However, on 21 December 2016 the High Court of Australia ([2016] HCA 53) upheld an appeal and entered verdicts of acquittal. As I understand the judgment it was on the basis that the Crown at trial had not displaced the presumption of doli incapax.

30. Section 15 of the Children (Criminal Proceedings) Act provides:

(1)    The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if:

(a)  a conviction was not recorded against the person in respect of the first mentioned offence, and

(b)  the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.

(2)    Subsection (1) or (3) does not apply to any criminal proceedings before the Children’s Court.

(3)    The fact that a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 (being in respect of an alleged offence committed when the person was a child) is not to be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence.

31. Essentially, the court must proceed on the basis that the information on the Criminal History is inadmissible. I therefore ignore that information within the Criminal History and proceed on the basis that there is no history.

Pre-Sentence Custody

32. The issue of pre-sentence custody took a considerable part of the sentence hearing. There is no pre-sentence custody in respect of counts 1 and 2 however it is a very live issue in respect of count 3. The parties appear to agree that there is at least 9 months and 27 days (10 months in round figures) of pre-sentence custody in respect of count 3. However, counsel for the offender maintains that the Court should take into account a further period of 10 months and 24 days (11 months in round figures) in respect of time spent in custody in respect of the matters that went to be considered by the High Court and in respect of which the offender was ultimately acquitted. The Crown maintains that this is unrelated to the matter before the Court and none of the period of 10 months and 24 days should be taken into account. The Crown relied on the authorities of R v Niass unrep. NSWCACA 16 Nov 1988 and Hampton v R [2014] NSWCCA 131. I raised with the parties the decisions of Hamilton v R [2016] NSWCCA 59 and Little v R [2018] NSWCCA 63. The Crown maintained in submissions that these last two authorities can be distinguished.

33. Mr Warr of counsel maintains that the matters in respect of which the offender spent 10 months and 24 days in custody is related to count 3 for which the offender appears for sentence. At p 2 - 3 of his written submissions, MFI 3 on sentence, counsel for the offender sets the background. What is now count 3 on the present indictment had previously been on the indictment which also contained the counts that ultimately were considered by the High Court. What is now count 3 was severed. Counsel’s argument is essentially, at least as I understand the argument, that the matters are related as they all relate to an alleged course of conduct by this offender against the same victim. The principle issue that fell for consideration in the matters that were defended was doli incapax.

34. The Crown argued that the matters are “entirely unrelated”. The arguments advanced by the Crown included that the only matters in common were the fact that it was the offender who was the alleged perpetrator and the victim was the same in all matters. The Crown argued that there must be a connection beyond the same victim for the offending to be related. Further, the Crown consented to the severing of the indictments. Given that doli incapax was an issue in respect of some of the counts and not others one can readily understand why the counts were severed. The Crown argued that Hamilton can be distinguished because the back-dating related to an error made by the representatives of the parties at the sentence hearing. Likewise, the Crown argues that Little can be distinguished on the facts because of the change in circumstances.

35. Johnson & Bellew J (Gleeson JA, Price & Garling JJ agreeing) in Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 said at [27]:

“The decision of this Court in R v Niass appears to stand in the way of that submission. That decision makes it clear that where what is sought to be done is to invite a sentencing court to take into account, as a relevant matter, a period in custody for an unrelated matter leading to acquittal or discharge, that factor is not, in and of itself, relevant to the sentencing exercise.”

36. At [30] their Honours went on to say:

“These decisions confirm an approach that bare reliance on a period in custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters. This is particularly so where there is a broken period of custody, as exists in this case.”

37. Hoeben CJ at CL (Johnson J agreeing with additional comments, Price J agreeing) in Little said at [45]:

“With those principles and examples in mind, it seems to me that the closest analogy to the circumstances of this case is that line of authority where a matter has been raised in sentence proceedings but the full facts were not known or understood at the time of the sentence proceedings but have subsequently become known. In accordance with that line of authority, I am of the opinion that it is open to this Court to have regard to the change in circumstances, i.e. the quashing of the conviction for the driving offences, and to intervene in the proceedings. That does not necessarily mean that the applicant should automatically have the commencement date of his sentence backdated by 4 months to 13 July 2015 when bail in this matter was first refused.”

