TC v R

[2016] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	TC v R [2016] NSWCCA 3
Hearing dates:	2 November 2015
Date of orders:	02 February 2016
Decision date:	02 February 2016
Before:	Gleeson JA at [1]; Rothman J at [88]; Bellew J at [89]
Decision:	(1)   Grant leave to appeal.  (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeals – sentencing – historical indecent assault by young person on 9 year old boy contrary to s 81 of the Crimes Act 1900 (NSW) – further historical indecent assault on 12 year old girl contrary to s 76 of the Crimes Act on a Form 1 – sentencing judge convicted applicant and imposed 2 year good behaviour bond – whether sentencing judge failed to into account the sentencing options under the Child Welfare Act 1939 (NSW) – whether the sentencing judge failed to sentence in accordance with standards at time of the offence – whether sentence unreasonable or plainly unjust – whether the sentencing judge erred by recording conviction – whether no lesser sentence warranted in law
Legislation Cited:	Child Welfare Act 1939 (NSW) ss 4, 12, 20, 83 Children (Criminal Proceedings) Act 1987 (NSW) s 14 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10, 10A, 32, 37 Crimes Act 1900 (NSW) ss 76, 81 Criminal Appeal Act 1912 (NSW) s 6 Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW) Summary Offences Act 1988 (NSW) s 5
Cases Cited:	A v Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 151 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Chin v Ryde City Council [2004] NSWCCA 167; 133 LGERA 312 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Magnuson v R [2013] NSWCCA 50 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Morgan v R (1993) 70 A Crim R 368 Papworth v R [2011] NSWCCA 253 R v Boney (Court of Criminal Appeal (NSW), Grove J, 22 July 1991, unrep) R v DJS [2001] NSWCCA 189 R v Hutchins (1958) 75 WN (NSW) 75 R v Magrin [2004] NSWCA 354 R v Mauger [2012] NSWCCA 51 R v McLeod (Supreme Court (NSW), Maxwell J, 21 March 1983, unrep) R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v Paris [2001] NSWCCA 83 R v PL [2008] NSWDC 66 R v Price [2005] NSWCCA 285 R v Todd [1982] 2 NSWLR 517 SW v R [2013] NSWCCA 255 Walden v Hensler [1987] HCA 54; 163 CLR 561
Category:	Principal judgment
Parties:	TC (Applicant) Regina (Respondent)
Representation:	Counsel: T Gartelmann SC / E Anderson (Applicant) J Pickering SC (Respondent)   Solicitors: William O’Brien & Ross Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/199404
Publication restriction:	Yes, name of applicant.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 June 2014 Before: North DCJ File Number(s): 2013/199404

Judgment

1. GLEESON JA: The applicant, TC, seeks leave to appeal against a sentence imposed by North DCJ in the District Court on 20 June 2014 in respect of an indecent assault upon a young boy, committed almost 38 years earlier.

2. The applicant had pleaded guilty on 20 February 2014 in the Local Court to the offence of assault a male person and commit an act of indecency on him, contrary to s 81 of the Crimes Act 1900 (NSW), since repealed. The victim of this offence was a 9 year old boy. The maximum penalty for this offence at that time was penal servitude for 5 years.

3. The applicant had also asked for a further matter on a Form 1 to be taken into account by the sentencing judge pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This further offence was an indecent assault upon a female who was under the age of 16 years, contrary to s 76 of the Crimes Act, since repealed. The victim of this offence was a 12 year old girl, the sister of the young boy, the victim of the principal offence. The maximum penalty for this offence at that time was 6 years penal servitude.

4. The judge convicted the applicant and ordered him to enter into a good behaviour bond, pursuant to s 9 of the Crimes (Sentencing Procedure) Act, for a period of two years from 20 June 2014.

5. The essential objective of the present application is to have the formal conviction expunged.

Circumstances of the offences

6. The sentencing judge proceeded on the basis of a statement of agreed facts.

7. The applicant was the boyfriend of the male victim’s older sister and a guest residing in her family home. The applicant slept in an enclosed verandah where the male victim and his brother also slept. The female victim slept in an adjacent bedroom with her sister, the applicant’s girlfriend.

