TH v The King

[2025] NSWCCA 121

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

TH v R [2025] NSWCCA 121

Hearing dates:

4 June 2025

Date of orders:

18 August 2025

Decision date:

18 August 2025

Before:

Bell CJ at [1];
Garling J at [11];
Yehia J at [14]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – aggravated sexual intercourse without consent – applicant 15 years and 11 months old at the time of offending – where grounds of appeal assert that insufficient weight was given to youth, mental health and background – reduced moral culpability as a result of mental health and disadvantaged background – where good prospects of rehabilitation – efficacy of labels such as “adult like conduct” – whether the sentence is manifestly excessive – appeal dismissed

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19(1)

Crimes Act 1900 (NSW), s 61J(1)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:

Aiga v R [2024] NSWCCA 175

Astill v R [2024] NSWCCA 118

Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61

BAP v R [2024] NSWCCA 206

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

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

Buxton v R [2017] NSWCCA 169

Cameron v R [2013] NSWCCA 224

Church v R [2012] NSWCCA 149

Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239

Cowan v R [2015] NSWCCA 118

CW v R [2022] NSWCCA 50

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Eldridge v R; Mackay v R [2015] NSWCCA 127

Gal v R [2015] NSWCCA 242

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

House v The King (1936) 55 CLR 499; [1936] HCA 40

JA v R [2021] NSWCCA 10

Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37

KT v R (2008) A Crim R 112; [2008] NSWCCA 51

Lee v R [2016] NSWCCA 146

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Baker [2000] NSWCCA 85

R v Elemes [2000] NSWCCA 235

R v Karim [2024] NSWCCA 234

R v White [2025] NSWCCA 111

Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353

Tamer v R [2020] NSWCCA 333

TM v R [2023] NSWCCA 185

Vaiusu v R [2017] NSWCCA 71

WW v R [2023] NSWCCA 311

Category:

Principal judgment

Parties:

TH (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Anderson (Applicant)
A Isaacs (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2023/00120148

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), publication of the name or any matter which could identify the applicant or the victim is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 July 2024

Before:

Herbert DCJ

File Number(s):

2023/00120148

HEADNOTE

[This headnote is not to be read as part of the judgment]

TH (the applicant) sought leave to appeal against the aggregate sentence imposed by Herbert DCJ in the District Court of New South Wales on 10 July 2024. The applicant was sentenced following pleas of guilty to two offences of aggravated sexual intercourse without consent. The applicant was 15 years and 11 months old at the time of offending.

The applicant received an aggregate sentence of 3 years and 9 months’ imprisonment, commencing on 10 July 2024 and expiring on 9 April 2028, with a non-parole period of 2 years and 3 months, expiring on 9 October 2026.

The applicant relied on the following grounds of appeal:

1(a). The sentencing judge erred by failing to have proper regard to the applicant’s youth in assessing the moral culpability and the relevance of general & specific deterrence;

1(b). The sentencing judge erred by failing to have proper regard to the applicant’s mental health background in assessing the moral culpability and the relevance of general & specific deterrence;

1(c). The sentencing judge erred by diminishing the disadvantage suffered by the applicant: Bugmy v The Queen (2013) 249 CLR 571;

2. The sentence imposed was manifestly excessive.

The Court held (Bell CJ, Garling J agreeing, Yehia J dissenting) granting leave to appeal but dismissing the appeal:

As to ground 1, per Yehia J at [71]-[103] (Bell CJ at [2] and Garling J at [12] agreeing):

1. Each sub-ground of ground 1 involves a complaint that the sentencing judge failed to give sufficient weight or “fulsome” consideration to subjective factors. A ground of appeal which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40. Matters of weight are in the province of the sentencing judge.

House v The King (1936) 55 CLR 499; [1936] HCA 40; R v White [2025] NSWCCA 111 at [30]-[32], [88]-[89]; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61; R v Baker [2000] NSWCCA 85; Vaiusu v R [2017] NSWCCA 71; WW v R [2023] NSWCCA 311, cited.

2. The sentencing judge did address the applicant’s youth, mental health issues and background of disadvantage. Regard must be had to the fact that this was an ex tempore judgment. The contention that the sentencing judge gave insufficient weight to these factors is relevant to Ground 2, which asserts that the sentence is "unreasonable or plainly unjust”. Ground 1 is not made out.

BAP v R [2024] NSWCCA 206; Buxton v R [2017] NSWCCA 169; Aiga v R [2024] NSWCCA 175; Eldridge v R; Mackay v R [2015] NSWCCA 127; Lee v R [2016] NSWCCA 146; Cowan v R [2015] NSWCCA 118; Gal v R [2015] NSWCCA 242; Cameron v R [2013] NSWCCA 224; Church v R [2012] NSWCCA 149; KT v R (2008) A Crim R 112; [2008] NSWCCA 51; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159; JA v R [2021] NSWCCA 10; TM v R [2023] NSWCCA 185, cited.

3. The issue of whether the offending was “adult like conduct” arose during the proceedings. Precisely what constitutes “adult like conduct” is difficult to define. The indicia of “adult like conduct” can be vague, equivocal or obscure. This is particularly so in the contemporary world where children have increasing access to information, images and depictions of conduct, through social media and other digital sources, including access to pornography. Even in cases of serious offending, while the acts may resemble “adult like conduct”, one should not lose sight of the fact that where the offender is a child, neurodevelopment, emotional maturity, impulse control and consequential thinking is less advanced than it is in adults. The efficacy of labels such as “adult like conduct” may be questionable in some cases.

KT v R (2008) A Crim R 112; [2008] NSWCCA 51; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159; Tamer v R [2020] NSWCCA 333; Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353; CW v R [2022] NSWCCA 50; R v Karim [2024] NSWCCA 234; TM v R [2023] NSWCCA 185, considered.

As to ground 2, per Bell CJ at [3]-[10] (Garling J agreeing at [11], [13]):

4. Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive. Sentencing is a discretionary exercise in which there is no one correct sentence and within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected.

R v White [2025] NSWCCA 111, cited.

5. An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”. That burden has not been overcome in this case. The offending was serious and aggravated by the age of the victim and her clear lack of consent. The victim suffered substantial harm and there was no evidence of remorse or contrition beyond the guilty pleas entered. Ground 2 is not made out.

