Young (a Pseudonym) v R

[2022] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Young (a pseudonym) v R [2022] NSWCCA 111

Hearing dates:

27 May 2022

Date of orders:

3 June 2022

Decision date:

03 June 2022

Before:

Bell CJ at [1];
Button J at [2];
N Adams J at [3].

Decision:

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The aggregate sentence imposed by Judge Haesler SC on 20 July 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 2 years’ of imprisonment to commence on 4 February 2021 and expire on 3 February 2023 with an aggregate non-parole period of 16 months to expire on 3 June 2022.

Catchwords:

SENTENCING – appeal against sentence – manifest excess – difficult sentencing exercise – sexual offences committed on child when offender was also a child – Bugmy background – delay of 16-17 years between offending and charges laid – offender lost opportunity both to be dealt with as a child and to be dealt with prior to amendments to sentencing regime in 2018 – threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 – objective seriousness of offending required custodial sentence – sentence did not reflect delay, age of applicant at time of offences and overwhelming subjective case – leave to appeal granted – appeal allowed

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 4, 16, 17

Crimes Act1900 (NSW), ss 66C(1), 66D

Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(1), 32, 44(2B), 53A, 67(1)(b)

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

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act2017 (NSW)

Cases Cited:

AB v R [2022] NSWCCA 3

BM v R [2019] NSWCCA 223

Brierley v R [2022] NSWCCA 26

Bugmy v The Queen (2103) 249 CLR 571; [2013] HCA 37

Conte v R [2018] NSWCCA 209

Griffin v R [2018] NSWCCA 259

JA v R [2021] NSWCC 10

Kliendienst v R [2020] NSWCCA 98

KT v R [2008] NSWCCA

MPB v R [2013] NSWCCA 213; 234 A Crim R 576

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

Paul Campbell v R [2018] NSWCCA 87

R v AA [2017] NSWCCA 84

R v Nelson [2016] NSWCCA 130

R v Young (a pseudonym) [2021] NSWDC 702

SW v R [2019] NSWCCA 194

Zreika v R [2012] NSWCCA 44

Texts Cited:

New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard),

6 June 2018

Category:

Principal judgment

Parties:

Steven Young (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr K Averre (Applicant)
Ms E Nicholson (Respondent)

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

File Number(s):

2020/222921

Publication restriction:

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

Pursuant to s 578A of the Crimes Act 1900 (NSW) publication of any matter which could identify victim is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Young (a pseudonym) [2021] NSWDC 702

Date of Decision:

20 July 2021

Before:

Haesler DCJ

File Number(s):

2020/00222921

Judgment

1. BELL CJ: I agree with N Adams J.

2. BUTTON J: I agree with N Adams J that, in the exceptional circumstances of this matter, the Court should intervene.

3. N ADAMS J: This application for leave to appeal against sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) highlights the difficulties which can arise when a court is required to sentence an offender as an adult for child sexual assault offences committed many years earlier when the offender was also a child.

4. The applicant is now 34 years old. On 30 July 2020, he was charged with historical child sexual assault offences committed on his niece in 2003-2004 when she was aged 9-11 years and he was aged 14-16 years and they were living together in the family home. He pleaded guilty in the Local Court to two offences of sexual intercourse with a person aged between 10 and 16 years contrary to s 66C(1) of the Crimes Act1900 (NSW) and one offence of attempted sexual intercourse with a person aged between 10 and 16 years contrary to s 66D of the Crimes Act. The applicable maximum penalties (at the time) were 8 years imprisonment in respect of both offences. There were three further s 66C(1) offences taken into account on Form 1’s pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

5. The offences upon which the applicant was sentenced took place in the context of a family home where physical and sexual violence was common. Both the victim and the applicant were subjected to sexual abuse by the family patriarch, who was the applicant’s father and the victim’s grandfather. All family members were subjected to physical abuse. The applicant’s mother was subjected to such violence that she is now disabled and unable to walk without a walking stick. The applicant’s half-sister and half-brother both committed suicide. When the applicant finally stood up to his father, at about age 15-16, he was ordered out of the family home and became homeless. As an adult, he has struggled with depression and anxiety and has self-medicated with illicit drugs including methamphetamine. In order to support that addiction, he has at times committed property offences. At other times, he has been employed as a scaffolder. He has been in and out of custody since 2009 but has never committed any sexual offences.

