JA v R

Court of Criminal Appeal (NSW)|2020-12-04|Before: Basten JA, Johnson J, Davies J

Date of Decision: 1 February 2019 Before: Wilson SC DCJ File Number(s): 2016/154764

Judgment

BASTEN JA: I agree with the orders proposed by Davies J, and with his reasons.
JOHNSON J: I agree with Davies J.
DAVIES J: The applicant was charged on two indictments with three separate offences. On the first indictment, referred to as V6.3, the applicant was charged with having sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900 (NSW). The maximum penalty for this offence at the time it was committed between 30 April 1989 and 31 January 1990 was 20 years' imprisonment.

The offending

Judge Wilson sentenced the applicant in respect of the sexual intercourse offence on the basis of an agreed summary of the evidence of the complainant (CA) at the trial. In respect of the other two offences his Honour was provided with a Statement of Agreed Facts.

Indictment V6.3

The applicant was the older brother of CA. At the time of the offence, he was aged 14 years and she was aged nine years. The incident occurred about a month prior to their parents separating. CA was in her bedroom alone playing when the applicant walked in. He looked at her strangely and then picked her up and threw her on the end of her bed. He ripped her underwear off and got on top of her. He took down his own pants and showed her his penis. He positioned himself on top of her and was starting "to ram his penis" near her vagina. The penis was erect and CA could feel it digging down at her vagina. The applicant ended up "ramming [his penis] in about an inch or so" inside CA's vagina. She was in pain and let out a noise. The applicant then got off CA and ran into his bedroom.
CA told her mother about the incident after she, her mother and her sister had left the family home about five weeks later.
This was not an isolated incident, and there had been other earlier incidents of sexual conduct by the applicant towards CA which occurred when the applicant was 13 years old. They were not pursued by the Crown because the Crown informed Judge Bozic SC, who heard a stay application in relation to the offence, that it could put no evidence before a jury to rebut the presumption of doli incapax.

Count 1

This was the offence of using a carriage service to menace/harass/offend. This offence took place on 29 and 30 October 2014 when the applicant was aged 39 and CA was 34.
On 29 October 2014 the applicant contacted CA via Facebook Messenger and they exchanged messages. The next day, further exchanges took place. In one exchange, the applicant said he was no longer friends with Amanda. CA said that that was because "You sent her a rude picture Lol". The applicant replied, "No wasn't rude, she just a lesso, ha, ha, ha, she wouldn't know what to do with it" to which CA said, "Yeah cause its (sic) real meat".
The applicant then sent two colour photos of a penis with the message, "Just a lesso and that's not rubber". CA did not respond.
Later that day, he sent a photo of himself exposing his erect penis, with the message, "She just a lesso", and then, "Going off line now, give us a ring if you want". He then sent two more photos of his erect penis, with the message, "I'll shave him next week, sis".
CA found the messages disgusting and had no further contact with him thereafter.

Count 2

This was the offence of possessing child abuse material. Following information received from the Australian Federal Police, New South Wales police attended the applicant's residence where he was living with his father. The applicant allowed police access to his laptop. They found on his internet browsing history a number of websites pertaining to young children. Police seized the laptop, which was later examined. Police identified 51 images of child abuse material, which were assessed using the Child Exploitation Tracking System (CETS) ascending scale. Of the 51 images, 13 were at CETS level 1, one was at CETS level 2, 16 were at CETS level 3, and 21 were at CETS level 4. There was also a video file found which was assessed at CETS level 4.
The relevant description of each CETS level is: Level 1, no sexual activity depicting nudity, surreptitious images showing underwear, nakedness, erotic posing, explicit emphasis on genital areas; Level 2, sexual activity between children or solo masturbation by a child; Level 3, non-penetrative sexual activity between children and adults; Level 4, penetrative sexual activity between children and adults; Level 5, sadism, bestiality or any form of child abuse; and Level 6, animated cartoons or drawings depicting children engaged in sexual places or activity.