8. The offences occurred on a night in October or November 1976, when the applicant was approximately 17½ years of age.

9. The young boy had gone to bed. Sometime later he awoke to feel something hitting his face. The applicant was naked next to the boy’s bed. The applicant was rubbing his penis around the boy’s face and outside his mouth. The boy was shocked and scared. He pushed the applicant's penis away and the applicant moved backwards. The boy pulled the sheet and blanket over his head and turned away. About an hour later, the boy went back to sleep. This conduct constituted the principal offence.

10. On the same evening, the young girl awoke to feel someone squeezing her breasts. The applicant was naked next to her bed. The applicant smelt of alcohol and Vaseline and the girl felt something moist on her hand. The applicant held her hand and moved it up and down his penis. The girl was very scared. After about 30 seconds, she pulled her hand away and ran to her sister's bed. Her sister was not in bed. The girl told the applicant twice to “go away”. He left without responding. This conduct constituted the further offence on the Form 1.

11. The girl ran to her parents' room and told them what had happened. The victims' father went to the verandah and spoke with the applicant. The father returned to his room and said that the applicant was drunk, he could not do anything that night and he would sort it out in the morning. The following morning the victims' father told the applicant to leave.

12. In about 1995, the male victim disclosed the incident to his wife. He had not previously disclosed the incident to anyone. The following year he told another sister, who told him something similar had happened to his other sister.

13. In September 2012, both victims reported the incidents to police. In June 2013, the applicant attended a police station and participated in a notebook interview with police. The applicant admitted that he knew both victims but denied any knowledge of the offences. The applicant told police he occasionally stayed overnight at the victim’s home during his relationship with their older sister but did not reside there. The applicant was charged with the offences on 26 June 2013.

The applicant’s subjective circumstances

14. The applicant was aged 55 years at the time of sentence and in full-time employment as an investment business analyst with the Australian Capital Territory public service. He is tertiary educated. The applicant is single and has had no significant relationships.

15. The applicant gave affidavit evidence and was cross-examined at the sentencing hearing. The applicant said he had no recollection of the offences but accepted full responsibility for them, and was sorry for the harm he may have caused the victims. He said that it was a “tremendous shock” when he was informed of the offences.

16. The applicant said he was “very unstable” at the time of the offences. As a result of various family difficulties, including his mother dying of cancer when he was 15 years of age and his father remarrying, he had become homeless as he could no longer reside with his father and his new wife and family. He found it very difficult to cope with the loss of his mother and could not accept his father’s new relationship. He was drinking alcohol at this time.

17. When pressed in cross-examination, as to whether the difficulties he experienced as a teenager played some part in his offending, the applicant said that he had “no idea”. The applicant could not answer questions in cross-examination about whether he committed the offences for sexual gratification, because he could not recall them. He denied that he had a sexual attitude towards children.

18. The applicant had received treatment for a pulmonary embolism in 2013 from which he said he had not fully recovered. The applicant said that he suffered from an anxiety disorder at that time as a combination of his health condition and the criminal proceedings brought against him. No medical evidence was tendered on the applicant’s behalf. He was not receiving any psychological or psychiatric treatment at the time of the sentencing hearing.

19. Although he has no record of prior convictions, in 2001 the applicant received a good behaviour bond for a period of 12 months without conviction pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act for an offence of wilful and obscene exposure contrary to s 5 of the Summary Offences Act 1988 (NSW) (2001 offence). That conduct involved the applicant exposing himself to two 13 year old girls near a public place. The applicant was aged 41 years at that time. The maximum penalty for that offence was 10 penalty units or imprisonment for six months.

20. The applicant’s current employment position is subject to probation. He gave evidence that he was anxious to avoid a conviction in view of the likely effect on his present and future employment prospects.

The sentencing judge’s reasons

21. The sentencing judge found that the offending would have been frightening, shocking and unexpected for the 9 year old victim; nonetheless the offending was not prolonged (ROS 5). His Honour referred to the victim impact statement and found that the harm to the male victim was at the level to be expected for a brief but graphic indecent assault (ROS 5).