6. The delay of 16-17 years before the applicant was dealt with for these offences means that he stood to be sentenced as an adult. Once he turned 21, the opportunity for him to be sentenced in the Children’s Court was lost: s 16 of the Children (Criminal Proceedings) Act 1987 (NSW).

7. The applicant’s proceedings on sentence in the District Court were conducted on 20 July 2021 before Judge Haesler SC and he was sentenced that day. His Honour imposed an aggregate sentence pursuant to s 53A of the Sentencing Act of 3 years’ imprisonment with a non-parole period of 18 months to commence on 9 February 2021 and expire on 8 February 2024. The applicant will be eligible for release on 8 August 2022, just over ten and a half weeks from the date of the hearing of this appeal on 27 May 2022. The sentencing judge provided indicative sentences of 1 year and 10 months’ imprisonment for each of the counts under s 66C(1) and an indicative sentence of 1 year and 6 months’ imprisonment for the count under s 66D. A discount of 25% was applied to the indicative sentences on account of the early pleas of guilty.

8. The sole ground of appeal is that the aggregate sentence imposed is manifestly excessive.

Factual background

9. The applicant was sentenced on the basis of agreed facts which can be summarised as follows.

10. The applicant’s parents are Brian Young and Susan Young [1] . As at 1996, the applicant lived with his parents and his half-brother Matthew in Dapto. His father had previously been married to another woman with whom he had a daughter Linda Baker. Ms Baker had two daughters, one of whom was the victim, Donna Young. Ms Baker suffered from drug and alcohol addiction and in 1994 her two daughters were placed in the care of what was then DOCS. They were placed in a number of foster homes until they went to live with their grandfather in 1996. The victim was four years old at that time. Her mother (the applicant’s half-sister) committed suicide in custody in 1999 when she was in Year 1 at school. The victim did not know her father.

    1. The family members have been given pseudonyms.

11. The agreed facts disclose that the victim witnessed her grandfather physically and mentally abusing the applicant, his stepbrother, their mother and her sister. She herself was “flogged” by her grandfather as well as being sexually assaulted by him. When she went to police in 2018 to disclose the offending by her grandfather, she disclosed that she had been sexually assaulted by the applicant as well.

12. The offences committed by the applicant occurred when the victim was in Years 4 or 5 at school (in about 2003-2004). He starting to touch her and force her to touch him. She did not understand what was happening. Sometime after that, she was lying on a bed when the applicant inserted some yellow hose rubber into her vagina (Form 1) and asked her if she enjoyed it. She replied that she did enjoy it as she thought it was “normal” (presumably due to the assaults being committed on her by her grandfather). The applicant masturbated while he did this. He then put his penis into her mouth, and she sucked his penis until he ejaculated (Seq 12).

13. On the second occasion, the victim was lying on a bed when the applicant again inserted some yellow hose rubber into her vagina (Form 1) and he inserted his fingers into her vagina to “stretch” it (Seq 14). He then tried to insert his penis into her vagina but she screamed and squirmed, so he moved off her and apologised. He put his penis into her mouth instead and she sucked it (Form 1).

14. As stated above, when the applicant was 15 or 16 years old, he finally stood up to his father’s abuse and was evicted from the home. He became homeless.

15. The victim moved away from home in 2008 when she turned 16 and lived with her maternal grandmother. She disclosed the offences to her, but the matter was not taken further at that time. Ten years later, she disclosed the offences to her sister. She made her statement to police in Queensland on 4 December 2018.

16. The agreed facts also state that during the applicant’s recorded interview with police on 30 July 2020 he denied the offences but became “very distressed when speaking about his father”. He pleaded guilty shortly thereafter.

The proceedings on sentence

17. A Victim Impact Statement (“VIS”) was tendered which outlined the impact on the victim of the offences committed both by her grandfather and the applicant.