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; R v Elemes [2000] NSWCCA 235, cited.

Per Yehia J, in dissent on ground 2 at [104]-[117]:

6. There is no doubt that these offences involve serious criminal conduct. However, they were committed by a child whose mental health was deteriorating in the months leading up to the offending conduct. The applicant was a person of prior good character with no criminal record and no subsequent offending whilst on bail awaiting sentence. He has good prospects of rehabilitation and is unlikely to reoffend. In all the circumstances, the aggregate sentence went beyond what might be described as a "stern" or "harsh" sentence and is manifestly excessive.

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Astill v R [2024] NSWCCA 118; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239, cited.

Judgment

1. BELL CJ: I have had the advantage of reading the reasons of Yehia J in draft.

2. I agree, for the reasons her Honour gives, that ground one of the appeal and each of the sub grounds contained in it should be rejected.

3. I respectfully do not agree, however, with her Honour’s conclusion that the sentence imposed was manifestly excessive even though consideration of the applicant’s youth and serious mental health challenges upon which her Honour places particular emphasis may have supported a slightly lesser sentence. These were not factors, however, which the sentencing judge failed to take into account in what was a careful and closely reasoned sentencing judgment. The sentencing judge’s consideration of these matters may be seen in the extract reproduced at [67] below.

4. Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].

5. As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”, citing R v Elemes [2000] NSWCCA 235 at [22]-[23].

6. In my judgment, that “very heavy practical burden” has not been overcome in the present case. The offending was serious and aggravated by the fact that the victim was only 14 years of age who, by her screaming during the commission of the first offence, had clearly manifested her lack of consent. The sentencing judge expressly found that the applicant was actually aware that the victim was not consenting.

7. As Yehia J notes, the victim impact statement recounted the victim’s deep distress and multiple attempts at suicide in the aftermath of the offending. That distress was no doubt exacerbated by the applicant’s tracking the victim and her family who had relocated to Canberra shortly after the offences had been committed, as recounted in Yehia J’s reasons at [31]-[32]. The sentencing judge was satisfied that the victim had suffered harm that is beyond that to be expected from such an offence and that she has suffered substantial harm as a result of the offences.

8. In addition, as the sentencing judge recorded, beyond the plea, there was no evidence of any remorse or contrition in this matter.

9. Having carefully reviewed the sentencing judgment, I am not satisfied that the sentence imposed was manifestly excessive.

10. For these reasons, while I would grant leave to appeal, I would dismiss the appeal.

11. GARLING J: I agree with the judgment of the Chief Justice, and with his Honour’s reasons for proposing that the leave to appeal be granted but that the appeal be dismissed.

12. No error has been shown with respect to Ground 1, as the judgment of Yehia J shows.

13. In my assessment, the sentencing judge carefully considered, and gave weight to, all of the relevant considerations on sentence. Whilst some judges may have imposed a lesser sentence such as that which Yehia J proposes, and would not have fallen into error in so doing, I am unpersuaded that the applicant has demonstrated that his sentence is “manifestly excessive” in accordance with authority:  He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)].

14. YEHIA J: TH (“the applicant”) seeks leave to appeal against the sentence imposed on him by Herbert DCJ (“the sentencing judge”) in the District Court of New South Wales at Newcastle on 10 July 2024, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The applicant was sentenced following pleas of guilty to two offences of aggravated sexual intercourse without consent, contrary to s 61(J)(1) of the Crimes Act 1900 (NSW).

15. The applicant was 15 years and 11 months old at the time of offending. The maximum penalty for the offences for which the applicant was sentenced is 20 years’ imprisonment. By reason of his status as a child at the time of the offending, the standard non-parole period has no application.

16. The sentencing judge applied a discount of 25 per cent to reflect the utilitarian value of the applicant’s pleas of guilty. After applying the discount, the sentencing judge pronounced an indicative sentence of 2 years and 3 months’ imprisonment for sequence 1 and 3 years’ imprisonment for sequence 3.

17. The applicant received an aggregate sentence of 3 years and 9 months’ imprisonment, commencing on 10 July 2024 and expiring on 9 April 2028, with a non-parole period of 2 years and 3 months. The applicant will be eligible to be released on parole on 9 October 2026.

Grounds of Appeal

18. The applicant relied on Grounds of Appeal filed on 6 May 2025 as follows:

1(a). The sentencing judge erred by failing to have proper regard to the applicant’s youth in assessing the moral culpability and the relevance of general & specific deterrence;

1(b). The sentencing judge erred by failing to have proper regard to the applicant’s mental health background in assessing the moral culpability and the relevance of general & specific deterrence;

1(c). The sentencing judge erred by diminishing the disadvantage suffered by the applicant: Bugmy v The Queen (2013) 249 CLR 571;

2. The sentence imposed was manifestly excessive.

Circumstances of offending

19. The applicant was sentenced on the basis of a Statement of Agreed Facts. The following summary of the facts is taken from the Remarks on Sentence (ROS).

20. At the time of offending, the applicant was living with his paternal grandparents, though he would also frequent his father’s home. The victim was 14 years of age. The applicant and the victim met through mutual friends and had been in a relationship for about three months. They often met each other on weekends at the applicant’s home or at other places.

21. On 8 September 2022, the applicant messaged the victim asking her to come to his father’s home. The victim knew that her mother would not allow her to go because she had school work, so she arranged for a friend to send her a message pretending to be the victim’s employer asking her to begin work early that day. The victim was working at a restaurant not far from the applicant’s father’s home.

22. The victim’s mother dropped her at her place of employment around lunchtime and the victim walked to the applicant’s father’s home. The applicant’s father and stepmother were not present. The applicant and the victim spent some hours watching movies and “hanging out” before the victim went into the applicant’s bedroom to sleep because she was tired. She was wearing black work jeans, a top and jumper, and underwear.

Sequence 1 – aggravated sexual assault (deprivation of liberty)

23. After some time, the victim woke up to find the applicant was binding her hands together with a black leather belt to the railings at the end of the bed which restrained her. The victim was on her stomach and the applicant was sitting on her legs just above her knees. The victim was not free to move. She was still wearing her shirt but her jeans and underpants had been removed. The applicant bound the victim’s hands so tightly that she felt the blood was being cut off to her hands.