22. His Honour accepted that it was a very old offence (ROS 5 and 6). He noted that it occurred when the applicant was just 17 years of age, not yet an adult. He accepted that the applicant was intoxicated at the time, was obviously immature and that the offending was spontaneous and unplanned (ROS 7.5).

23. The judge assessed the objective seriousness of the principal offence as not at the very lowest end but still “well below mid range” (ROS 7).

24. With respect to the Form 1 offence against the young girl, his Honour found this to be “quite a serious example of a s 76 indecent assault, again involving skin on skin contact but without undue prolongation and without any violence or threats” (ROS 7-8).

25. His Honour referred to the applicable principles for sentencing historical child sexual assault matters, including R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31] and [57], which he accepted he was required to apply.

26. His Honour summarised the applicant’s subjective case including his age, his full-time employment and his tertiary education. He accepted that the applicant’s employment required him to have a conviction-free record and that a conviction might blight his employment prospects and make it more difficult for him to travel.

27. His Honour referred, on more than one occasion, to the applicant’s youth at the time of the offending. He accepted that the applicant was a very distressed and lonely young man at that time. He observed:

Indeed he was still a child at law and had the offence been reported at the time it occurred he would have been dealt with in the Children’s Court (ROS 11).

28. His Honour took into account the 2001 offence of wilful and obscene exposure in deciding whether the applicant was deserving of leniency in light of his youth. Reference was made to R v Hutchins (1958) 75 WN (NSW) 75 and R v Boney (Court of Criminal Appeal (NSW), Grove J, 22 July 1991, unrep).

29. His Honour accepted that the applicant was remorseful for the offences.

30. His Honour found that the applicant had not suffered the suspense and uncertainty of what might happen to him for 38 years as he did not have any real memory of the offences.

31. His Honour accepted that the plea of guilty had been entered at the first opportunity and the applicant was entitled to a 25% discount.

32. His Honour acknowledged that the sentencing exercise was a “difficult” matter. He was satisfied that a penalty other than imprisonment was appropriate given, amongst other things, the historical nature of the offending. He noted the sentencing option urged by the applicant’s legal representative was a s 10 bond without recording a conviction.

33. Nonetheless, his Honour concluded that it was inappropriate not to record a conviction given the objective seriousness of the offending, taking into account the Form 1 matter and extent of leniency to be afforded to the applicant given the 2001 offence. His Honour proceeded to impose the sentence already mentioned.

34. The applicant relies upon two proposed grounds of appeal, which are related.

Ground 1: The judge erred in failing to take into account the sentencing regime in respect of juveniles at the time of the offences.

35. In written submissions at the sentencing hearing, the applicant’s legal representative submitted (para 29) that had the applicant been sentenced in the Children’s Court contemporaneously with the offending, the focus would have been “on matter(s) of rehabilitation as opposed and balanced with specific and general deterrence”. In oral submissions before the sentencing judge, reference was made to the Children (Criminal Proceedings) Act 1987 (NSW) and the discretion of the Children’s Court under s 14 of that Act in respect of an offence, which is disposed of summarily, not to record a conviction in respect of a child who is of or above the age of 16 years. The applicant’s legal representative urged the judge to consider the option of a bond under s 10 of the Crimes (Sentencing Procedure) Act without recording a conviction.

36. The applicant’s legal representative did not specifically refer the judge to the Child Welfare Act1939 (NSW), since repealed, or the range of available sentencing options under that statutory regime. The Child Welfare Act governed proceedings in respect of juveniles at the time of the offences and until its repeal by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW), followed by the introduction of the Children (Criminal Proceedings) Act.

37. The applicant accepted in this Court that the sentencing judge correctly noted the principle in R v MJR and that the matter would have been dealt with in the Children’s Court had the offences been reported when they were committed. The applicant’s complaint is a narrow one – the sentencing judge did not take into account the statutory regime in respect of juveniles at the time of the offences, namely the Child Welfare Act.

Child Welfare Act

38. Under the Child Welfare Act an offender aged 16 years or more but less than 18 years at the time of the offence was designated a “young person”: s 4. The Child Welfare Act conferred on the Children’s Court jurisdiction to deal with offenders who were young persons at the time of the offence, but of or above the age of 18 years and less than 21 years of age when charged with the offence: s 20(2).