18. A criminal history was tendered which showed no offences in the Children’s Court but offending which began in 2006 for offences including driving whilst disqualified, aggravated break, enter and steal, breaching apprehended violence orders, assaults, intimidation, affray, possession of prohibited drugs and destroying property. The applicant was imprisoned for periods in 2009, 2010, 2011, 2012 and 2013 but remained in the community until 2017 when he was imprisoned for 6 months. After his release on 13 December 2017, he remained in the community until 11 August 2020. He has been in custody since that time. He was employed during that period but lost his employment due to the impact of Covid-19.

19. On 2 February 2021, the applicant was sentenced in the Wollongong Local Court for driving whilst disqualified, assault occasioning actual bodily harm and being armed with intent to commit an indictable offence. An aggregate sentence of 20 months to commence on 11 August 2020 and expire on 10 April 2022 was imposed with a non-parole period of 8 months to expire on 10 April 2021. Special circumstances were found including the need for drug and alcohol counselling, his mental health issues, and the danger of institutionalisation.

20. The Psychosocial Assessment Report of Rebecca Assaf dated December 2020, which was prepared for his Local Court hearing, was tendered before Judge Haesler. It did not address the sexual offending the subject of these charges, although it was noted therein that the applicant became upset when talking about his father. Her report disclosed the following:

“When asked if he had been sexually abused, [the applicant] struggled to disclose that his father had sexually abused him on one occasion and said, ‘I spent my whole life trying to forget shit like that’. [The applicant] became very distressed during the interview and agreed to revisit the subject later. [The applicant] said he was in Year 4 when his father sexually abused him whilst he was at home. When asked what happened [the applicant] said his father made him perform fellatio……. As a child, [the applicant] was afraid to disclose what had happened to him. He said, ‘I just wanted to pretend it didn’t happen. If I didn’t say anything and stayed away, then it never happened.’ [The applicant] said since this assault he has been unable to sleep restfully. He has a recurring nightmare that he is trying to run away from something however he can’t move his body, and he cannot see what it is that is after him. [He] said he wakes up three to four times per night. He said he also struggles to remember many things from his past.” (Emphasis in original.)

21. The report contained significant detail regarding the ongoing physical emotional and psychological abuse from his father. That abuse included regular beatings with his belt and other random objects. The children were forced to shower after their beatings and were locked in their rooms. When his mother was being beaten the children would be locked in their rooms, but they could hear through the walls the noises of her being pushed into walls, the floor and furniture.

22. The applicant’s mother spoke to the author of the report and confirmed his account. She described how on one occasion the applicant’s father repeatedly hit him over the head with a cattle prod made of fibreglass because he did not like his haircut. He then painted the applicant’s head with shoe polish to hide the areas of his hair that had been ripped from his scalp.

23. It was common ground that the principles in Bugmy v The Queen (2103) 249 CLR 571; [2013] HCA 37 (“Bugmy”) applied in this matter and that the applicant was to be sentenced on the basis that he was a child when the offences were committed.

24. In his written submissions, it was conceded by counsel who appeared for the applicant in the District Court that the offending was “sufficiently serious” such that consideration must be given to the imposition of a period of imprisonment. It was noted that whereas the Children’s Court could have considered the availability of suspending a control order, no such equivalent arises in the adult jurisdiction. Nor could an intensive correction order (“ICO”) be imposed (s 67(1)(b) of the Sentencing Act). In oral submissions it was again noted that the court had “very little option” but to impose a custodial sentence as no “middle ground options” were available. It was then submitted that the head sentence ought to be “significantly less on account of his age”. It was also submitted that a significant finding of special circumstances should be made.

The Remarks on Sentence

25. The sentencing remarks have been published online: R v Young (a pseudonym) [2021] NSWDC 702. In those circumstances, I do not propose to summarise them in any detail, but I will refer to passages of them when relevant to submissions put on behalf of both the applicant and the Crown in this Court.

Applicant’s submissions

26. It was contended that it was an error to find that the threshold in s 5 of the Sentencing Act was crossed in this matter given the applicant’s dysfunctional upbringing, his youth, the purposes of sentencing, the delay, and comparable cases. I will refer to those comparable cases below.

