WB v R

[2020] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

WB v R [2020] NSWCCA 159

Hearing dates:

12 June 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Before:

Bell P at [1]
Davies J at [2]
N Adams J at [85]

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentence imposed by Judge Norton SC in the District Court on 1 August 2019. In lieu, sentence the appellant to an aggregate sentence of imprisonment for three years commencing 31 July 2019 and expiring 30 July 2022 with a non-parole period of two years expiring 30 July 2021.   

Catchwords:

CRIMINAL LAW - appeals - sentencing - historical offences - indecent assaults of a male and attempted buggery

SENTENCING - appeal against sentence - severity - applicant a young person at time of offending - where victim six years younger - where offending endured for a number of years and involved different forms of activity - some offences opportunistic and others involving planning - whether sentencing judge erred by assessing objective seriousness of four offences on a collective basis - whether sentencing judge failed to take into account the sentencing options under the Child Welfare Act 1939 (NSW) - whether sentencing judge erred in finding that the offending resulted in substantial injury - whether sentence manifestly excessive - appeal allowed

Legislation Cited:

Child Welfare Act 1939 (NSW) ss 4, 83

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW) ss 80, 81

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25AA

Cases Cited:

Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191

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

R v Jammeh [2004] NSWCCA 327

R v Pickett [2004] NSWCCA 389

R v Tuala [2015] NSWCCA 8; 248 A Crim R 502

TC v R [2016] NSWCCA 3

Zreika v R [2012] NSWCCA 44 at [28];

Texts Cited:

Nil

Category:

Principal judgment

Parties:

WB (Applicant)
Crown (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
M Millward (Respondent)

Solicitors:
S Joyner (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/176791

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

1 August 2019

Before:

Norton DCJ

File Number(s):

2018/176791

Judgment

1. BELL P:   I agree with Davies J.      

2. DAVIES J:   On 1 May 2019 the applicant pleaded guilty in the Campbelltown Local Court to four charges as follows:

Sequence 1: Attempted buggery contrary to s 80 of the Crimes Act 1900 (NSW) (since repealed). The maximum penalty was penal servitude for five years.

Sequences 4, 5 and 7: Indecent assault on a male contrary to s 81 of the Crimes Act (since repealed). The maximum penalty was penal servitude for five years.

3. The applicant was committed for sentence to the District Court. He appeared for sentence before her Honour Judge Norton SC. He asked her Honour to take into account two further charges of indecent assault on a male, each placed on a separate Form 1 in respect of sequences 4 and 7.

4. On 1 August 2019 Judge Norton sentenced the applicant to an aggregate sentence of imprisonment for eight years commencing 31 July 2019 and expiring on 30 July 2027, with a non-parole period of five years seven months expiring 28 February 2025.

5. The indicative sentences were as follows:

Sequence 1: Imprisonment for three years;

Sequence 4 and Form 1 (Sequence 2):   Imprisonment for three years;

Sequence 5: Imprisonment for two years seven months;

Sequence 7 and Form 1 (Sequence 8):   Imprisonment for three years.

6. The applicant now seeks leave to appeal against the sentence on the following grounds:

1.   The learned sentencing judge erred in failing to take into account that the applicant was a ‘young person’ as defined under the Child Welfare Act 1939 as at the time of some or even all of the offending. Being a “juvenile offender”, her Honour:

(a)   erred in failing to properly take into account the applicant's age at the time of the offending; and

(b)   erred in determining the level of objective seriousness of each offence.

2.   Her Honour erred in finding that the offending resulted in substantial injury.

3.   The aggregate sentence imposed was manifestly excessive.

The offending

7. The applicant was sentenced on the basis of agreed facts which said that the charges related to the ongoing sexual assault of the victim XY by the offender WB from 1966 to 1975. At that time WB was aged between 11 and 20 years and XY was aged between 5 and 14 years. However, the details of each of the offences in respect of which the applicant was charged and to which he pleaded guilty related to offending between January 1972 and March 1974 when XY was aged between 11 and 12 years and the applicant aged between 16 and 18 years.

