THE COURT: This matter was heard by the Court on 11 September 2019. At the conclusion of the hearing the Court made the following orders:
(1) Allow the application for leave to appeal.
(2) Appeal allowed.
(3) Set aside the aggregate sentence imposed for Counts 1 and 2 by Gartelmann SC DCJ and in lieu thereof impose an aggregate sentence of 1 year and 6 months to commence on 12 December 2018 and to expire on 11 June 2020, with an aggregate non-parole period of 9 months to commence on 12 December 2018 and to expire on 11 September 2019. BM will be first eligible for parole on 11 September 2019.
The Court recommends to Corrective Services NSW that the applicant be released forthwith.
The following indicative sentences are identified:
(a) in respect of Count 1, 14 months; and
(b) in respect of Count 2, 8 months.
(4) Finding of special circumstances made. Reasons reserved.
The following are our reasons for making those orders.
On 27 August 2018, the applicant, who shall be referred to as BM to protect the identity of the complainant, pleaded guilty to the following four counts:
1. Count 1 - between 1 May 2008 and 1 October 2009, at Wallsend in the State of New South Wales, did have sexual intercourse with the complainant, a child then under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW);
2. Count 2 - between 1 May 2008 and 1 October 2009, at Wallsend in the State of New South Wales, did assault the complainant, a person then under the age of 16 years, and at the time of that assault did commit an act of indecency upon her, contrary to s 61M(2);
3. Count 3 - between 1 October 2011 and 1 October 2014, at Rankin Park in the State of New South Wales, did assault the complainant, a person then under the age of 16 years, and at the time of that assault did commit an act of indecency upon her, contrary to s 61M(2); and
4. Count 4 - between 1 October 2014 and 1 January 2015, at Wallsend in the State of New South Wales, did assault the complainant, a person then under the age of 16 years, and at the time of that assault did commit an act of indecency upon her, contrary to s 61M(2).
On 14 December 2018, the sentencing judge sentenced the applicant. In respect of counts 1 and 2, the applicant was sentenced to an aggregate term of imprisonment for 2 years and 6 months commencing 12 December 2018 and expiring 11 June 2021. His Honour fixed a non-parole period of 1 year and 3 months commencing 12 December 2018 and expiring 11 March 2020. The sentence was backdated two days to take into account the pre-sentence custody referable to the offences. The indicative sentences for counts 1 and 2 were:
1. Count 1 - imprisonment for 2 years and 6 months, reflecting a nominal starting point of three years with rounding; and
2. Count 2 - imprisonment for 1 year and 3 months, reflecting a nominal starting point of 1 year and 6 months with rounding.
In respect of count 3, his Honour imposed a Conditional Release Order for a period of 2 years with the standard conditions. In respect of count 4, his Honour imposed a Conditional Release Order for a period of 3 years with the standard conditions and an additional condition that he accept the supervision of community corrections.
The notice of appeal filed on 3 July 2019 raised only two grounds, each limited to the aggregate sentence imposed for counts 1 and 2. The grounds of appeal were:
1. The sentencing judge erred in failing to properly assess the seriousness of the offences in counts 1 and 2.
2. The indicative sentences arrived at and the aggregate sentence imposed for counts 1 and 2 on the indictment were manifestly excessive.
The agreed facts in relation to grounds 1 and 2 were that the applicant is a cousin of the complainant. In 2007, the complainant's father moved from Toowoomba to reside with the applicant and his family at Wallsend in a search for work. In about mid-May 2008, the complainant, her brother and her mother followed him there. At that time, the complainant shared a room with her parents and the applicant shared a room with the complainant's brother.
The events the subject of counts 1 and 2 occurred sometime between mid-May 2008 and 1 October 2009, when the complainant was four or five years of age, at a time when both she and the applicant were residing with their respective parents at Wallsend. One afternoon whilst their families were home the applicant and the complainant were in his bedroom hiding underneath the bedding. The complainant was naked and the applicant was clothed. The applicant inserted a lollypop stick inside the complainant's vagina (count 1) and rubbed her bare vagina with his hand (count 2).