27. Reliance was also placed on the Judicial Commission Children’s Court statistics from July 2017 to June 2021 which show that of the 54 cases of juveniles dealt with for an offence under s 66C(1) only one third resulted in full time custody at a time when the maximum penalty is now 16 years (as opposed to 8 years when these offences were committed).

28. It was noted that the indicative sentences for the two s 66C(1) offences prior to the application of the discount for the pleas of guilty were 30 months’ imprisonment. It was also submitted that there appears to have been a high degree of notional accumulation: Kliendienst v R [2020] NSWCCA 98 at [77].

Crown submissions

29. The Crown relied upon the fact that the sentencing judge was clearly aware of the matters now raised by the applicant as they are all referred to in the careful remarks on sentence.

30. It was submitted that the purposes of sentencing required a custodial sentence and that the comparable cases (referred to below) can all be distinguished.

31. It was submitted that the applicant was being sentenced for three serious offences which all carried a maximum penalty of 8 years at the time and that the offences occurred over two separate incidents on different dates. They were not isolated events. Although the need for general and specific deterrence was reduced given the applicant’s background, his youth at the time of the offending and the absence of any further sexual offending, there was still weight to be given to retribution, punishment, and the recognition of harm to the victim.

32. Reliance was placed on the decision in R v AA [2017] NSWCCA 84 at [64]-[66].

Consideration

33. The applicant contends that his aggregate sentence is manifestly excessive. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) provided the following summary of the relevant principles to apply when considering a ground of appeal asserting manifest excess at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary 1to have regard to the following principles derived from House v The King 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 (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.”

34. It is not contended that the sentencing judge made any patent error. The applicant accepted that his Honour addressed all the following relevant matters, including delay.

35. The factor of delay was significant in this matter. Not only was the fact of delay relevant, so too was the extent of it.

36. If the applicant had been charged soon after the offences were committed, he would have been dealt with in the Children’s Court; none of the offences are serious children’s indictable offences within the meaning of s 17 of Children (Criminal Proceedings) Act, as defined in s 4 of that Act. His Honour acknowledged this fact at [20] when he observed:

“Had these matters come to light in 2002 or 2003, as they not being serious, indictable children’s offences, it is possible, and in my view, probable, that they would have been dealt with in the Children’s Court. Given the current age of the offender when these matters commenced, I must sentence him as an adult recognising, however, that these offences occurred when he was a child.”

37. The Crown accepted in this Court that although the applicant was not to be sentenced as if he were in the Children’s Court, that lost opportunity was an ameliorating factor on sentence.

38. The fact that the applicant could no longer be sentenced in the Children’s Court and had to be sentenced as an adult in the District Court meant that the available sentencing options were limited and, significantly, rehabilitation was no longer the primary sentencing principle. As McClellan CJ at CL (with whom Hall and Price JJ agreed) observed in KT v R [2008] NSWCCA 51 at [22]:

“The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation.”

39. Similarly, Hamill J, with whom Bathurst CJ and Schmidt J agreed, observed the following in Paul Campbell v R [2018] NSWCCA 87 at [31]-[32] (footnotes omitted):

“In MS2 & Ors v Regina, Adams J identified two of the reasons that the youthfulness of an offender is considered to be a significant factor in sentencing. The first is the ‘substantial public interest in the rehabilitation of young offenders’. The second is ‘that immaturity is relevant to culpability or criminality’ because ‘children do not have adult value judgments, adult experience, adult appreciation of consequences’.

When children are to be sentenced, greater weight is given to rehabilitation and less weight to deterrence: see, for example: R v GDP and KT v R. However, the closer a child is to adulthood and the more serious the offending, the more likely that deterrence and retribution will be significant factors.”

40. In sentencing the applicant, the sentencing judge observed the following in relation to the need for general deterrence at [14]-[15]:

“In most such cases principles of general deterrence are properly invoked. Here, given delay and the fact that there were no further sexual offences on his record, there is no need to take into account in a significant way specific deterrence.