8. The applicant’s mother was a babysitter for the local area, and XY’s mother had enlisted her services to babysit XY, his brother and sister while she worked. All of the offending occurred at the applicant’s mother’s house.

9. The first offence in time, sequence 5, occurred in the period January 1972 to December 1973. The applicant said to XY, “Come down the back and we will feed Hector”. Hector was the family pet duck. Both boys went into the duck shed and the applicant then pulled his pants down. He asked XY to masturbate him. XY complied and then the applicant started masturbating himself. The applicant then asked XY to get on his knees and perform fellatio on him. XY did this until the applicant ejaculated into XY’s mouth.

10. The next offences in time were sequences 7 and 8. They occurred on a Saturday morning during the summer of 1972 to 1973. The applicant told XY’s brother to go to the milk bar in West Fairfield. After the brother had left, the applicant said to XY, “in my bedroom”. XY complied.

11. Once in the bedroom, the applicant pulled XY's pants down and masturbated his penis before asking XY to masturbate the applicant's penis. XY did so. The applicant then asked XY to perform fellatio on him, which XY did (Sequence 7). Thereafter, the applicant performed fellatio on XY (Sequence 8).

12. Sequences 1, 2 and 4 took place on a Saturday morning during the summer of 1973 to 1974. The applicant told XY that he would take him to get a new bike. The applicant drove XY to an area near Newton Road, Wetherill Park and stopped the car in bushland. The applicant started to fondle XY’s penis over his pants (Sequence 2). The applicant then removed his penis from his pants before removing XY's pants and lying him down. The applicant attempted to insert his penis into XY's anus (Sequence 1). XY said, "Stop it hurts'' and started to cry. The applicant ceased his attempt at penetration of XY’s anus, and he put his penis between XY's legs, rubbing it back and forth until he ejaculated (Sequence 4).

13. Over the years, each time the assaults occurred, the applicant would say to XY, "If you tell, you will go to gaol”. This made XY feel scared and afraid, and as a result he did what the applicant told him to do.

14. In 1975 the babysitting ceased. XY never thereafter saw the applicant or his family again.

15. XY first divulged the sexual assaults to a psychologist on 24 April 2017. He first reported the matter to Muswellbrook Police Station on 27 June 2017, and provided a statement to the police.

Subjective features

16. The applicant was aged 63 at the time of sentencing. He did not give evidence at the sentence proceedings. The only evidence concerning the applicant was contained in a report from a forensic psychiatrist, Dr Adam Martin who saw the applicant on one occasion.

17. At the time of the consultation with Dr Martin, the applicant was single, divorced and with three children with whom he had no contact. He lived with a friend, worked casually doing bar work which he had done for some 13 years, and was in receipt of Newstart benefits.

18. He took medication for an underactive thyroid, blood pressure and kidney stones. He also used an inhaler.

19. He told Dr Martin that he had attended a sex offender therapy program while in custody in the 1990s. He denied any mental health issues.

20. He told Dr Martin that he had previously been an alcoholic and had been dependent on illicit drugs including heroin, LSD, amphetamines and cannabis. He said he had not used drugs for many years. At that time he was drinking two schooners a day but he had previously drunk all day, every day, for many years. He said he had not been intoxicated for ten years and had previously attended Alcoholics Anonymous until about fifteen years before the consultation. He smoked cigarettes.

21. He said that his childhood was "rough" and that his father was a heavy drinker. He said that he was sexually abused by his eldest brother repeatedly from about the age of seven until twelve.

22. He said he had been married for five years but had divorced many years prior.

23. He told Dr Martin that he identified as heterosexual, and he denied paraphilic urges, fantasies or behaviours including being attracted in any way to children. He related previous sex offending to drug use. He was unable to explain his offending otherwise. In relation to the specific offending to which he had pleaded guilty, he said that he had no memory and was unable to explain what had happened.

24. Dr Martin did not elicit any cognitive defects. He did not think the applicant presented with any clear major mental disorder. Dr Martin thought his offending history suggested the possibility of paedophilia, although he noted the applicant’s denials of urges, fantasies or paraphilic tendencies. Dr Martin thought his history was suggestive of substance use disorder, then in remission.