24. The applicant then started touching the victim with his hands and he used his fingers to penetrate her vagina. The victim began to kick the applicant but he turned around and held her legs down, or hit the back of her legs in the same spot, which caused bruising in the following days. The applicant then removed his fingers from the victim’s vagina.

Sequence 3 – aggravated sexual assault (deprivation of liberty)

25. The applicant then inserted his penis into the victim’s vagina and commenced having penile-vaginal intercourse with her. The victim was screaming at him to stop. She was crying. The applicant told her to stop screaming as the neighbours would hear, and pushed her head down onto the bed so that she would be quiet. The victim bit the top of her lip causing it to bleed. She continued trying to kick the applicant off and screaming at him to stop.

26. The applicant eventually removed his penis from her vagina and left the room. The applicant was not wearing a condom. The victim did not know whether the applicant ejaculated during the intercourse.

27. The victim remained in the applicant’s bedroom for 5-10 minutes, until she could remove the restraints from her hands. She sat on the bed for some time. She noticed that she was bleeding from her vagina when she was putting her pants back on. The victim went out into the lounge where the applicant was watching television. She sat on the opposite end of the couch. The applicant did not say anything to her and acted as though nothing unusual had happened.

28. The victim said that she needed to go to work and she left. She walked to a nearby park where she sat for over an hour. When she arrived at work, she was late. The applicant and his father later attended the restaurant where the applicant purchased a meal.

29. Approximately one week later, the applicant asked the victim to go to the movies with him. The victim complied. She gave the applicant some of his personal items. She has not seen the applicant in person since that day. The victim and her family moved to Canberra in late September 2022. The victim did not inform the applicant of the move.

30. A few weeks later, the victim was communicating with two of her friends, aged 13 and 14, in a group chat. They both knew the applicant. The victim sent a message stating that she had been raped by the applicant. The 13-year-old friend took a screenshot of this message and showed it to her school counsellor, who made a mandatory report.

31. On 23 September 2022, police received notification of the disclosure. On 24 October 2022, the victim participated in a recorded interview where she disclosed the offences. On 2 December 2022, the victim’s mother received a text message from the applicant which said:

“And just so you know, I already found out that you moved to Canberra and [the victim] goes to [the victim’s school]”.

32. The applicant sent a screenshot of a Google search for the victim’s school, followed by another message stating, “And that’s the school you put [the victim] in”.

33. The victim’s mother advised the police of the messages and the police applied for, and were granted, an apprehended violence order for the protection of the victim and her mother.

34. On 14 April 2023, the applicant was arrested.

Remarks on sentence

Objective seriousness

35. In determining the objective seriousness of each offence, the sentencing judge found that the age of the victim was a circumstance of aggravation. Her Honour also referred to specific aspects of the offending that informed the objective seriousness, noting the following:

“When the victim woke she was already being tied to the bedhead and some of her clothes had been removed. There was clearly a degree of premeditation involved in the offences. The victim sustained bruising to her legs, which amounts to actual bodily harm. It is not possible to determine if vaginal bleeding was caused by the digital penetration or the later offence.”

36. The victim was screaming at the applicant to stop and physically resisting. It was apparent that she was not consenting to the sexual intercourse and the applicant knew that the victim was not consenting.

37. The sentencing judge found that sequence 1 (the digital penetration) was below the mid-range of objective seriousness.

38. The sentencing judge found that sequence 3 involved unprotected penile-vaginal sexual intercourse with a 14 year old victim, which exposed the victim to the risk of pregnancy and disease. Her Honour found that sequence 3 was “the more serious offence” but was still below the mid-range of objective seriousness.

Victim impact statement

39. The sentencing judge had regard to a victim impact statement provided by the victim which disclosed her deep distress and multiple attempts at suicide in the aftermath of the offending. The sentencing judge found that the victim had suffered substantial harm as a result of the offences, beyond that to be expected from such offending.

Subjective case

40. The sentencing judge had regard to a report prepared by Ms Paige Cornell, clinical psychologist, dated 1 May 2024. In addition, a Youth Justice report, dated 31 May 2024, set out a summary of the applicant’s background. The applicant’s grandmother also gave evidence in the sentencing proceedings.

41. The applicant was 15 years and 11 months old at the time of offending. He was 17 years old at the time of sentencing. He is the second eldest of four children. The applicant lived with his parents for the first years of his life until they separated, and he was placed in the care of his grandparents. His grandparents were awarded custody of all four children when the applicant was aged five.

42. The applicant experienced significant neglect, in addition to exposure to substance abuse and violence whilst in the care of his parents. He reported no memory of those years although was aware (or had become aware) that their living conditions were “not the best”. The applicant has had inconsistent contact with his mother and reported more frequent contact with his father.

43. Ms Cornell concluded that the applicant had been exposed to a number of developmental vulnerabilities as a child. Specifically, he experienced significant neglect and attachment disturbance. He was exposed to substance abuse and violence. Ms Cornell opined that the applicant’s exposure to such development vulnerabilities elevated his risk for multiple forms of psychopathology and other health risks.

44. The applicant’s grandparents have provided him with a safe and stable home since he was taken into their care. His grandmother is identified as his main carer. The applicant continues to experience a “tumultuous” relationship with his grandfather.

45. The applicant had little memory of primary school but reported that he “hated” high school. His dislike of high school was associated with difficulties completing schoolwork and disagreements with his teachers. He explained that he believed he was placed in classes which were beyond his ability at the time, leading to an increased sense of struggle. He also reported experiencing bullying at school.

46. His mental health issues (summarised below) impacted his ability to get out of bed and he refused to attend school. His poor engagement led to enrolment at a specialist school. He was requested to leave that school part way through year 10 due to the current charges.

47. The applicant identified one close friend with whom he connected outside of school, however a rupture in their relationship occurred when the applicant was 15 years old. It was around this time that the applicant’s mental health began to deteriorate, and he refused to attend school.