So far as general deterrence is concerned, it should be obvious to any adult and thinking person that to sexually abuse a child is grossly wrong and will have continuing impact on that child. One important fundamental of our law and legal system is to protect children from abuse.  Matters such as this, no matter when or where committed, require adequate and appropriate punishment designed to have an element of retribution attached to it. Retribution which recognises the harm done by such offences to individuals in the community and is meant to vindicate the dignity of a victim of a sexual offence and recognise in the community’s eyes how wrong such behaviour is. Only custodial sentences could properly reflect those purposes of sentencing.”

41. His Honour found that specific deterrence was of little relevance in this case as the applicant had not committed any subsequent sexual offences. Although his Honour found that general deterrence was of less significance, that was not because of youth but because of the principles in Bugmy.

42. His Honour acknowledged the impact of the offending on the victim (as set out in her VIS). They included depression and anxiety, suicide attempts, social anxiety, problems sleeping, use of illegal substances to help her cope, and struggles with eating and maintaining a healthy weight. His Honour then stated the following at [28]-[29]:

“The offender has a similar history. This is not a case of making false equivalences, it is simply a matter of recognising that he, as a result of his upbringing suffers significant trauma, and has been profoundly affected by his childhood. That background has impacted on every stage of his life.  It is highlighted in this case by the number of people associated with this family who have taken their own lives, and the evidence of the offender suicidality.  It is not at all surprising that he and his victim both turned to the use of illicit drugs to dull the pain and help them cope with their past.

The offender’s history of significant social disadvantage is demonstrated in the evidence here. It must and should be taken into account. He has a number of psychological problems; which would also mean that he is a poor candidate for a deterrent sentence.  He has demonstrated, as I have said, some capacity to lead a normal community life but there is a regular cycle of self-destruction and self-sabotage; which Ms Assaf indicates has its genesis in his childhood.”

43. His Honour was there referring to the principles derived from Bugmy in which the High Court considered the relevance of an offender’s deprived background to sentencing. As the Court observed at [44], “the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending” and “it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision”. Although his Honour noted that the applicant’s deprived childhood has led to a “cycle of self-destruction and self-sabotage”, it seems to me that it was also a particularly relevant factor in this case given the circumstances in which the applicant was raised. His criminal offending, which started at the age of fourteen, was influenced by his father’s conduct. This is a classic Bugmy case where the “sins of the father” have had a profound impact not only on his dysfunction in later life but also his offending when he was still a child.

44. Another factor flowing from the delay, as recognised by his Honour at [25], was that the possibility that the cycle of abuse that both the applicant and the victim were in could have been addressed earlier was lost. His Honour described it this way:

“Had this matter come to light earlier, both the complainant and the offender would have had their history of childhood trauma addressed much earlier.  Here, a history of trauma has led to a cycle, so far as the offender is concerned, of crime and gaol.  In more recent years his time in the community has been longer and he has demonstrated that for periods, particularly where he is in work and given strong family support, he can be relatively crime free.”

45. A further factor which arose from the fact that the applicant was not sentenced in the Children’s Court was that he did not have a criminal history at the time of the offences. This was a mitigating factor. But he had a criminal history by the time of sentence. Although it is to be accepted that the applicant was unable to demonstrate progress towards rehabilitation, he was also denied the opportunity to come before the court as a person of good character, which he would have had he been sentenced in the Children’s Court.

46. These factors all flow from the fact that the applicant was not sentenced in the Children’s Court. But it is not only the fact of the delay until he turned 21 that is relevant. The extent of the delay since he turned 21 has also had a significant impact on the sentencing options open to the sentencing judge. Even if the complaint had been made after the applicant turned 21 (and thus could not be dealt with in the Children’s Court) but earlier than 2018, the applicant would have been able to be sentenced more leniently based on at least two factors.