25. Dr Martin said his history was suggestive of anti-social behaviour, and that was plausibly linked to adverse childhood experiences including having been sexually abused as a child and having a less than ideal upbringing. His disrupted education and early contact with the criminal justice system suggested significant psychosocial problems growing up.

26. Dr Martin said it was difficult to know how the offending might be associated with any of the conditions referred to. He said it was plausible that drug use might act as a disinhibiting agent. He said the applicant’s account of having been sexually abused as a child would have likely distorted his sexual attitudes and made him more prone to offending sexually at that time.

27. Dr Martin thought his prospects for rehabilitation were good and that he had a good prognosis. Dr Martin said that the applicant was able to recognise the wrongfulness of his behaviour. Although he had a poor memory of it, which impacted on his ability to express remorse, the applicant did not try to externalise responsibility for his behaviour.

28. The applicant first came before the courts as a juvenile charged with break, enter and steal when he was 17 years of age. He has other offences as an adult including stealing, indecent assault on a female, malicious injury, four counts of indecent assault, one count of sexual intercourse of a person aged between 10-16 years and one count of sexual intercourse without consent. For those sexual offences he received an 18 months’ non-parole period with an additional term of three years. There was a later offence of sexual intercourse of a child aged between 10-16 years where he received a non-parole period of three years with an additional term of two years. Other offences included breaching an AVO, malicious damage, assault, cultivating a small quantity of a prohibited plant and two PCA offences.

Remarks on Sentence (ROS)

29. The sentencing judge set out the agreed facts and summarised the material in Dr Martin’s report. Her Honour accorded a 25% discount for the early plea, and noted a Victim Impact Statement together with a report from a psychologist, Clayton Rogers, who had been treating XY.

30. Her Honour found that the offences were at or just above the mid-range. On matters of aggravation, her Honour said that there was an element of a position of trust, but that the facts did not establish that there was an abuse of trust or authority. However, her Honour found that XY was vulnerable because of his young age and the difference in age between him and the applicant. Her Honour also found that it was of relevance that the offending did not stop until the babysitting arrangement came to an end.

31. In terms of mitigating factors, her Honour said that it was difficult to assess the weight of Dr Martin’s report and the impact of any courses the applicant may have completed in custody, because there was a lack of evidence as to the nature of the courses, the extent of the applicant’s participation, and the honesty and accuracy of his reporting to Dr Martin. Her Honour noted the applicant’s poor memory and his inability to offer an explanation for his offending.

32. Her Honour found that the pleas of guilty supported a finding of genuine remorse, although the applicant’s insight into the effects on the victim remained limited. She found Dr Martin’s comment that the applicant did not try to externalise responsibility for his behaviour as being illustrative of remorse. Her Honour had regard to his criminal record. She said there was no evidence of the applicant being sexually abused by his brother other than the history given to Dr Martin, and there was no evidence of the applicant having sought or received any treatment for whatever trauma that abuse may have caused. Her Honour concluded that there was some remorse and that the applicant had moved some way to rehabilitation.

33. Her Honour noted that the applicant was young when he committed the offences, and she accepted that that was a significant matter in the sentencing exercise. Her Honour noted that the applicant had spent a significant amount of time in custody in the past but that there had been a significant period in which there was no report of sexual offending. Her Honour found that his chances of reoffending would be assisted by him addressing the trauma in his youth and having an extended period of supervision in the community. For that reason her Honour made a finding of special circumstances.

34. Her Honour found that there was a need for both specific and general deterrence but that the need for specific deterrence was reduced by a small amount by reason of the applicant not having committed any sexual offences since his release from custody in 2000.

35. Her Honour found that some of the offences were opportunistic and brief but the evidence suggested that the applicant sometimes took steps to isolate the victim to enable him to have access to him. Her Honour found that the offences occurred over a significant period of time, involving different forms of activity, and that a significant degree of accumulation was appropriate.