38. I also note and have regard to the decision of Refaieh v R [2018] NSWCCA 72 at [41]ff per N Adams J.

39. It is my opinion that the connection between the pre-sentence custody that was taken into account by the Court of Criminal Appeal in the decisions of Hamilton and Little is far more tenuous than what is the case in the matter presently under consideration. In my opinion there is considerable force in the submission by counsel for the offender that the matter to which count 3 relates is part of a related course of conduct involving the same victim and the same offender even though there are years between the offending the subject of the matters decided by the High Court and the offending to which count 3 relates. I am fortified in this conclusion by the fact that the Crown at least at some initial stage had all matters on the one indictment even if the Crown did consent to the severing of the counts. The offending cannot be said to be entirely unrelated or entirely unconnected.

40. However, even if I am incorrect in this conclusion, given the effect of the decisions in Hamilton and Little it seems to me that the offender would get considerable support from those decisions for at least a considerable portion of the pre-sentence custody taken into account. By way of analogy, and hypothetically, if the offender were sentenced in respect of the offending presently under consideration before the verdicts of acquittal were entered in the High Court in respect of the other matters the offender would be able to mount an argument on an appeal and on those authorities enjoy some success to have at least a considerable portion of that pre-sentence custody taken into account.

41. For these reasons I propose to allow the 10 months and 24 days into account when fixing the commencement date of the sentence in respect of count 3.

Onerous bail conditions and backdating of any sentence

42. One of the many issues that were contested at the sentence hearing was the extent to which any sentence should be back dated because of what are submitted are onerous bail conditions. A summary of the bail conditions are included in counsel’s written submissions, MFI 3, but neither party sought to actually hand up or tender a copy of the bail undertaking or a copy of the Orders of the Supreme Court in granting bail. Again as with the issue of whether convictions were recorded in the Children’s Court in 2012 it has been left to the court to research. The effect of the bail conditions is set out in counsel’s submissions. However, if the bail conditions were to be relied upon as they were in this case then a copy of the bail undertaking or a copy of the Orders of the Supreme Court should have been made available to this court. The bail conditions imposed by Hidden J on 19 November 2013 were, according to JusticeLink:

(1) Report daily to Junee Police Station between 8am and 8pm;

(2) To reside at 22 Regent Street, Junee;

(3) Not to leave that residence at all except in the company of his grandfather or father;

(4) To appear at Wagga Wagga District Court on 07 April 2014 and at such other time and place as may be directed;

(5) Not to approach, contact or attempt to contact, directly or indirectly the complainant, except through his legal representatives for the purpose of preparing his case;

(6) Should the applicant be in breach of any of the conditions which have been imposed, his bail will be automatically revoked and he may be arrested by any police officer;

(7) Bail may be entered before any person authorised under the Bail Act.

43. At p 3 of MFI 3 Mr Warr, counsel for the offender, sets out that the Supreme Court granted bail on 19 November 2013 and the conditions of bail included to report to police each day and not leave his residence except in the company of his father or grandfather. Counsel describes this as “house arrest”, a description to which the Crown took particular and strident opposition. The submissions for the offender continue to the effect that the strict bail conditions have meant that the offender has been impeded in his ability to gain employment or any type of training. The Crown submitted that there was no evidence of any particular course of training in which the offender sought to be enrolled or any type of employment opportunity that was denied. The Crown also submitted that there had never been any application to vary bail.

44. Mr Barron, solicitor for the offender, then gave evidence and was cross-examined. The evidence was to the effect that at one point in time consideration had been given to bring an application to vary bail in order that the offender might attend a TAFE course. However, there was also a suggestion that the Crown might also bring an application to have bail revoked. It was decided that the application to vary the bail would not proceed.