47. First, at the time of the applicant’s sentencing s 25AA(1) of the Sentencing Act provided that he was to be sentenced “in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence”. Prior to the commencement of s 25AA on 31 August 2018, this Court followed the principles derived from MPB v R [2013] NSWCCA 213; (2013) 234 A Crim R 576 at [12] which required that the Court take into account the law as it applied at the time of the offending and not current sentencing law. In the Second Reading Speech to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) in the Legislative Assembly on 6 June 2018 which enacted s 25AA, the Attorney General described the purpose of the amendment in the Second Reading Speech in this way:

“The new s [25AA] inserted into the Act implements one of the Royal Commission’s key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetrates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet current community expectations, to the extent possible within the upper limit of the maximum penalty from the time of the offence.” (Legislative Assembly Hansard, 6 June 2018)

48. The enactment of s 25AA was to avoid lower sentences being imposed. Had complaint been made prior to 31 August 2018 the applicant would have had the benefit of being sentenced on the basis of sentencing principles at the time. Although it is to be accepted that there was already significant awareness of the impact of child sexual assault at the time of the offending in this matter, the offending behaviour commenced prior to the enactment of standard non-parole periods (“SNPP”) in NSW, which is but one indicator of how sentencing for child sexual assault offences has changed since the time of the offending in this matter. By way of illustration, I note that it was not until 2015 that the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) introduced a standard non-parole period of 7 years in respect on an offence under s 66C(1) of the Crimes Act (sexual intercourse with a child aged between 10-14 years).

49. Secondly, on 24 September 2018, the statutory sentencing regime in NSW changed: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act2017 (NSW). Suspended sentences were no longer an alternative for all offenders and an ICO was no longer available for sexual offenders: s 67(1)(b) of the Sentencing Act. Had the applicant been sentenced at any time after he turned 21 but before 24 September 2018, it would have been open to the sentencing judge to have found that the s 5 threshold had been crossed but to have imposed either a suspended sentence or an ICO to assist in his rehabilitation.

50. It is common for there to be delay in children complaining of sexual abuse. Often a reason for the delay is that the perpetrator of the abuse has threatened the child in some way that there will be negative consequences should the child complain of the sexual assaults. There is no material before the Court as to whether the victim’s grandfather made such threats but there is certainly no evidence before the Court that the applicant did. This is no small matter. It is one thing for an offender, such as this applicant, to rely upon delay as a mitigating factor but it is another for an offender whose threats prevented a young victim from coming forward earlier to then seek to rely upon the subsequent delay in mitigation.

51. It is common ground in this matter that the delay, the applicant’s age at the time of the offending, and the context in which the offences occurred meant that his Honour was faced with an extremely difficult sentencing exercise.

52. The applicant contends that the sentencing judge erred in finding that the s 5 threshold had been crossed. In that regard, in addition to his Honour’s finding at [15] (extracted above at [40]), his Honour later stated at [35]:

“There must be custodial sentences indicated for each three offences to properly recognise the harm done to the victim.  Mitigating factors will be given appropriate weight but there must be a penalty that has some proportionality to the gravity of each of the offences to vindicate the dignity of the victim and to express the community’s disapproval of that offending.  There can be no equivalence here, however, between a sentence that would be imposed upon an adult offender or even a child who did not suffer the deprivations this child did, but there must be custodial sentences imposed.”

53. Section 5 of the Sentencing Act provides that a court must not sentence an offender to imprisonment (as per sub-s (1)) “unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”. Sub-section (2) provides that if a court sentences an offender to imprisonment for a period of 6 months or less it must indicate to the offender its reasons for so doing, and specifically why it was decided that no penalty other than imprisonment was appropriate.

54. Although it was not expressly conceded that the s 5 threshold had been crossed, nor was it ever suggested to the sentencing judge that it was not. I have extracted the submissions put to his Honour on this question above at [26]-[28]. This is a Court of error, and an applicant is bound by the manner in which the proceedings on sentence were conducted below: Zreika v R [2012] NSWCCA 44 at [81]-[82]. Despite this, as was acknowledged in Zreika v R at [82], this Court will entertain a ground of appeal contending for failure to have regard to a mitigating factor that was not specifically addressed at sentence if the overlooked factor was one that operated unequivocally in the applicant’s favour: see also Griffin v R [2018] NSWCCA 259 at [36].

55. But this is not a case where a mitigating factor was overlooked. The question of the s 5 threshold was raised, and it was accepted that it would be difficult for the judge to find that it had not been crossed, especially since that left a community corrections order as the only sentencing option.