Grounds of appeal

Ground 1: Failing properly to take into account the applicant was a ‘young person’ under the Child Welfare Act at the time of offending, and in determining the level of objective seriousness

Submissions

36. The applicant submitted that at the time of the commission of the offences, the applicant was a young person within the meaning of s 4 of the Child Welfare Act 1939 (NSW). In those circumstances the Children’s Court could deal with the offences summarily. The applicant submitted that no consideration appeared to have been given to the fact that, as a juvenile offender under that Act, the applicant may not have been fully aware of the consequences of his actions and that less weight could be given to considerations of punishment and deterrence with more weight being given to rehabilitation.

37. The applicant submitted that, although her Honour referred to the applicant as being young at the time of the offending, her Honour did not properly consider his relative youthfulness, and that such failure led her Honour erroneously to find the level of objective seriousness to be at or just above mid-range.

38. The applicant submitted that the offences may have been dealt with pursuant to the provisions of the Child Welfare Act if he was prosecuted at the time, and a sentence in accordance with s 83(2)(d) of that Act may have been imposed. The applicant submitted that, as in TC v R [2016] NSWCCA 3, the sentencing judge failed to consider that legislation.

39. The Crown submitted that her Honour plainly had regard to the applicant's age at the time of the offending because she mentioned it on a number of occasions. The Crown submitted that the gravamen of the applicant's complaint appeared to be that her Honour did not give sufficient weight to his age when assessing the objective seriousness of the offending. The Crown submitted that the weight to be accorded to relevant factors is a matter for the sentencing judge and it is only an error in the exercise of the sentencing discretion if it is manifestly unreasonable.

40. The Crown submitted that the offences were neither impulsive nor opportunistic. They occurred in the context of the ongoing sexual abuse of the victim by the applicant which only ended when the two ceased to have any contact with one another.

41. The Crown submitted that the failure by a sentencing judge to mention that a matter could have been dealt with in the Local Court or a Children’s Court cannot of itself constitute error.

42. The Crown submitted that there was no evidence before the Court that the applicant may not have been fully aware of the consequences of his actions, and in that way the sentencing judge was not in error in failing to make such a finding.

Determination

43. Her Honour referred in a number of places in her ROS to the age of the applicant at the time of the offending. She first estimated his age when dealing with each of the sequences of offences.

44. When dealing with objective seriousness her Honour said:

I accept the offender was a young man at the time but the victim was considerably younger and was vulnerable because of his youth. I find the offences are at or just above mid-range.

45. When dealing with subjective matters her Honour said:

There is little evidence on which to base any subjective findings other than that the offender was young when he committed these offences and I accept that is a significant matter in this sentencing exercise.

46. Again, at the time of indicating the indicative sentence for each offence, her Honour identified the applicant’s age at the time of the commission of each offence.

47. Although the question of the Child Welfare Act and the ability to deal with the proceedings in that way at around the time of the offending forms part of the applicant’s complaint in relation to this ground, nothing was said about that matter in either the written or oral submissions on behalf of the applicant at the sentence hearing. Indeed, the only submission made in relation to the age of the applicant at the time of the offending was a concession by the applicant’s counsel that the offences were only below the mid-range when the age of the applicant was taken into account.

48. I do not consider that the sentencing judge was in error in not making reference to the Child Welfare Act when the matter was not drawn to her attention: Zreika v R [2012] NSWCCA 44 at [78]; R v Jammeh [2004] NSWCCA 327 at [28]; R v Pickett [2004] NSWCCA 389 at [32]. In that way, the decision in TC is distinguishable because the sentencing judge in that case was referred to the subsequent Children (Criminal Proceedings) Act 1987 (NSW), but failed to mention either that Act or the Child Welfare Act which governed proceedings at the time of the offending in that case, as in the present.

49. There was no evidence that the applicant may not have been fully aware of the consequences of his actions. The judge did not fall into error in failing to reach that view. Indeed, some of the offences were not opportunistic but involved a degree of planning.