39. The Children’s Court was given a discretion to hear and determine proceedings in respect of indictable offences summarily other than homicide, rape or other offences punishable by death or life imprisonment: s 12(1).

40. The powers of the Children’s Court in determining indictable offences dealt with summarily, were contained in s 83(2) and (3) of the Child Welfare Act. It is appropriate to set out the terms of those subsections in full:

83.

…

(2) Where a child or young person is charged before a court with an indictable offence (other than homicide, rape or an offence punishable by death or penal servitude for life), and the charge is heard and determined in a summary manner, the court may if the child or young person admits the offence, or the court finds that the charge is proved—

(a)   release the child or young person on probation upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) as the court may think fit; or

(b)   commit the child or young person to the care of some person who is willing to undertake such care upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit and for such period of time (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) as the court may think fit; or

(c)   commit the child or young person to the care of the Minister to be dealt with as a ward admitted to state control; or

(d)   commit the child or young person to an institution either generally or for some specified term (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) not exceeding three years; or

(e)   in addition to or in substitution for any committal under paragraph (d) of this subsection, require the child or young person to enter into a recognizance with or without a surety or sureties to be of good behaviour and to comply with any terms and conditions the court may specify, for a term which shall not be less than twelve months or more than three years, and in default of entering into such recognizance may direct that the child or young person shall be detained or further detained in a shelter or an institution for a period not exceeding three months unless such recognizance is sooner entered into:

Provided that committal to a shelter shall not exceed thirty days:

Provided, further, that in no case shall the total term of such detention and further detention together exceed three years.

(3) Where a child or young person is brought before a court and charged with an offence (other than homicide, rape or an offence punishable by death or penal servitude for life), the court, if the child or young person admits the offence, or if it finds that the charge is proved but that, having regard to all the circumstances and to the welfare of the child or young person, it is inexpedient to make any order under subsection one or subsection two of this section, without proceeding to a finding of guilt, may make an order—

(a)   dismissing the charge; or

(b)   admonishing and discharging the child or young person; or

(c)   discharging the child or young person conditionally on his entering into a recognizance with or without sureties to be of good behaviour and to comply with any terms and conditions the court may specify and to appear for a finding of guilt and to be further dealt with in accordance with the provisions of this section if called on at any time during such period not exceeding three years as may be specified in the order.

41. It may be observed that there were a range of sentencing options available to the Children’s Court, other than imprisonment, under s 83(3), where it was inexpedient to make an order under s 83(2) in respect of a young person. Those options were either dismissing the charge, or admonishing and discharging the young person, or discharging the young person conditionally on his or her entering into a recognizance to be of good behaviour, in each case without proceeding to a finding of guilt.

Decision

42. Although the principal offence and the further offence on the Form 1 were indictable offences, it may be accepted that those offences could have been dealt with by the Children’s Court in a summary manner under s 83(2).

42. Counsel for the applicant frankly conceded that the likely disposition of the matter, had it been prosecuted in the Children’s Court proximate to the time of the offences, cannot now be established because of the paucity of available information. This is unsurprising because most cases dealt with in the Children’s Court are unlikely to have been reported. Nonetheless, it is conceivable that the applicant’s offending may have been dealt with pursuant to s 83(3) of the Child Welfare Act.

43. The Crown submitted that whilst the judge was not specifically taken to the Child Welfare Act and its relevant sections, he was referred to the availability of the same or very similar sentencing options that were available to him under the Children (Criminal Proceedings) Act, which included the proposed option of a bond without recording a conviction.

44. Importantly however, the judge did not refer to either statutory regime in his remarks on sentence. Thus it is not apparent that the judge took into account the sentencing options in respect of juveniles at the time of the offences under the Child Welfare Act, let alone under the subsequent statutory regime. Accordingly, the judge must be taken to have failed to sentence in accordance with the standards at the time of the offence: R v MJR.