48. The applicant described a history of difficulties getting along with others. The applicant’s grandmother noted a tendency for the applicant to become easily agitated and engage in aggressive and violent behaviour. The applicant explained that it is in the context of such arguments that he experiences urges to self-harm accompanied by feelings of worthlessness. His history of interpersonal difficulties indicates a sensitivity to perceived criticisms or rejections, which he internalises.

49. Ms Cornell observed that overall, the applicant is socially isolated and struggles to develop close connections. He appears to respond to conflict by ceasing contact with others, engaging in violent and aggressive behaviour or avoiding others. The applicant lacks the relevant skills to navigate interpersonal relationships appropriately.

50. The applicant identified one previous significant intimate relationship which was with the victim. When they met, he was 15 years old and she was 13. They began communicating online and then met in person. The relationship began in May 2022. In addition to this relationship, the applicant reported multiple casual sexual partners.

Sexual Functioning

51. The applicant reported becoming sexually aware around the age of 14. He identified the school curriculum as his predominant source of sexual education. He reported otherwise learning about sex through viewing pornography and through his sexual experiences.

52. The applicant reported a good understanding of consent although his views about women demonstrated difficulty in considering them beyond an extension of himself, as a male. Ms Cornell noted some areas of concern in the applicant’s account of his sexual history and functioning. The areas of concern included the higher number of sexual partners than would be typical for someone of his age and his poor ability to develop meaningful relationships with others, suggesting that he used sex as a function to connect with others.

53. Ms Cornell also noted that in the context of the applicant’s “denial of any sexually deviant interests, the violent nature of his offending and his lack of awareness of viewing pornography depicting themes of violence or coercion suggests that [his] reliance on pornography as sexual education has led to a normalisation of sexual violence, or sanitisation of his account.”

Mental health

54. The applicant has been engaged with a clinical psychologist, Dr Natalie Smith, since about the age of 5, with a focus on emotional regulation. The applicant’s grandmother reported witnessing a suicide attempt by the applicant when he was 5 years old. The applicant’s engagement in treatment over the years has been sporadic. He engaged in three sessions in 2011. He returned for treatment in 2017 and attended five sessions for assistance with oppositional defiant disorder. The applicant reportedly engaged in treatment again in 2019 to address emotional regulation, assertive communication, problem-solving and exploration of school, family and friendship concerns. Dr Smith reported that the applicant refused to attend sessions in early 2022, in the context of a significant deterioration in his mental health and a subsequent suicide attempt.

55. The applicant reported that he had become concerned about his mental health around the age of 14 or 15. He recalled engaging in self-harming behaviours from around the age of 14 and attempted suicide via hanging at the age of 15 following issues at school and conflict with a friend. He continued to engage in self-harming behaviour in the two years leading up to sentence. The applicant reported experiencing urges to self-harm in the context of feeling worthless and low in mood.

56. The applicant’s grandmother reported that the applicant had become “relaxed” in taking his medication in the period leading up to the offences. The applicant was admitted to the Nexus Child and Adolescent Mental Health Unit for a short period in June 2022 following his suicide attempt.

57. The offences were committed on 8 September 2022, only 2-3 months after his discharge from the Mental Health Unit.

58. Ms Cornell undertook psychological testing using the Behaviour Assessment System for Children – Third Edition (BASC-3). The applicant and his grandmother completed the test. The results suggested behavioural regulation difficulties and conduct and aggression problems. Ms Cornell noted that the applicant may have been experiencing an increased level of internal distress characterised by depressed mood, and that such emotional distress may have contributed to his behavioural issues.

59. Ms Cornell opined that the applicant exhibited below average social skills and may have problems with self-stimulation and inappropriate socialisation. The applicant struggles to relate to others resulting in difficulties forming and maintaining meaningful friendships and engaging in appropriate intimate relationships.

60. The applicant perpetrated the offences at a time when he was experiencing significant mental health concerns and not attending school regularly. He was regularly viewing pornography as a means to regulate his sexual urges. The frequency with which he accessed pornography was beyond what would be considered typical for his neurodevelopmental stage and suggestive of some sexual preoccupation.

61. Ms Cornell noted that although the applicant denied consumption of pornography depicting violence and coercion, it is possible that his perception of violence or coercion in sexual relationships is desensitised due to his significant history of pornography use and an apparent lack of sufficient appropriate sexual education.

62. In the years that have passed since the applicant’s offending, he appears to have become more socially isolated although his mood difficulties appear to have improved to some extent. He continues to struggle with affective and behavioural regulation in the context of stress.

63. Ms Cornell acknowledged the caution that must be exercised in assessing risk in the case of adolescents. Ms Cornell noted the following:

“[73] …While the practice of risk assessment is useful in guiding risk management decisions, limitations are present, especially when assessing individuals who engaged in problematic/harmful sexual behaviours as juveniles. Firstly, a small percentage of adolescents engage in problematic/harmful sexual behaviours, and research suggests that recidivism rates are low for those who are detected for sexual offences. It appears rare that adolescents will continue sexually abusive behaviours into adulthood, particularly following detection. Adolescents are much more likely to engage in subsequent general offending, that is non-sexual offences, than further sexual offences. Additionally, adolescence is a period of significant and rapid change, inclusive of neurodevelopmental changes. It is typical for [adolescents] to demonstrate poor behavioural and affective self-regulation skills, poor planning and consequential thinking, impulsive behaviour and they are more vulnerable to peer influence. There are similarities among adolescents who engage in sexual offending, and their pathways to offending. However, it is clear adolescents who engage in harmful sexual behaviours differ in meaningful ways to adults who sexually offend. As such, they should not be treated in the same manner. Furthermore, risk assessments are limited to the data available and are bound by time. In the context of the changes occurring around adolescence, any assessment of risk conducted of an adolescent is only valid for a six-month period before requiring review. Factors contributing to risk may change simply due to maturation, and not necessarily in response to intervention. …”.

64. Following a consideration of the items included in the Protective and Risk Observations for Eliminating Sexual Offence Recidivism (PROFESOR), Ms Cornell identified three protective factors, nine risk factors and eight neutral factors. Ms Cornell recommended that the applicant engage in psychological intervention to address his affective and behavioural regulation and depressive symptoms. He would also benefit from offence specific intervention to explore issues in his social and relationship functioning and their connection to his offending in this matter.