50. Even if it was now appropriate to give less weight to considerations of punishment and deterrence, and more weight to rehabilitation, because the applicant was a juvenile offender at the time, any question of weight is a matter for the sentencing judge. In any event, her Honour expressly referred to the subsequently committed offences as being relevant to the issue of rehabilitation, and her Honour found that the applicant had moved some way to rehabilitation.

46. In relation to objective seriousness, her Honour said:

These were all very serious offences. I accept the offender was a young man at the time but the victim was considerably younger and was vulnerable because of his youth. I find the offences are at or just above the mid-range.

52. A little later in her ROS, her Honour said this:

Some offences were opportunistic and brief but the evidence suggests that the offender sometimes took steps to isolate the victim and enable the offender to have access to him and perform the acts which make up the offences.

The offences occurred over a significant period of time and the nature of offending involved different forms of activity.

53. A number of things should be said about these remarks. First, there were four offences, only two of which (Sequences 5 and 7) bore any similarity to each other. Her Honour appears to acknowledge that fact by saying that they involved “different forms of activity”. Secondly, as her Honour again acknowledges, some of the offences were opportunistic and some involved a greater degree of planning. The difference between opportunistic offences and offences which were planned would ordinarily impact on the assessment of objective seriousness.

54. Thirdly, although her Honour acknowledges that the applicant was a “young man”, the time periods in the agreed facts were sufficiently vague that it could not have been found beyond reasonable doubt that the applicant had turned 18 at the time of the offending. This meant that any assessment of objective seriousness of an offence committed by him would reflect his status as not being an adult. There were fewer than six years in age between the victim and the applicant where neither was an adult. Finally, when her Honour refers to the offending taking place “over a significant period of time”, it is not clear if she was referring to the nine year period referred to earlier in her ROS or simply to the period of the four offences.

55. Given the distinctions her Honour made between circumstances of and surrounding the individual offences it was not appropriate for the assessment of objective seriousness to have been done on a collective basis. Moreover, as the offence of indecent assault on a male covered a wide range of activity, some of which was evident in the acts carried out by the applicant in the present case, one might reasonably have expected some differentiation in the assessment of objective seriousness of the offences charged based on what actually occurred. It may be accepted, however, that her Honour was not given any assistance by those appearing for both the Crown and the applicant at the sentence proceedings. Both counsel were content to approach the matter on a collective basis. Nevertheless, a necessary part of the sentencing exercise is the determination by the sentencing judge of the objective criminality or seriousness of each offence, taking into account the individual aspects of each such offence.

56. In my opinion, the assessment by the sentencing judge of objective seriousness on a collective basis was an error. I would, therefore, uphold this ground.

Ground 2: Her Honour erred in finding that the offending resulted in substantial injury.

57. The victim of the offending, XY, read a Victim Impact Statement at the sentence hearing which detailed the difficulties he had experienced since he was a child. Those difficulties included learning difficulties, relationship problems, lack of self-esteem and feelings of guilt and shame, and mental health issues. Significantly, he had never confided in anyone about what had taken place until his initial interview with a psychologist in 2017.

58. A report from the psychologist, Mr Rogers, was tendered at the sentence hearing. XY had been referred to Mr Rogers by his general practitioner after XY reported experiencing multiple traumatic events whilst volunteering for the Rural Fire Service (RFS). Mr Rogers diagnosed him as suffering from PTSD and Major Depressive Disorder with anxiety. XY told Mr Rogers about recently seeing the applicant on Facebook, and recognised him as the person who had sexually abused him as a child. He said it triggered an enormous amount of emotional distress. Mr Rogers said that XY was experiencing very high levels of dissociation, and said that the childhood trauma was behind those high levels.

59. In her ROS, the sentencing judge said this about the Victim Impact Statement:

This has been summarised and the Court acknowledges that this offending would have long-lasting effects on the victim. The Court also accepts that the victim has suffered mentally as a result of this offending, as set out in the report of Dr (sic) Rogers. It is true that his evidence is in some ways untested but it is in accordance with what is now known to be the result of offending of this kind.

When her Honour came to consider the aggravating factors, she said:

I accept that the damage caused by the offences was substantial.