56. The applicant was being sentenced for three serious offences which all carried a maximum penalty of 8 years at the time. The offences occurred over two separate incidents on different dates over a two-year period. They were not isolated events. The victim was at younger end of the range captured by the offences. I have considered the applicant’s submissions, but I am not satisfied that error is disclosed in his Honour’s finding that the s 5 threshold was crossed. The applicant’s subjective case was overwhelmingly strong, but the objective seriousness of the offending was such that principles of proportionality meant that some form of custodial sentence was required.

57. The next question is whether the period of full-time custody imposed was manifestly excessive. That question is to be considered in the context that had a finding that a custodial sentence was warranted been made at a hearing conducted at an earlier time, the applicant could have been liable to receive a suspended sentence or an ICO.

58. In support of this argument the applicant relied upon other decisions of this Court. One of those decisions was R v Nelson [2016] NSWCCA 130. I have not found it to be of assistance. Although the applicant in that matter had suffered physical abuse as a child from both his father and his stepfather, he was a young adult when the offences were committed and had significant cognitive disabilities and mental health problems. Despite this, I would adopt the following observation of Basten JA in that decision at [4]:

“One is entitled to have deep scepticism about the effectiveness of the criminal law as a mechanism to break such a cycle of abuse. Nevertheless, if the circumstances of the offending, objectively viewed, call for a custodial sentence, that sentence should be imposed (with such leniency as the subjective conditions of the offender require) unless to do so would be futile or would cause more harm than it might prevent.”

59. The applicant also relied upon the decisions in BM v R [2019] NSWCCA 223, AB v R [2022] NSWCCA 104 and JA v R [2021] NSWCCA 10 as helpful. They can be distinguished on a number of bases. It seems to me that this appeal turns on its own facts, although the principles derived from those decisions are of assistance.

60. I have considered the fact that the offences first occurred when the offender himself was just over the age of criminal responsibility. In this respect, his Honour noted at [21]:

“The law recognises the potential for the cognitive, emotional and/or psychological immaturity of the young people to contribute to their breach of the law.  It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person’s mid-twenties: Clarke-Jeffries v R [2019] NSWCCA 56; KT v R [2008] NSWCA 51; (2008) 182 A Crim R 571.”

61. I have also considered the context in which these offences were committed. It was a significant factor. His Honour found that the offences were serious, albeit in this context at [13]:

“The offences occurred in the context of gross dysfunction within the family, including sexual and other violence.  But each of the offences was individually serious, and although the attempt offence could not be punished as if there was full penetration, and it was brief and stopped as soon as the complainant cried out, each offences involved gross exploitation of a child’s body for personal gratification of the offender.”

62. His Honour had previously noted that:

“The genesis for the offender’s behaviour was the complete lack of sexual boundaries in the home presided over by the grandfather, Brian Young, and the violence and sexual violence he inflicted on his wife and all the children in the household.”

63. The sentencing judge’s description of the offending as being “gross exploitation” of the victim for his own personal gratification, although objectively apt, does not sit easily with his Honour’s acceptance of the context in which the offences were committed: by a 14-year-old boy from a severely deprived background who had also been sexually assaulted himself. Similarly, the judge’s description that “it is entirely unsurprising that he showed little regard for the complainant and used her to pleasure himself using objects which if used by adults would be regarded as humiliating” does not sit easily with some of his Honour’s other findings. That includes the fact that the only time the complainant expressed discomfort the applicant desisted (from that course of conduct at least) and immediately apologised. Although it is to be accepted that the victim had been desensitised to sexual abuse by her grandfather, the fact remains that there were no threats or coercion by the offender such as in other cases including SW v R [2019] NSWCCA 194.