Findings of the sentencing judge

65. Following a comprehensive summary of the applicant’s subjective case, the sentencing judge endorsed the view that:

“It is possible that the offender’s social problems, egocentricity, poor understanding of respectful relationships, poor coping with his mental health issues, sexual preoccupation, lack of sufficient sexual education and poor responses to boundaries, were contributing factors to his offending.”

66. Her Honour accepted that the applicant’s childhood was “sufficiently supported” by his paternal grandparents from the age of 5. However, whilst in the care of his parents in his early childhood, the applicant experienced significant neglect and instability.

67. Under the heading “Moral Culpability”, the sentencing judge found:

“The offender does have a background of some disadvantage. He was a victim of bullying at school, and these are matters which have impacted on his mental health. The offences were committed against a background of deteriorating mental health. I am satisfied that the offender does have reduced moral culpability, as he has fewer emotional resources to guide his decisions.

The offender’s youth and immaturity would also be matters that have contributed to the commission of the offences. The comparative youth does have some impact on the weight to be given to the considerations of general deterrence. Clearly, in sentencing young offenders general deterrence may give way to considerations of rehabilitation. However, that principle itself, yields to others where young offenders commit crimes of an adult nature. The moderation of the youth on the consideration of general deterrence will not be as significant.

I find that there will be an additional degree of hardship for the offender in serving a custodial sentence due to his mental health and personality issues.”

68. The sentencing judge found that beyond the plea of guilty, there was no evidence of remorse or contrition. However, her Honour noted that the applicant has no prior convictions and accepted that he was a person of prior good character. Furthermore, the applicant had not committed any offences since the commission of the subject offences. The sentencing judge was satisfied that the applicant had good prospects of rehabilitation and was unlikely to reoffend.

69. The sentencing judge made a finding of special circumstances having regard to the matters raised with respect to the applicant’s moral culpability and that the applicant would benefit from an extended period of supervision to engage in treatment and support services.

70. The sentencing judge considered totality “an important consideration” because the offences occurred within one episode of criminality.

Consideration of Grounds 1(a)-(c)

71. Although Grounds 1(a)-(c) are discrete sub-grounds, it is appropriate to deal with them together because each involves a complaint that the sentencing judge failed to give sufficient weight or “fulsome” consideration to subjective factors, namely youth, mental health and deprived background. The applicant contends that the sentencing judge erred by failing to give proper regard to the applicant’s youth and the applicant’s mental health background in assessing moral culpability and determining the weight to be afforded to general and specific deterrence. The applicant also contends that the sentencing judge erred by diminishing the disadvantage suffered by the applicant, thereby misapplying the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

72. A ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”). It is well-established that merely claiming that insufficient weight, or excessive weight, was given to one factor is an unpromising basis for establishing House v The King error: R v White [2025] NSWCCA 111 at [30]-[32], [88]-[89] (Bell CJ, Payne JA and N Adams J agreeing); Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16] (Bathurst CJ and Leeming JA agreeing with Bell P); R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing); Vaiusu v R [2017] NSWCCA 71 at [29] (R A Hulme J, Bathurst CJ and Beech-Jones J agreeing). Matters of weight are very much in the province of the sentencing judge.

73. The applicable principles were summarised by Wilson J (Kirk JA and Fagan J agreeing) in WW v R [2023] NSWCCA 311 as follows:

“[60] …a ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40. In that passage Dixon, Evatt and McTiernan JJ said:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows. extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.’

[61] Complaints concerning too much or too little weight given to some matter can be relevant to a ground contending that the order of the sentencing court was “unreasonable or plainly unjust”, as the plurality said in the following passage:

‘It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

[62] That statement was specifically endorsed in Markarian v The Queen (2005) 228 CLR 357 at 370-371; [2005] HCA 25…

…

[63] The principle given in House v The King and applied in Markarian has been regularly applied in this Court. A small sample of its application may be seen in R v Baker [2000] NSWCCA 85 at [11]; Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49 at [25] and [53]; Hillsley v R [2013] NSWCCA 78 at [60]; Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [112] – [113]; and Zhao v R [2016] NSWCCA 199 at [58] – [59]. There are many others. Indeed, the principle is so well known that it was described as “trite” in Ahmad v R [2021] NSWCCA 30 at [18]…

…

[64] Nevertheless, this Court is asked by the applicant to find error in the degree of weight given to particular features by the sentencing judge, in circumstances where he has not pleaded a ground of manifest excess, and does not ask the Court to view grounds 1, 4 and 5 as relevant to a complaint of that nature. In my opinion that is the only way in which these proposed grounds could have been legitimately advanced, and can be legitimately addressed by the Court in determining this application.”

74. Grounds 1(a) to 1(c) should be dismissed for the following reasons.

74. The sentencing judge did address the applicant’s youth, mental health issues and background of disadvantage. While it is true that her Honour did so in a concise manner, regard must be had to the fact that this was an ex tempore judgment. Sentencing judges dealing with busy lists and high-volume sentencing work cannot be expected to set out at length all the various relevant principles and how they might or might not operate in a given case. This Court has acknowledged on a number of occasions the pressures the judges of the District Court are under in managing busy lists often containing multiple sentencing proceedings. Ex tempore judgments should be considered with a degree of latitude: BAP v R [2024] NSWCCA 206 at [89] (Yehia J, Wright and Cavanagh JJ agreeing); Buxton v R [2017] NSWCCA 169 at [53] (Bathurst CJ and Walton J); Aiga v R [2024] NSWCCA 175 at [67] (N Adams J, Ierace and Sweeney JJ agreeing); Eldridge v R; Mackay v R [2015] NSWCCA 127 at [91]-[95] and [102]-[105] (Johnson J, Hoeben CJ at CL and Hamill J agreeing).

75. That said, even reasons given ex tempore must provide an explanation of how issues in dispute were resolved, why they were resolved in a particular way and how the sentence imposed was arrived at: Buxton v R [2017] NSWCCA 169 at [53] (Bathurst CJ and Walton J); Lee v R [2016] NSWCCA 146 at [34] (Basten JA and McCallum J, Davies J agreeing); Cowan v R [2015] NSWCCA 118 at [60] (Bellew J, Bathurst CJ and Simpson J agreeing); Gal v R [2015] NSWCCA 242 at [39] (Beech-Jones J, Bathurst CJ and Price J agreeing).