60. The applicant submitted that, because the sentencing judge had found that the harm suffered was in accordance with what is known to be the result of offending of the kind charged, it was not open to her Honour to find that the harm rose to the level of constituting an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

61. It may be accepted that there is an uneasy tension between what her Honour said in the first passage set out at [59] above and her finding that the damage was substantial. However, it is likely, as the Crown submitted, that when the sentencing judge referred to “it” being “in accordance with what is now known”, her Honour was referring to the untested evidence from Mr Rogers’ report rather than the damage or harm itself.

62. The question then remains whether it was open to her Honour to find that the damage was substantial. The evidence of Mr Rogers was that the PTSD and the Major Depressive Disorder were present before XY experienced problems with the RFS, and that the PTSD derived from his childhood trauma of sexual abuse. Mr Rogers described it as Complex-PTSD, and said it had been pervasive. In my opinion, on the basis of that evidence, it was open to her Honour to find that the emotional harm or damage was substantial, in that it was greater than ordinarily attaches to an offence of this kind: R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [64].

63. It is not without significance that offences which have, in more recent times, superseded s 81 of the Crimes Act 1900 (NSW), carry far greater penalties which, at least partly, take into account greater damage by reason of the age of the child when the offence is committed: Tuala at [64]. The maximum penalty for an offence under s 81 is 5 years’ imprisonment which might be thought not to take much account of damage or emotional harm which would be suffered by the victim of such an offence. Part of the reason for the heavier penalties is, obviously, that there is now much greater knowledge of the long-term effects of sexual abuse of a child or young person than was known when s 81 was enacted and remained in the Crimes Act. That may mean that it will be easier to find that damage or emotional harm is substantial where historical offences are dealt with under earlier legislation with much lower maximum penalties. Such an approach would not be inconsistent with the rationale behind s 25AA of the Sentencing Act.

64. I would reject this ground of appeal.

Ground 3:    The aggregate sentence imposed was manifestly excessive.

65. Since error has been found in relation to ground 1, it is not necessary to consider whether the sentence is manifestly excessive. Something should be said, however, about the sentence imposed by the sentencing judge so that the re-sentence can be put into context. Although the appeal only concerns the aggregate sentence, the indicative sentences can indicate error. Here, her Honour found that the sentences were at or just above the mid-range. Despite that finding, her Honour’s notional starting point for three of the sentences was four years’ imprisonment when the maximum penalty was five years. That bespeaks error.

66. The parties’ submissions in relation to manifest excess will be considered as part of the re-sentencing exercise.

Re-sentence

Submissions

67. The applicant pointed to the degree of notional accumulation involved in the aggregate sentence in circumstances where there were only four offences to be considered which all involved the same victim. He also pointed to the fact that the indicative sentences added up to 11 years and seven months where two of the offences (the attempted buggery and the subsequent indecent assault) formed part of the same event. The applicant submitted that, in the circumstances, the degree of notional accumulation was not open to the sentencing judge, particularly when the applicant was being sentenced as a juvenile.

68. The Crown pointed to the principles governing the assessment of whether a sentence is manifestly excessive set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] and Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191 at [114]. The Crown submitted that, notwithstanding the applicant’s youth, the offences were serious. Significant matters were the isolation of the victim by the applicant, the threats that the victim would go to gaol if he told anyone, and the seriousness of the acts themselves.

69. The Crown submitted that the sentencing judge carefully considered the issue of totality, noting that the offences were discrete criminal acts committed on separate occasions, and that the evidence did not establish that the applicant’s youth was a factor which materially contributed to the offending.

Determination

70. The circumstances of the offending and matters concerned with the subjective features of the applicant are set out earlier in the judgment.