64. Although the applicant was to be sentenced as an adult, in R v AA [2017] NSWCCA 84 this Court accepted that the age of a young offender who had committed child sexual assault offences may bear upon an assessment of the objective seriousness of his conduct. Beech-Jones J (with whom Leeming JA and R A Hulme J agreed) said at [55]:

“… However, in the earlier part of that extract his Honour expressly referred to AA’s age in the context of a determination of the objective seriousness of the offending (the “offender was either 16, 17, 18 or 19”). Nevertheless, in the context of a sexual offence some aspects of an offender’s personal circumstances may bear upon the “nature of the offending” (Muldrock at [27]). For example, the age difference between a sexual offender and their perpetrator can affect an assessment of the objective seriousness of the offending. Additionally, the age of the perpetrator can be relevant to an explanation of the context in which the offending occurred.”

65. In this case, his Honour was satisfied that the applicant’s youth impacted on his offending and played a role in diminishing his responsibility (at [22]). His Honour also noted that the applicant’s early pleas of guilty indicated an acceptance of responsibility, which is a relevant factor regarding future offending and rehabilitation.

66. Although his Honour was sensitive to the complexities involved and showed compassion in his treatment of the competing factors, I am nonetheless left with the sense that the sentence imposed does not reflect the exceptional accumulation of subjective factors I have enumerated above. I am satisfied that the sentence imposed is unreasonable and plainly unjust having regard to: the numerous ways in which delay has resulted in lost opportunities for the applicant; the fact that he was 14 years old offending commenced; the context in which the offences were committed; the Bugmy factors; and the fact that the applicant was also a victim at the time. As Payne JA and Button J (Schmidt J in dissent) observed in Conte v R [2018] NSWCCA 209 at [9] in the context of considering a ground contending manifest excess:

“… [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.”

67. It is to be accepted that the aggregate sentence is only 3 years’ imprisonment and that a finding of special circumstances was made. Despite this, I am satisfied that a lesser period of imprisonment was warranted in the highly unusual circumstances of this case.

68. The re-sentencing of the applicant is complicated by the fact that there has been some delay in this matter being listed for hearing. Although the delay was unexplained, it is most likely the result of the applicant being legally aided which involves a process of assessing merit before a grant of aid is made. The fact that the applicant has spent most of his sentence in custody already is relevant to the sentence I would impose on re-sentence.

Re-sentence

69. The applicant filed an affidavit affirmed on 28 April 2022 in the event that the Court re-sentenced him. In it, he set out the details of his incarceration during the Covid-19 pandemic. Many inmates and prisoner officers caught it, so he was locked in his cell all day in January 2022. He could not exercise or work. He got Covid in February and was moved to a segregation unit. He was not allowed to take anything with him (including the book he was reading) and had to wear the same clothes for two weeks. He was locked in his cell all day. When the gaol is not in lock down, he works in the laundry from 7am to 2pm. In the afternoon he trains. He has been trying to see a “psych” but can only see one occasionally. He has Hepatitis C and is trying to get medication for it. He receives a Buprenorphine injection monthly. He is not “using” in custody. When released, he proposes to live with his mother and resume scaffolding work. His six-year-old daughter is missing him. He speaks to her every day.

70. The report of Ms Assaf showed that the applicant had been employed in the scaffolding business. A friend of his, a publican in Dapto, indicated that he was willing to support the applicant with subsidised employment on his release but only on the condition that he refrains from contact with “undesirable associates”, commits to full time employment, is punctual and continues to play rugby.

71. I would adopt all of the findings of the sentencing judge. I would also apply the totality principle given he was serving a sentence at the time he was sentenced before Judge Haesler. I have commenced the sentence slightly earlier than Judge Haesler did. I have made a finding of special circumstances on the same basis as his Honour. Although the departure from the statutory ratio in s 44(2B) of the Sentencing Act is less than that allowed for by his Honour, that is a product of the lesser sentence I would impose, the timing of this appeal, and the need for proportionality.

72. The indicative sentences are as follows. I have applied a 25% discount to them. 1 year and 3 months’ imprisonment for each of the counts under s 66C(1) and an indicative sentence of 1 year and 2 months’ imprisonment for the count under s 66D Crimes Act.

ORDERS

73. I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The aggregate sentence imposed by Judge Haesler SC on 20 July 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 2 years’ of imprisonment to commence on 4 February 2021 and expire on 3 February 2023 with an aggregate non-parole period of 16 months to expire on 3 June 2022.

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Endnote

Decision last updated: 06 June 2022