76. Following a comprehensive summary of the applicant’s subjective case, the sentencing judge addressed the applicant’s moral culpability. The sentencing judge found that the applicant did have a background of “some disadvantage”. The applicant contends that by using the word “some”, the sentencing judge mischaracterised and understated the impact of the disadvantage experienced by the applicant.

77. This complaint is not made out. There is no dispute that the sentencing judge did produce a comprehensive summary of the applicant’s subjective case. The reference to “some disadvantage” read in the context of the overall remarks on sentence, was a reference to the entirety of the subjective history placed before her Honour. That history included that the applicant had experienced a period of significant neglect and disadvantage in his early years which was followed by a period of stability in the care of his grandparents and, in particular, his grandmother.

78. The use of the descriptor “some disadvantage” was not a mischaracterisation or understatement of the background that had been comprehensively summarised, but rather a reference to the entirety of that background including the period of stability.

79. The sentencing judge had regard to the history of disadvantage together with the history of being bullied in concluding that “these are matters which have impacted on his mental health” (emphasis added). The sentencing judge then found that the offences were committed in the context of deteriorating mental health and concluded that the applicant did have “reduced moral culpability”, adding that he had “fewer emotional resources to guide his decisions”.

80. The contention that the absence of any express reference by the sentencing judge to the decision of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) yields a conclusion that her Honour failed to take into account a material consideration for the purpose of House v The King, cannot be sustained. The comprehensive summary of the applicant’s subjective case demonstrates that the sentencing judge was very much alive to the applicant’s mental health issues and expressly referred to them in finding that his moral culpability is reduced.

81. The complaint that the sentencing judge did not determine that the applicant’s moral culpability was significantly reduced, is not a failure to take into account a material consideration.

82. In addition to the applicant’s mental health and background of disadvantage, the sentencing judge separately considered the applicant’s youth and immaturity as matters that contributed to the commission of the offences. The principles applicable to sentencing children are well settled: KT v R (2008) A Crim R 112; [2008] NSWCCA 51 (“KT”); BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (“BP”); JA v R [2021] NSWCCA 10. Those principles were recently summarised by me in TM v R [2023] NSWCCA 185 (“TM”) (Payne and Stern JJA agreeing).

83. Although the sentencing judge did not expressly refer to these authorities, her Honour commenced the ROS by observing that although the applicant must be sentenced according to law, principles pursuant to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) were relevant and should be taken into consideration.

84. In the comprehensive summary of the applicant’s subjective case, the sentencing judge referred to the applicant’s young age on multiple occasions. In summarising Ms Cornell’s report, the sentencing judge referred to the impact on children who experience adversity at a young age, including compromised executive functioning, difficulties with regulation and impaired social language development.

85. The sentencing judge acknowledged the presence of a number of concerns including social, psychological and sexual functioning. Her Honour said that “[h]e also presents as a vulnerable young man who is yet to form a strong sense of identity and is not well connected to others” (emphasis added).

86. The relative importance of youth as a factor in sentencing is determined by the circumstances in the individual case. The sentencing judge determined that the applicant’s youth had “some impact on the weight to be given to the considerations of general deterrence”. This acknowledgement was a recognition of the general principles that in sentencing youth, general deterrence may be of less significance and considerations of rehabilitation may be of more significance.

87. However, the sentencing judge concluded that this principle “yields to others where young offenders commit crimes of an adult nature”. In such a case, the moderation of general deterrence will not be as significant. The sentencing judge determined that this was such a case.

88. In the course of oral submissions, the contention that the sentencing judge had erred by failing to have proper regard to the applicant’s youth in assessing his moral culpability and the weight to be afforded to general and specific deterrence was developed, culminating in the assertion that it was not open to the sentencing judge to find that the applicant’s offending was “adult like conduct”.

89. As already alluded to, there is authority for the proposition that the emphasis given to rehabilitation may be moderated when the young person has conducted themselves in the way “an adult might conduct him or herself and has committed a crime of violence or considerable gravity”: KT at [25] (McClellan CJ at CL).

90. This principle pre-dates KT and has been endorsed in decisions of this Court post-dating KT: see, for example, Tamer v R [2020] NSWCCA 333 at [46]-[49] (Bellew J, Brereton JA and Campbell J agreeing); Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 (“Singh”) at [36]-[45] (Bell P, Johnson and R A Hulme JJ agreeing); CW v R [2022] NSWCCA 50 at [65] (Hamill J, Johnson and Rothman JJ agreeing); R v Karim [2024] NSWCCA 234 at [79] (Mitchelmore JA, Davies and Campbell JJ agreeing).

91. That is not to ignore however that precisely what constitutes “adult like conduct” is difficult to define. The indicia of “adult like conduct” can be vague, equivocal or obscure. This is particularly so in the contemporary world where children have increasing access to information, images and depictions of conduct, through social media and other digital sources, including access to pornography. Even in cases of serious offending, while the acts may resemble “adult like conduct”, one should not lose sight of the fact that where the offender is a child, neurodevelopment, emotional maturity, impulse control and consequential thinking is less advanced than it is in adults. The courts should not be “…over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult”: BP at [6] (Hodgson JA).

92. As I said in TM at [49]:

“The qualification to the principles concerning young persons where they conduct themselves in an “adult like manner” should be applied with some caution. While in some cases, significant planning, or other indicia of mature decision-making, may result in a diminution of the relevant principles, the gravity of an offence does not, by itself, demonstrate “adult like” behaviour. The assessment must be one of maturity and conduct, not only the degree of violence. Here, the applicant engaged in violent conduct resulting in serious injury to the victim. However, the conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group. I agree with the sentencing judge’s remarks that the distinction between “adult like” and “non-adult like” behaviour was unhelpful in this case.”

94. The efficacy of labels such as “adult like conduct” may be questionable in some cases. The essential issue is an assessment of the objective seriousness of the offending, which is informed by factors which include, but are not limited to, the nature and circumstances of the offence, degree of planning, premeditation, sophistication and organisation, the use of weapons, and the existence of an extensive criminal history: Singh at [37] (Bell P, Johnson and R A Hulme JJ agreeing).