71. I have noted that the applicant did not give evidence at the sentence hearing, not the least reason for which may have been because he said he had no memory of the offending. The caution that must be employed in assessing what appears in psychological and psychiatric reports on behalf of an applicant in such circumstances is well known. It is not without significance, however, that Dr Adam Martin is an experienced and respected forensic psychiatrist. Some weight must be given to his conclusions which derived partly from his extensive experience being applied to what is known about the applicant. The applicant’s criminal record, for example, is obviously a relevant consideration for the likely truth of some of the matters reported by the applicant to Dr Martin, including anti-social behaviour and sexual offending

72. The evidence establishes, on balance, that at the time of the offending it is likely that the applicant was already experiencing adverse childhood experiences which had distorted his sexual attitudes and caused him to engage in antisocial behaviour. Further, the offences charged commenced when he was 16 years of age. Those matters are significant considerations when considering the objective seriousness of the offending.

73. I consider that the objective seriousness of the first offence in time (Sequence 5) is below the mid-range. The offence appears opportunistic and with little planning involved.

74. The next offences (Sequences 7 and 8), occurred just after the applicant turned 17 years. The offending also appears largely opportunistic with little planning. I would assess the objective seriousness of Sequence 7 as just below the mid-range.

75. Sequences 1 and 4 occurred together, the following year. The offences together involved a measure of planning. Nevertheless, the offence of attempted buggery ceased as soon as the victim asked the applicant to stop. Although the applicant then proceeded to place his penis between the victim’s legs and rubbed it until he ejaculated, that was a less serious form of an offence which, as I have said, embraced a large range of activities. Despite the planning, I would assess the objective seriousness of the attempted buggery at just below the mid-range and of the offence of indecent assault as in the low range.

76. The aggravating factors are that the victim was vulnerable because of his age, and the fact that the damage to the victim was substantial.

77. I agree with the sentencing judge’s conclusions in relation to the discount to be accorded for the early plea, in relation to remorse and the likelihood of rehabilitation and re-offending. I also agree that a finding of special circumstances should be made to enable the applicant to address the trauma in his childhood and youth, and to have an extended period for supervision in the community.

78. I agree that there is a need for both specific and general deterrence, but the importance of general deterrence is reduced by the age and the circumstances of the applicant at the time of the offending, and the need for specific deterrence is reduced by reason of the applicant not having committed any sexual offences since 2000.

79. Some consideration must be given to s 83 of the Child Welfare Act because the applicant was a young person under that Act at the time of the offending. As was explained by Gleeson JA in TC at [38]-[40], the Children’s Court had jurisdiction to hear and determine indictable offences such as the present offences summarily. Section 83(2) then set out the powers of the Children’s Court in that regard. Section 83(2) provided:

(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.

(emphasis added)

80. Mr McLachlan of counsel for the applicant accepted that it could not be said, one way or the other, whether it is likely the present offending would have been dealt with under the Child Welfare Act, but that the possibility that he would have been dealt with in that way must be considered (see also TC at [79]-[85] in that regard). He submitted, and I accept, that s 25AA of the Sentencing Act is not addressed to statutory regimes of sentencing but only to patterns or standards derived from sentences imposed by judges.

81. The importance of s 83 for present purposes is that it emphasises that the present offending was committed by someone who was a young person (as defined in the Child Welfare Act), even though he was not sentenced until 45 years later in circumstances where, by the time of his sentencing, he had committed a number of subsequent offences, including a number of sexual offences.

82. I note that the maximum penalty for each of the offences was five years’ imprisonment. I propose the following indicative sentences:

Sequence 5:    One year six months;

Sequence 7, taking into account sequence 8 on the Form 1:    One year eight months;

Sequence 1:    One year eight months;

Sequence 4, taking into account sequence 2 on the Form 1:    nine months.

83. In my opinion an aggregate sentence of imprisonment of three years should be imposed commencing 31 July 2019 and expiring 30 July 2022 with a non-parole period of two years expiring 30 July 2021.

Conclusion

84. I propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed by Judge Norton SC in the District Court on 1 August 2019. In lieu, sentence the appellant to an aggregate sentence of imprisonment for three years commencing 31 July 2019 and expiring 30 July 2022 with a non-parole period of two years expiring 30 July 2021.

85. N ADAMS J:      I agree with Davies J.    

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Decision last updated: 17 July 2020