45. The Crown properly accepted in oral argument that if his Honour did not sentence having regard to the Child Welfare Act, that would be an error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 505 and this Court would not assess whether and to what degree the error influenced the outcome: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

46. Ground 1 is made out.

47. Although strictly unnecessary to do so, I will consider ground 2 because it relies on substantially the same matters as are relevant to the question whether a lesser sentence is warranted in law.

Ground 2: The sentence is unreasonable or plainly unjust

49. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King at 505. To make good this ground, the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].

50. As has been frequently stated, the task is not for this Court to decide that it would have exercised its discretion differently: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]. The relevant question on appeal is whether the sentence is within a proper range: Morgan v R (1993) 70 A Crim R 368 at 371 (Hunt CJ at CL); Papworth v R [2011] NSWCCA 253 at [54] (Hoeben J (as his Honour then was); Whealy JA and Simpson J agreeing).

51. Counsel for the applicant submitted that when regard is had to each of the matters listed in s 10(3) of the Crimes (Sentencing Procedure) Act, the judge’s decision to record a conviction is unreasonable or plainly unjust. It is appropriate to set out the terms of s 10:

10 Dismissal of charges and conditional discharge of offender

(1)    Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2)    An order referred to in subsection (1)(b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A)    An order referred to in subsection (1)(c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B)   Subsection (1)(c) is subject to Part 8C.

(3)   In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

… .

52. Counsel for the applicant placed emphasis on each of the factors mentioned in s 10(3): the applicant’s antecedents; the nature of the offence; the applicant’s extenuating personal circumstances; and two other matters – delay and the impact of a conviction on the applicant’s present and future employment prospects.

53. The applicant’s contention is that in all the circumstances, any sentence other than a non-conviction is unreasonable and plainly unjust.

Decision

54. The difficulty with this ground is that the judge’s remarks on sentence demonstrate that he considered each of the factors relied upon by the applicant in an entirely appropriate manner as outlined below.

55. As to the applicant’s antecedents, counsel for the applicant accepted that the subsequent offence in 2001 may properly be taken into account for the purpose of considering whether leniency should be extended to the applicant in light of his youth: R v Hutchins; R v Boney. The judge did not treat the 2001 offence, which did not proceed to conviction, as an aggravating factor. He was correct not to do so in the absence of a conviction on the 2001 offence: R v Price [2005] NSWCCA 285 at [36] (Simpson J).

56. The applicant’s complaint is that the 2001 offence could not reasonably warrant withholding leniency to any significant degree. But as the Crown correctly submitted, it was perfectly reasonable for the judge to note this discrepancy in the applicant’s subjective case. The applicant’s subsequent offending in 2001 was plainly relevant when sentencing for the earlier offences, given that it was of a sexual nature not dissimilar to the earlier offences and, importantly, was also without explanation.

57. As to the nature of the offences it is not in dispute that s 10 may properly be applied in respect of relatively serious offences in the circumstances of particular cases: see, for example, R v Paris [2001] NSWCCA 83 at [42]; Chin v Ryde City Council [2004] NSWCCA 167; 133 LGERA 312 at [38]; R v Mauger [2012] NSWCCA 51.

58. However as Harrison J explained in R v Mauger at [19] (Beazley JA (as her Honour then was) and McCallum J agreeing), where the offence is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of s 10 decreases. His Honour added that the focus of sentencing must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; 163 CLR 561 at 577.

59. Here the indecent assaults committed upon the 9 year old boy and 12 year old girl were not trivial offences. The applicant’s counsel did not contend otherwise. The judge properly focused on the particular conduct of the applicant and the circumstances of the offending, in determining whether to exercise the discretion not to record a conviction under s 10. The judge took into account in an appropriate manner, when sentencing for the principal offence, the additional offence on the Form 1: see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42]-[44].

60. As to the applicant’s extenuating personal circumstances, his Honour found that the applicant as a 17 year old was “obviously immature” and a “very distressed and lonely” young man. Nonetheless, the nature of the offending, being an indecent assault committed upon a child, was a matter properly calling for denunciation and deterrence both general and specific, albeit the need for specific deterrence was mitigated by the applicant’s youth and his conduct (other than the 2001 offence) since the offences.