45. Davies J (Allsop P agreeing with additional comments, Campbell J agreeing and agreeing with the additional comments) in R v Anderson [2012] NSWCCA 175 said at [42]-[45]:

[42] “In Hughes Grove J (with whom McClellan CJ at CL and Simpson J agreed) said:

[38] It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.

[43] Once it is accepted that it may be appropriate in some circumstances to give a discount of 50% in respect of bail conditions the determination of what an appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown.

[44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were onerous. She was required to reside in a small town, was unable to leave it (except to attend court or legal conferences) and was subject to a curfew. Those conditions meant that she was unable to find employment (because of the limited job opportunities in such a small town) and was unable to further her rehabilitation because no facilities were available.

[45] Her Honour's approach to the Respondent's bail conditions was a lenient one. She did not, however, make any error of fact or law, she did not take account of irrelevant matters and she considered relevant matters. The result, whilst generous, was not plainly unjust nor unreasonable in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325at [21].”

46. I did not understand the Crown to submit orally at the sentence hearing that the Court would not give any consideration because of the bail conditions but rather the submission was “not the 50% argued for by Mr Warr”. This is despite the additional written submissions, MFI 5 on sentence, in which the Crown submits that Anderson has no application in the present matter and that the bail conditions attached to the Children’s Court matters were not onerous.

47. I also note and have regard to the decision of the Court of Criminal Appeal in Kelly v R [2018] NSWCCA 44 at [43]-[[54]. In the matter presently under consideration while there are submissions as to the negative impact or effect of the bail conditions on the offender there is little in the way of evidence.

48. The bail conditions are onerous and the offender has been subject to them for a very considerable period of time without apparent breach. However there is scant evidence (meaning virtually none and as opposed to the submissions) as to the negative effect or impact those bail conditions have had. Given the nature of the conditions I accept that there would have been some negative impact. In any event the offences in respect of which the offender was on bail were serious and the community would have expected some restrictive bail conditions. I take the view that to allow 50% as submitted by counsel would be overly generous given the lack of evidence of the effect of those conditions. I would allow by way of backdating of up to 8 months, which is approximately 20% of the period of time the offender which the offender has been subject to the bail conditions.

Victim impact statement

49. At tab 5 of Exhibit A on sentence is a victim impact statement by JF, the victim in counts 1 and 2. That victim impact statement speaks eloquently of the short and long term effects of the offending in which the offender engaged. The effect on the victim is precisely as one would expect it to be. Clearly enough, the offending still has an effect on the victim.

50. However, without deprecating the undoubted effect on the victim, given the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, in the absence of other material, for example from treating health professionals, the court cannot be satisfied beyond reasonable doubt that the victim has sustained substantial emotional harm.

51. Be that as it may, the effect on the victim is a relevant consideration so far as s 3A(g) of the Crimes (Sentencing Procedure) Act is concerned.

Subjective material

52. No oral evidence was called from or on behalf of the offender other than short evidence from Mr Barron on the issue of the proposed application to vary bail. However a number of relatively old psychologist’s reports were tendered. That material is as follows:

Exhibit 4 – Report by Mr Peter Champion of 1 December 2012;

Exhibit 5 – Report by Dr Peter Ashkar of 26 November 2012;

Exhibit 6 – Report of Dr Susan Pulman of 21 November 2014; and

Exhbit 7 – Juvenile Justice Psychological and Specialist Services Report (Sex Offending Programme) dated 13 November 2012.

53. A number of these reports are referred to in the judgment of the High Court – RP v The Queen [2016] HCA 53 - see for example [16]-[19] of the joint judgment of Kiefel J (as her Honour then was), Bell Keane & Gordon JJ. As I understood the submissions for the Crown in the sentence hearing before me, noting that I do not have a transcript of the proceedings, the Crown submitted I would give little weight to the reports as they were prepared several years ago. For that same reason the Crown submitted that I would not give weight to the comments of the High Court on those reports. When I suggested to the Crown that issues of intellectual functioning generally do not change over time the submission in reply was that there was no evidence of that. Mr Warr submitted that the reports are still useful subjective material as they were prepared at a time that was close to the offending for which the offender now appears for sentence. In my view there is some force in that submission.