95. The applicant does not take issue with the statement of principle that the emphasis given to rehabilitation may be moderated when the young person has engaged in “adult like conduct”. Instead, the applicant contends that it was not open to the sentencing judge to make that finding in this case. The applicant’s conduct is described as “an ineffectual and childish attempt at restraint from which the victim was able to self-release”.

96. I do not agree with that characterisation of the applicant’s conduct. The offending cannot be described as impulsive. There was a “degree of premeditation”, perhaps better described as a degree of “deliberation” on the part of the applicant. Importantly, the applicant was aware the victim was not consenting and persisted in his sexual violence notwithstanding her distress and resistance. In the circumstances, it was open to the sentencing judge to assign importance to general deterrence while attenuating the principles relevant to sentencing youth.

97. The applicant’s complaint that the sentencing judge erred by failing to address how the applicant’s youth and mental health issues impacted upon the assessment of specific deterrence, is also unsustainable. The contention appears to be that in failing to specifically address specific deterrence, given the sentence that was ultimately imposed after application of the discount, the sentencing judge somehow took it into account, against the applicant, in determining the proportionate sentence.

98. In some cases, a failure by a sentencing judge to refer to a principle may be taken as indicating that the judge did not take that matter into account. In other cases, it may be clear from the reasoning that although no reference is made to the principle, it was in fact taken into account: Cameron v R [2013] NSWCCA 224 at [29]-[32] (Hoeben CJ at CL, Bellew J and Barr AJ agreeing); Church v R [2012] NSWCCA 149 at [36] (Button J, McClellan CJ at CL and Price J agreeing).

99. Unsurprisingly, the sentencing judge did not refer to specific deterrence because the applicant had no criminal convictions or history of non-compliance and was assessed as having good prospects of rehabilitation and being unlikely to reoffend. Given the applicant’s subjective case and her Honour’s findings, it was not necessary to give any weight to the need to specifically deter the applicant.

100. It is noteworthy that no oral submissions were made by the applicant or the Crown during the sentencing proceedings to suggest that specific deterrence was a relevant factor. The Crown’s written submissions made only general reference to the purposes of sentencing and the applicant’s written submissions did not refer to specific deterrence at all but rather submitted that the applicant had no criminal history and was unlikely to re-offend.

101. It is clear to me that the fact that her Honour did not refer to specific deterrence allows an inference to be drawn that her Honour did not take specific deterrence into account as a matter that operated unfavourably for the applicant.

102. The complaint that the sentencing judge failed to give “fulsome” consideration to the applicant’s youth, mental health and deprived background, does not establish House v The King error. The contention that the sentencing judge gave insufficient weight to these factors is relevant to Ground 2, which asserts that the sentence is “unreasonable or plainly unjust”.

103. Accordingly, Grounds 1(a)-(c) are not made out.

Consideration of Ground 2

104. The principles applicable to a complaint that a sentence is manifestly excessive were summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443], as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

105. The principles expressed in Obeid were cited with approval by Bell CJ (Stern JA and Button J agreeing) in Astill v R [2024] NSWCCA 118 at [77].

106. In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, after summarising the principles applicable to determining whether a sentence is manifestly excessive, Bell P (Gleeson and McCallum JJA agreeing) continued as follows:

“[42] To this oft-cited summary of principles, may be added the following:

(1) Sentencing is an “exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56];

(2) Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61];

(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61];

(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” – R v Elemes [2000] NSWCCA 235 at [22]-[23];

(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59];

(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68];

(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30];

(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39];

(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74]; and

(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

107. To this analysis I would adopt the observations of Payne JA and Button J (Schmidt J in dissent) in Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 at [9]:

“…[J]ust as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors.”

108. Although the sentencing judge concluded that rehabilitation “yields” to general deterrence where a young offender commits crimes of an adult nature, her Honour assessed each offence as falling below the mid-range of objective seriousness.

109. To the extent that there was “a degree of premeditation”, it was relatively low. There was no evidence that the applicant intended to have nonconsensual sexual intercourse with the victim when he invited her to his father’s home. The facts are that upon her attendance they spent some hours watching movies and “hanging out” before the victim went to the offender’s bedroom to sleep because she was tired.

110. The “premeditation” must have only consisted of a few minutes prior to the sexual assaults. Essentially, the time required to retrieve the belt and bind the victim’s hands to the end of the bed. What ensued was serious criminal conduct committed in the face of the victim’s distress and resistance. However, the criminal conduct did not involve planning and organisation or sophistication.

111. The applicant was not yet 16 years of age at the time of the offending. He had long-standing mental health issues, having reportedly first attempted suicide at the age of 5. The applicant engaged in psychological counselling in 2011, when he was 5, and returned to therapy in 2017 and 2019. Information provided by his clinical psychologist suggested a history of significant affective and behavioural regulation difficulties, including experiencing thoughts of suicide and engaging in self-harming behaviours. Only 2-3 months before the applicant committed these offences, he was admitted to the Nexus Child and Adolescent Mental Health Unit for a short period, following a suicide attempt. This is a very powerful factor underpinning a reduction in moral culpability.

108. Although the applicant experienced a period of stability in his formative years, the unchallenged history is that whilst in the care of his biological parents in his early childhood, he experienced significant neglect and instability and was exposed to parental substance abuse and violence. It is noted that the applicant would have experienced a significant attachment disruption in the context of the changes in his care at a young age.

109. The interrelated issues of a history of significant neglect and instability in early childhood and deteriorating mental health leading up to the offences operated to reduce the applicant’s moral culpability.

110. Notwithstanding the applicant’s limited remorse, specific deterrence and the protection of the community had little, if any, work to do because the applicant was found to have good prospects of rehabilitation and is unlikely to reoffend. Ms Cornell noted that the applicant’s family was supportive (particularly his grandmother) and that he was engaged in psychological treatment.

111. The applicant had no criminal convictions and no history of non-compliance with court orders. He was subject to stringent bail conditions for a period of nearly 15 months prior to the sentencing proceedings and did not breach these conditions. This was an isolated episode of offending.