The agreed facts stated that the applicant was 13, 14 or 15 years old at the time of the events the subject of counts 1 and 2. The applicant was 13 years and 10 months old at May 2008, the earliest time the Crown alleged counts 1 and 2 occurred. We will return to this issue below.
Counts 3 and 4 related to events in later years. We accept that these counts, which involved BM kissing the complainant (count 3) and picking the complainant up by grabbing her buttocks firmly with both of his hands (count 4), have the effect that it cannot be concluded that counts 1 and 2 were isolated events. They are, however, otherwise irrelevant in determining the objective seriousness of counts 1 and 2.
As to the objective seriousness of counts 1 and 2, count 1 was found to be "in the lower, but not at the lowest, end of the range for such an offence" and count 2 was found to be "between the lowest end and the middle of the range for such an offence". The sentencing judge's findings about objective seriousness were as follows:
"The objective seriousness of each offence must be assessed, having regard to its facts and circumstances. I note the following in respect of Count 1. First, the age of the victim was four or five years at the time. The victim's age was approximately in the middle of the range for the element constituting the offence. The victim was vulnerable because of her age at the time. Generally, the younger the victim, the more serious the offence. The offender was aged 13, 14 or 15 years at the time. The disparity between their ages was thus about nine years. That disparity is significant, particularly having regard to the youth of the victim. The act constituting sexual intercourse was insertion of a lollypop stick in the victim's vagina. The facts disclose the act caused the victim pain. There is no evidence as to the duration of the act. The fact that the offender was the victim's cousin and resided in the same home with her, even with the disparity in their ages, did not establish that he was in a position of trust such that its breach would amount to an aggravating factor. However, the fact that the offence was committed in the victim's home, where she was entitled to feel safe and secure, is an aggravating factor.
The facts are consistent with the offence being committed opportunistically. There is no evidence to suggest it was planned. The facts record the offender engaged in grooming behaviours, including showing the victim pornography, however the evidence does not establish that this occurred before this offence. Accordingly there is no basis to conclude other than that this offence was opportunistic.
There is evidence that the offender subsequently engaged in other sexual misconduct towards the victim. Accordingly, to that extent, the offence cannot be viewed as an isolated incident. In my view, having regard to all of these considerations, the objective seriousness of this offence is in the lower, but not at the lowest, end of the range for such an offence.
Count 2 was committed contemporaneously with Count 1. The victim's age was thus the same but it was lower within the range constituting the element for this offence. The disparity in the ages of the offender and victim was again significant. The act constituting the offence was the rubbing of the victim's bare genitalia. The evidence again does not establish the duration of the act. It is again an aggravating factor that the offence was committed in the victim's home. The evidence indicates again the offence occurred opportunistically and without planning. In my view the objective seriousness of this offence is between the lowest end and the middle of the range for such an offence."
In approaching this case it is to be noted that the sentencing judge faced very limited sentencing options. On 24 September 2018, the sentencing regime changed and both suspended sentences and Intensive Correction Orders were no longer available. [1] Other than a sentence of full-time imprisonment, his Honour had only the option of imposing a Community Correction Order, perhaps including community service work as a function of that Community Correction Order.
We do not accept that the sentencing judge erred in concluding that the s 5 threshold had been reached in respect of counts 1 and 2. The determination of where an offence lies on the scale of objective seriousness is an evaluative decision not lightly interfered with by this Court. It is only when a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration that this Court should intervene. This was a case where it was open to the sentencing judge to find that the s 5 threshold had been crossed. It was open to his Honour to conclude that no sentence other than full-time custody was warranted. We also reject the submission that it was not open to the sentencing judge to conclude that the fact the offending took place in the victim's home was an aggravating factor. In our view, it was. The young victim was entitled to feel safe in her home.
We have concluded, however, that despite the care which must be taken in intervening in relation to a sentencing judge's assessment of objective seriousness, this is a case where intervention is warranted as the sentencing judge has failed to take into account a material consideration.
In Tepania v R [2018] NSWCCA 247 at [112], Johnson J (with whom Payne JA and Simpson AJA agreed) explained that, in determining the objective seriousness of an offence, regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offences, including (if it be the case) a mental disorder or mental impairment.