54. At [16] of the joint judgment of the High Court reference is made to a report that the offender obtained a(n) IQ score of “70-79, placing him in the ‘borderline range of intellectual functioning’”.

55. Exhibit 4 on sentence, i.e. the report of Mr Champion, was directed specifically to the issue of fitness to be tried. Mr Champion concluded at paragraph 32 that, “Formal testing placed his overall ability at the top of the borderline disabled range, though some of his skills are better than this, and he has basic arithmetic and literacy skills. His most significant deficits are in the areas of vocabulary development, verbal reasoning and general knowledge.”

56. Dr Ashkar reports at paragraph 3 of exhibit 5 that,

“R…’s intellectual abilities varied from borderline impaired to average…His verbal intellectual ability…is ‘borderline impaired’…and his nonverbal or visual intellectual ability…is ‘low average…his verbal intellectual ability is significantly weaker than his nonverbal/visual intellectual ability and his attention and concentration skills and also a personal weakness. These weaknesses in his intellectual abilities are unusual and clinically significant and likely reflect his educational experiences and current mental state of heightened anxiety and depression.”

57. At paragraph 5 of that same report Dr Ashkar concludes,

“Whereas [R] could be considered to have an intellectual disability on the basis of his impaired verbal intellectual functioning, it is unlikely that his adaptive behaviour functioning is sufficiently impaired to warrant a formal diagnosis of intellectual disability given his (albeit limited) employment history and account of his adaptive behaviour functioning…[R] nonetheless has poor emotional regulation and behaviour inhibition skills and I suspect these underlie his behavioural difficulties and sexual offending behaviour…”

58. Dr Ashkar recommended a structured sexual offending programme for the offender.

59. Dr Pulman in exhibit 6 at p 10 concluded that the offender’s “overall level of intellectual functioning fell at the lower limit of the low average range and at the 9th percentile. This means that in terms of his full scale IQ, Mr Porter is functioning at a level equal to or better than nine percent of the normal population on this test”. Dr Pulman concluded (see p 8) that based on the results of the assessment she conducted the offender is functioning at the lower end of the low average range of intellectual ability and therefore does not meet the criteria for an intellectual disability.

60. Under the heading of “Educational History” the author of exhibit 7 (the Juvenile Justice Report) sets out that a former school principal recalled the offender as a “challenging young man who had very poor boundaries with others as evidenced by saying inappropriate things to female students. Further, she described him as a young man who struggled socially and isolation would often lead to verbal aggression and physical violence. He was referred to the “Bidgee School”, which is a Department of Education run school for students with special needs.

61. The report goes on to say that the offender’s intellectual capacity was assessed by Centrelink and as a result he was placed on the Disability Support Pension.

62. The author sets out later in the report:

“Utilising the dynamic scales of JSOAP-II [R] was rated as showing the presence of risk factors concerned with understanding of his own risk factors and the management of his sexual urges and desires. Those factors rated as low levels of risk were his apparent high levels of empathy and remorse, his internal motivation to change, management of his anger and stability of his current living situation. This suggests that [R] would be likely to engage in a sex offender program and that he has a number of positive support systems which would help to manage his risk of recidivism”.

63. Mr Warr at p 9 of MFI 3 submits that the offender’s moral culpability is reduced by his intellectual functioning. As I understood the oral submissions made by the Crown Prosecutor, it was put on behalf of the Crown that given the age of the reports little weight attaches to them. At paragraph 27 of MFI 1 the Crown submits that “the prosecution accepts that the offender has learning and cognitive difficulties, however, there is no evidence currently known to the prosecution that the offender suffers from any mental illness that would mitigate his offending”. I did not understand it to be suggested that there was any issue of mental illness.