112. There is no doubt that these offences involve serious criminal conduct warranting a period of full-time detention. However, they were committed by a child whose mental health was deteriorating in the months leading up to the offending conduct. The applicant was a person of prior good character with no criminal record and no subsequent offending whilst on bail awaiting sentence. He has good prospects of rehabilitation and is unlikely to reoffend. In all the circumstances, I am of the view that the aggregate sentence went beyond what might be described as a “stern” or “harsh” sentence and is manifestly excessive.

113. Accordingly, I would uphold Ground 2.

Resentence

118. Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act1999 (NSW) and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

119. An affidavit affirmed by the applicant on 23 May 2025, affidavits affirmed by the applicant’s solicitor, Mr Julian Stevens on 6 May 2025 and 23 May 2025, and an affidavit affirmed by the applicant’s paternal grandmother on 29 May 2025 were read on the usual basis without objection, subject to a limited objection to a portion of the report annexed to the affidavit of Mr Stevens dated 6 May 2025. I have made reference to the content and annexures of these affidavits below.

120. On 13 December 2024, the applicant was assessed by Dr Sarah Griffith, clinical neuropsychologist. Dr Griffith produced a report dated 11 February 2025. The respondent objected to three paragraphs of Dr Griffith’s report ([29]-[31]). It was submitted that the Court could not give meaningful weight to Dr Griffith’s “speculative” opinion on emerging possible diagnoses which appear unclear or are unknown. It was submitted that this portion of Dr Griffith’s report is irrelevant and should not be admitted on the usual basis. I have not had regard to these three paragraphs on resentence.

121. Dr Griffith’s summary of the applicant’s background and history of mental health issues is consistent with that provided by Ms Cornell. The applicant has attempted suicide on multiple occasions, including at the age of 5 and shortly before the offending. Dr Griffith opined that the applicant has the cognitive resources to engage in rehabilitation programs, including psychological therapy. The applicant has been engaged with a psychologist and a case worker whilst in custody.

122. The applicant deposed that since entering custody, he has had one misbehaviour report which was for swearing at someone. The applicant has been assaulted on a couple of occasions by other young people but has not retaliated. The applicant has the support of his family and receives weekly visits from them. Since entering custody, the applicant has remained compliant with his anti-depressant medication.

123. The applicant has completed several programs in custody, including Traffic Control Work Training, a First Aid course, and Warehouse Supply Chain Training.

124. On 30 January 2025, the applicant was transferred to a Pre-Release Unit due to his mature behaviour and positive engagement. The applicant is at the highest level of a 4-stage incentive scheme, which recognises ongoing positive behaviour and role modelling, active engagement in case plan interventions, progress toward goals and positive participation in unit activities and centre programs.

125. In custody, the applicant has commenced “Changing Habits and Reaching Targets (CHART)”, a Youth Justice evidence-based intervention program targeting specific criminogenic domains. The applicant has completed the following modules: Motivation to Change; Healthy Relationships; Problem Solving; Understanding Anger; and Alcohol and Other Drug Education. The applicant has also commenced “Let’s Get Relationship Ready”, another Youth Justice program to address unhealthy behaviours by young people in relationships.

126. The applicant attends weekly counselling with the psychologist at the youth justice centre. The applicant has also commenced studying the year 11 Preliminary Higher School Certificate and engaged in various extracurricular activities.

127. Like the sentencing judge, I find that each offence falls below the middle of the range of objective seriousness, with the sexual assault taking place second in time being the most objectively serious.

128. A matter of some significance, is the evidence contained in the report of Ms Cornell (at [73]) that adolescents who engage in harmful sexual behaviours differ in meaningful ways to adults who sexually offend and should not be treated in the same manner. It is typical for adolescents to demonstrate poor behavioural and affective self-regulation skills, poor planning and consequential thinking and impulsive behaviour. It is in this context that the applicant’s moral blameworthiness should be assessed.

129. I find that the interrelated subjective circumstances of the applicant’s youth, background of disadvantage and mental health issues, operate to reduce his moral culpability and the weight to be afforded to denunciation.

130. I find that the applicant has good prospects of rehabilitation and is unlikely to reoffend. Specific deterrence and the protection of the community are of little significance in this case. As outlined above, not only was the applicant a person of good character with no criminal record, but he did not reoffend whilst subject to bail.

131. The applicant must be held to account and the harm to the victim acknowledged. The victim impact statement demonstrates that the victim has suffered “tremendously” across every aspect of her life. She was so distressed following the incident that she made a number of suicide attempts. I accept that the victim suffered substantial harm.

132. General deterrence remains a relevant consideration to which weight must attach because of the nature and circumstances of the offending and in particular the applicant’s persistent sexual violence in the face of resistance by the victim. However, recognising the capacity for young people to reform and mould their character to conform to society’s norms, rehabilitation is a significant consideration. The applicant’s rehabilitation has been largely demonstrated by the material that has been tendered on the usual basis. He appears to have made significant progress.

133. I am not persuaded that the sentence for one offence can wholly comprehend the criminality involved in the other. However, the offences constitute one episode of criminal offending, and the degree of notional accumulation will not be significant having regard to the principle of totality.

134. I make a finding of special circumstances warranting a variation of the statutory ratio because the applicant would benefit from an extended period of supervision to ensure that the applicant has an adequate opportunity to engage in counselling and treatment for his mental health issues and to readjust to life in the community.

135. Like the sentencing judge, I am satisfied that special circumstances exist justifying the detention of the applicant as a juvenile in a juvenile detention centre: s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW).

136. In resentencing the applicant, I propose the following indicative sentences, applying a discount of 25 per cent to reflect the utilitarian value of the applicant’s pleas:

1. Sequence 1: an indicative sentence of 1 year and 9 months’ imprisonment.

2. Sequence 3: an indicative sentence of 2 years and 3 months’ imprisonment.

137. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed on the applicant in the District Court on 10 July 2024, and in lieu thereof sentence the applicant to an aggregate term of 2 years and 9 months’ imprisonment commencing on 10 July 2024 and expiring on 9 April 2027, with a non-parole period of 1 year and 9 months’ imprisonment. The applicant will be eligible to be released on parole on 9 April 2026.

4. The applicant is to serve the whole of his sentence as a juvenile offender pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW).

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Decision last updated: 22 August 2025