Further, 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."
The critical factors in the present case, which necessarily were required to be taken into account in assessing the objective seriousness of the offending, were the applicant's age and his mental condition. Properly understood, in the circumstances of this case they were each causally connected with, and materially contributed to, the commission of the offences. Although the sentencing judge did refer to the applicant's age and his mental condition when addressing, separately, the topics of moral culpability and general deterrence, we have concluded that there was error in failing to take those matters into account in assessing the objective seriousness of counts 1 and 2.
As to the first matter, the age of the applicant at the time that counts 1 and 2 occurred, the Crown in this Court very fairly accepted that the applicant was entitled to be sentenced on the basis that he was 13 years and 10 months old at the time of the offences in counts 1 and 2. If the age of a young offender who had committed child sexual assault offences is properly to be taken into account in an assessment of objective seriousness of the offence, the offender's age at the time of the offending must first be determined by the sentencing judge. Here, the agreed facts provided that the applicant "would have been aged 13, 14 or 15 years" at the time counts 1 and 2 occurred. In providing the context relevant to an assessment of objective seriousness, there will usually be a considerable difference between a young male offender aged 13 and a young male offender aged 15. The age of the young offender, being a matter relevant to the assessment of objective seriousness of the offence, is a matter required to be proved by the Crown. The most the Crown proved here, by reason of the plea of guilty and the agreed facts, was that the applicant was 13 years and 10 months at the time of the offences in counts 1 and 2. The sentencing judge did not proceed on that basis.
As to the second matter, the sentencing judge made a finding that the applicant likely suffered from a mental condition, being a learning disorder and/or Attention Deficit Hyperactivity Disorder. The sentencing judge found that the applicant's mental disorder contributed to his offending such that he was less morally culpable for it and that moderation of the weight given to general deterrence was warranted. The sentencing judge did not, however, take this causative mental condition into account in assessing the objective seriousness of counts 1 and 2.
Whilst his Honour adverted in various places in his remarks to the issues of the youth and impulsivity of the applicant, we have concluded that his Honour erred in assessing the objective seriousness of counts 1 and 2 by failing in that assessment to take into account the age of the applicant (correctly determined) and the applicant's mental condition.
Having reached this conclusion, it is unnecessary and undesirable to express any views about ground 2 of the appeal.
Having found error in relation to ground 1, this Court must proceed to re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The conduct the subject of counts 1 and 2, if committed by an adult, would warrant a finding of objective seriousness somewhere below the mid-range. Nevertheless, the conduct would undoubtedly warrant a significant term of imprisonment. So much was established by the decision of this Court in Paul Campbell v R [2018] NSWCCA 87.
In the present case the objective seriousness of each offence is ameliorated to a very significant extent by the applicant's age at the time of the offending and his mental disorder which was causally related to the offending. The offending conduct here, engaged in opportunistically by a 13 year old boy with a mental condition, which was causative of the offending, affected in a significant way his moral culpability and the objective seriousness of the offending. In all the circumstances the offending in each of counts 1 and 2 was at or near the bottom of the range of objective seriousness for offences of this kind.
For the purposes of re-sentence, we take into account the statutory guideposts of the maximum penalties for each offence and the fact that in this case the standard non-parole period applying to an adult in relation to count 1 does not apply. We find that the s 5 threshold has been crossed and that no sentence other than a custodial sentence is appropriate. We adopt the sentencing judge's findings about the applicant's strong subjective case. It is appropriate to make a finding of special circumstances such that the ratio between the aggregate head sentence and non-parole period should be 50%. This is because of the applicant's youth and to permit a longer than usual period on parole to assist in rehabilitation. We have applied a 25% discount on the sentences indicated for counts 1 and 2 to reflect the very early plea of guilty. In applying totality principles we take into account that the events the subject of counts 1 and 2 occurred in the same episode but were not isolated events.
For these reasons we made the orders on 11 September 2019.
[2]
Endnote
See the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW).
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Decision last updated: 27 September 2019
Parties
Applicant/Plaintiff:
BM
Respondent/Defendant:
R
Legislation Cited (4)
See the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017(NSW)