61. It has been observed that sexual abuse of children will inevitability give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. Here the victim impact statement revealed the damage the applicant had done to the male victim and the judge properly had regard to that matter in the exercise of his sentencing discretion, including consideration of s 10.

62. Next, the applicant pointed to the delay in prosecution of the offences as being of particular significance in the present case: s 10(3)(d). It was contended that the offences were relatively “stale” and considerations of fairness to the applicant in his present situation warranted a dominant role in determining the sentence. Reference was made to R v Todd [1982] 2 NSWLR 517 at 519 (Street CJ); Mill v The Queen [1988] HCA 70; 166 CLR 59; and R v DJS [2001] NSWCCA 189.

63. The applicant placed reliance on R v DJS where no conviction was recorded, as supporting an understanding and flexibility in approach when sentencing in respect of “stale” offences. However as the Crown correctly pointed out, the factual circumstances in R v DJS differed significantly from the applicant’s case.

64. In R v DJS, a 14 year old boy (20 years prior) removed his 8 year old sister’s underwear and momentarily touched her on the vagina whilst hiding in a wardrobe, and was caught by their mother who chastised him and took it no further. The sentencing judge described the incident as “at its highest, some form of a child experimenting in sexual activity”: R v DJS at [9]. Here the applicant’s offending is clearly more serious: the two victims were asleep in their own beds at night; they were awoken with a fright by the naked offender making skin-to-skin contact; in both incidents his penis was involved; he was almost 18, in a relationship with their older sister; and the offending was not merely some form of a child experimenting in some sexual activity.

65. Moreover, his Honour did have regard to the long delay of 38 years. He expressly referred to the historical nature of the matter and the difficulties this presented to a sentencing exercise occurring many years later. Against this was his Honour’s finding, which is not challenged, that the applicant had not suffered the suspense and uncertainty over 38 years of what ultimately might happen to him, as he had no real memory of the offences. His Honour carefully weighed the significance of the delay in the present case.

66. Finally, his Honour expressly recognised and took into account the potential consequences of a conviction for the applicant’s present employment and future prospects. Undoubtedly, this was one of the factors which weighed heavily in his Honour’s mind when recording that the sentencing exercise was a difficult matter. His Honour gave careful reasons why he imposed the sentence he did and why he rejected the applicant’s proposed option of a bond without recording a conviction.

67. In my view, the sentence imposed on the applicant was clearly within the range of sentences which could be imposed.

68. For these reasons, ground 2 has not been made out. There should however be a grant of leave to appeal, as ground 1 has been made out.

Is some other sentence warranted in law?

69. Once error is established it becomes this Court’s duty to resentence unless in the exercise of its discretion it concludes that no sentence, whether more or less severe, is warranted and should have been passed: Kentwell v The Queen at [42].

70. The Crown contended that if the Court concluded there was error in the exercise of the sentencing discretion, then no lesser sentence is warranted in law taking into account the full range of factors affecting sentence: s 6(3) of the Criminal Appeal Act 1912 (NSW).

71. Counsel for the applicant relied in this Court upon an affidavit from the applicant as to his circumstances post-sentence. Evidence of post-sentence conduct is admissible for the purpose of determining whether a sentence should be substituted under s 6(3) of the Criminal Appeal Act: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [124] (Johnson J; McClellan CJ at CL and Adams J agreeing).

72. The applicant’s affidavit addressed his likely employment prospects in the event of a conviction; his need to continue working because of his current financial circumstances, which he described as insecure and stressful; and his wish to relocate to Sydney to obtain work to be close to his elderly father and provide care to his father until he dies.

73. I have had regard to the applicant’s subjective circumstances mentioned above.

74. It is necessary to balance all these matters against the offending, taking into account the sentencing practices at that time.

75. Counsel for the applicant referred this Court to four cases involving what were said to be comparable offences, which in some instances were dealt with pursuant to s 83(3) of the Child Welfare Act. That is, without recording a conviction against the young person. Counsel frankly acknowledged that three of the cases were of no real assistance. Accordingly it is unnecessary to refer to them in any detail.