64. The offender’s level of intellectual functioning does reduce to a limited extent his moral culpability. However, the impact on the sentence of the issue of intellectual functioning cannot be the same as if there was a diagnosis of intellectual impairment.

65. As I read the Juvenile Justice Report, the author seems to assess the offender as being at a low risk of re-offending but recommends that he engages in a sex offender programme in order to minimise or reduce any risk of re-offending.

66. The offender has complied with strict bail conditions for a number of years without apparent breach. He has not re-offended since the offence to which count 3 on the indictment relates, which is 2012 - now almost 6 years ago. Given the calculations set out by the plurality at [2] of the judgment of the High Court in RP v The Queen the alleged offences in that matter occurred in or about 2004 or 2005. The offender is now 25 years of age. With some little hesitation I am prepared to find on balance that he is unlikely to re-offend. For these same reasons I am also prepared to find that the prospects of rehabilitation must at least be reasonable. However, it is preferable in my view to have the offender complete a sex offender’s programme.

67. There is nothing in the evidence that would entitle me to find on balance that the offender is remorseful – see for example Butters v R [2010] NSWCCA 1 at [17] per Fullerton J. The hearsay statements relating to offending in the psychologists reports do not relate to the offending for which the offender appears for sentence.

68. The Juvenile Justice Report sets out a number of issues faced by the offender in his formative years. The report sets out that he was the victim of both domestic violence and overly harsh discipline. Dr Pulman at p 3 of her report also sets out domestic violence to which the offender was subjected as a child. That material is supported to an extent by a letter from the offender’s grandfather, which is exhibit 1 on sentence. The material from Dr Pulman, the Department of Juvenile Justice and the offender’s grandfather also indicates that the offender had an inappropriate amount of responsibility in raising his siblings. In all of the circumstances I am satisfied that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 and authorities such as Kennedy v R [2010] NSWCCA 260 are enlivened, at least to some extent reducing the offender’s moral culpability.

69. During the sentence hearing the Crown Prosecutor sought to contrast the material tendered on behalf of the offender with the contents of the victim impact statement, which spoke of a loving home environment. The subjective material was received without objection. The Crown apparently had the material in advance and was at least aware of the psychologist’s reports. The victim impact statement is precisely that.

70. Mr Warr at p 9 of MFI 3 on sentence argues that the offender should be given some benefit for delay. The submissions include that the offender is now 25 and that counts 1 and 2 occurred when he was 14. This is already to be taken into account as mitigation, given what I have already said about the method of approach to counts 1 and 2. Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. Her Honour at [49] said:

“…I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been ‘dilatory or neglectful’. Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it.’”

71. There is really no evidence about the impact of delay on the offender. In any event, the issues raised by counsel will be taken into account in other ways as already set out within these remarks. To allow some further consideration for delay as such would in my opinion to be falling into the error of double-counting.

General Remarks

72. So far as the outcome of these proceedings is concerned, the primary submission of counsel for the offender (see p 10 MFI 3) is that the Court would not impose a sentence of custody in respect of any of the counts, but as a secondary submission puts that if custody were the sentence to be imposed there should be a finding of special circumstances. The Crown in MFI 1 at paragraphs 34 to 39 submits that given the decision in R v Simpson (2001) 53 NSWLR 704 and the lack of evidence there is no proper grounds for a finding of special circumstances.

73. The Crown’s submission must in my view be rejected. In respect of count 1 there is the issue of the method of approach already discussed. In respect of count 3 there is the fact that the offender was 19 at the time, is now 25 and the issues of intellectual functioning. However, the issue of intellectual functioning has already been factored into the instinctive synthesis process of determining the sentence and to allow special circumstances because of the intellectual functioning issue per se would be to double count. The issue of intellectual functioning is one of the matters that assists in informing the need for an extended period of supervision, for which it seems to me there is an obvious need in this matter. There must, in my opinion, be a finding of special circumstances.