76. It is sufficient to note that two of the cases were not sentencing decisions, but contained brief reference to sentences which had been imposed in the Children’s Court for historical indecent assaults. One involved a conviction in 1955: A v Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 151; the other involved an offence dealt with in 1972 and it was unclear whether the matter was dealt with under s 83(2) or (3) of the Child Welfare Act: R v Magrin [2004] NSWCA 354. The third case involved a serious sexual assault including physical violence. The offender was committed to an institution: R v McLeod (Supreme Court (NSW), Maxwell J, 21 March 1983, unrep).

77. The fourth case contained the views of an experienced District Court judge (Finnane QC DCJ) concerning the likely disposition in the Children’s Court of indecent assault offences committed in 1967 by a young boy then aged 15½ years upon his four younger brothers. His Honour was sentencing the offender 40 years later: R v PL [2008] NSWDC 66. His Honour considered that the proper result in that case would have been a finding that the offence had been committed and that the magistrate would have ordered the release of the offender on probation (s 83(2)(a)), or he would have made a decision not to proceed to a finding of guilt and made an order dismissing the charge or admonishing and discharging the offender or discharging him conditionally on his entering a recognizance to be of good behaviour (s 83(3)).

78. Nonetheless Finnane QC DCJ concluded in R v PL that it was not appropriate to find the offences proved and then dismiss them pursuant to s 10 of the Crimes (Sentencing Procedure) Act. His Honour reasoned that acts of indecency committed against four separate victims, even though committed by a 15 year old boy, are serious offences and deserve to have some penalty imposed. Accordingly, his Honour convicted the offender of each offence but pursuant to s 10A of the Crimes (Sentencing Procedure) Act imposed no other penalty.

79. Here neither the sentencing judge nor this Court was provided with any materials which supported the sentencing practices of the Children’s Court under the s 83 of the Child Welfare Act in about 1976: cf Magnuson v R [2013] NSWCCA 50. As already mentioned, the applicant’s counsel frankly conceded that it is not possible to establish how that sentencing regime would have been applied at that time in the circumstances of the applicant’s case.

80. In these circumstances, the Court is constrained to take a non-statistical approach which is described by Howie J (Fitzgerald JA agreeing) in R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70]-[71], and approved in R v MJR at [107]. This requires consideration of “the nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence”: at [70].

81. Howie J continued (at [70]) that “[e]ven after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: … and be proportional to the criminality involved in the offence committed” [citations omitted].

82. The choice between sentencing options which this Court is confronted with is whether to find the offence proved without proceeding to a conviction and impose a good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act, or to convict the applicant and impose a good behaviour bond under s 9.

83. The Crown did not challenge the judge’s finding as to the objective seriousness of the principal offence being well below mid-range. Nonetheless the act of indecency committed against the 9 year old boy by the applicant aged 17½ year old was a serious offence and, in my view, deserves to have some penalty imposed.

84. I have taken into account the nature of the offending against the young boy and the maximum penalty at that time (imprisonment for 5 years), as well as the Form 1 offence. General deterrence and denunciation remain important matters in the sentencing task, notwithstanding the long delay in the prosecution.

85. I have also taken into account the factors favouring not recording a conviction including: the applicant’s youth, his difficult childhood, the long delay and the likely effect of a conviction on the applicant’s present and future employment prospects. I consider that the 2001 offence warrants withholding, to some degree, the leniency to be extended to the applicant in light of his youth.

86. In my judgment exercising the sentencing discretion afresh, an appropriate sentence is that the applicant be convicted of the offence and ordered to enter into a good behaviour bond, pursuant to s 9 of the Crimes (Sentencing Procedure) Act, for a period of two years from 20 June 2014 and otherwise on the same terms as imposed for by the sentencing judge. It follows that I am not persuaded that a lesser sentence is warranted in law.

Conclusion

87. There should be a grant of leave to appeal as an error in the sentencing process has been made out by ground 1. Nonetheless, I am not persuaded that a lesser sentence is warranted in law. Accordingly, I propose the following orders:

(1)   Grant leave to appeal.

(2)   Appeal dismissed.

88. ROTHMAN J: I agree with Gleeson JA.

89. BELLEW J: I agree with Gleeson JA.

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Decision last updated: 02 February 2016