74. Counsel for the offender at p 11 of MFI 3 submits that the emphasis of the sentence should be on rehabilitation as opposed to protection of the community and deterrence for offences committed as a juvenile. That submission has some force but only for counts 1 and 2. There is a very real issue of general deterrence in respect of count 3 – see for example R v Van Ryn [2016] NSWCCA 1 at [179]. Even in respect of counts 1 and 2 the issues of general deterrence and retribution cannot be completely ignored when sentencing young offenders – see KT v R [2008] NSWCCA 51 at [24] per McClellan CJ at CL.

75. MFI 2 on sentence is the Crown’s written submissions on s 3A of the Crimes (Sentencing Procedure) Act. On the issue of general deterrence, at paras 10 and 11 the author of those submissions makes general submissions on the aspect of specific and general deterrence without reference to any particular authority relating to the type of offending involved in this matter. I otherwise note and have regard to those submissions.

76. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender, and

(g) to recognise the harm done to the victim of the crime and the community.

77. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate.

78. I spent considerable time earlier in these remarks in dealing with the method of approach to counts 1 and 2. Once recognised that the principles to which I have referred must be applied, noting that the offender was 14 at the time, the fact that counts 1 and 2 were amenable to be dealt with in the Children’s Court had they been reported earlier and the various subjective matters it is not inevitable that a sentence of custody be imposed in respect of counts 1 and 2. I propose to deal with those counts by way of section 9 bonds. The bond in respect of count t1 will be as long as permitted by s 9 of the Crimes (Sentencing Procedure) Act, i.e. 5 years.

79. I am of the opinion that the offending in count 2 does not cross the threshold within s 5 of the Crimes (Sentencing Procedure) Act in any event.

80. For the sake of completeness however, had a custodial sentence been imposed in respect of count 1 there would have been required some partial accumulation between the sentences imposed in respect of count 1 and count 3.

81. In respect of count 3, noting the age of the offender at the time of the offending, the nature of the offending and the need for general deterrence, I am firmly of the opinion that the only appropriate sentence is one of full time custody. I am of the opinion that the appropriate starting point is in the vicinity of 3.5 years from which is deducted 12.5% for the plea of guilty which results with some minor mathematical rounding down to a total sentence of 3 years. Given the pre-sentence custody and the other allowances made for reasons given within these remarks the offender has in practical terms served the non-parole period and unless he breaches parole will spend no further time in custody.

Formal Orders

82. In respect of each of the matters to which the offender has pleaded guilty he is convicted.

83. In respect of count 1 the offender is released on a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act, 1999 for a period of 5 years.

84. In respect of count 2 the offender is released on a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act, 1999 for a period of 2 years.

85. Each of bonds in respect of counts 1 and 2 are conditioned that the offender:

(1) Be of good behaviour;

(2) Appear for sentence in respect of any breach committed within the said period;

(3) Notify the Registrar of this court of any change of address; and

(4) For the period of the bond or such shorter period as may be deemed appropriate accept the supervision and guidance of the Department of Community Corrections and obey all reasonable directions of that Department including but not limited to the participation in a sex offender’s programme.

86. In respect of count 3 the offender is sentenced to a non-parole period of 1 year and 9 months to commence on 18 August 2016 and expire on 17 May 2018. Thereafter there is a balance of term on parole of 15 months commencing on 18 May 2018 and expiring on 17 August 2019 during which the offender will be subject to a statutory parole order. There is a condition to that parole order that the offender obey all reasonable directions of the Department of Community Corrections relating to the participation in a sex-offender’s programme.

87. The non-parole period is approximately 58% of the total sentence, which indicates a substantial finding of special circumstances, the reasons for which have already been enunciated within these remarks on sentence.

88. The offender should report to the Wagga Wagga office of the Department of Community Corrections by 4pm Monday 21 May 2018.

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Decision last updated: 18 May 2018