Arrest of the applicant

In February 2016, the applicant's father moved to live with CA. She showed her father the images the applicant had sent to her in 2014. She made contact with the police and reported both the sexual assault allegation and the photographs that he had sent to her.
The applicant was arrested on 19 May 2016 and participated in an ERISP with the police. He admitted the seized laptop was his, and that he was the only user of his Facebook account. He initially denied accessing any child abuse material on his own laptop, but then told police he was forced to download the material by a male known only as Joel, because of a threat made to his father's life.
In relation to the photos sent to CA, he admitted sending the images, which he agreed were of himself, but said he had sent them to her by mistake as he intended to send them to a female named Amanda. He denied sending any messages with the images, including the message, "I'll shave him next week, sis".
The applicant denied all of the allegations made against him by CA.
The applicant now seeks leave to appeal on the following grounds:
The sentencing judge erred by having regard to the current maximum penalty for the offence contrary to s 66A of the Crimes Act 1900 (NSW).
The sentence imposed for the offence contrary to s 66A was manifestly excessive in the circumstances.
The degree of accumulation between the three individual sentences imposed was excessive having regard to the principle of totality, such that the total sentence imposed was manifestly excessive.
The applicant also seeks an extension of time to bring the application for leave to appeal. The application was filed on 17 August 2020 in circumstances where the sentence was imposed on 1 February 2019.

Remarks on Sentence

The sentencing judge first summarised the facts in relation to each of the counts. He then set out the elements of each of the offences.
He next considered the objective seriousness of the offences. In doing so he set out the factors identified by this Court in R v AJP (2004) 150 A Crim R 575 relevant to the s 66A offence. His Honour then said this: [37] In the matter of R v AA [2017] NSWCCA 84, it was held that the age of the Offender in that case being a teenager was relevant because it was such that he had not assumed responsibility for the care of the complainant and that in this instance it could be distinguished between the Offender and an adult.
His Honour noted the submissions of the Crown and counsel for the applicant, including a submission on behalf of the applicant that the sexual assault offence fell below the mid-range "based on the fact that the Offender was a juvenile himself, aged approximately 14, the small age disparity between the two".
His Honour determined that the offence of sexual intercourse and the offence of possessing child abuse material fell below the mid-range, and the offence of using a carriage service fell within the low range.
His Honour set out the subjective material which derived from a sentencing assessment report and a report of the psychologist Anita Duffy. The applicant did not give evidence at the sentence hearing.
His Honour noted that the applicant continued to assert his innocence in relation to the sexual intercourse charge. His Honour said that in respect of the subjective material, there was no evidence which would support a finding that the applicant was affected by any psychiatric condition or addiction at the time of the offending in any of the three incidents.
In terms of aggravating and mitigating factors, his Honour found that the sexual intercourse offence was not aggravated on the basis that it was committed in the home of the victim because the applicant resided in the same premises.
His Honour said that the mitigating factors included his late plea. In relation to the guilty plea, his Honour noted that the applicant did not plead guilty to the two counts on indictment V9.2 until a time around the end of the trial on the sexual intercourse count. He accorded a discount of 10% for that late plea.
He found that the applicant was not remorseful for any of the offences, but that the risk of reoffending was in the below average range. His Honour found that special circumstances existed based on the fact that it was the applicant's first time in custody and because of his mental health issues.

Ground 1: The sentencing judge erred by having regard to the current maximum penalty for the offence contrary to s 66A of the Crimes Act 1900 (NSW)

In his Remarks, the sentencing judge said this: [3] The offences for which this Offender is to be sentenced and the applicable guideposts are as follows: (a) charge number ending 733 and being sequence 4 that is sexual intercourse with a child under 10 years, in breach of s66A of the Crimes Act. At the time of the commission of the offence had a maximum penalty of 20 years imprisonment and no standard non‑parole period. I note that the offence now carries a maximum sentence of life imprisonment and this is the offence for which the Offender was found guilty after pleading not guilty at trial;

Submissions

The applicant submitted that the reference in that passage to "this is the offence", when taken in conjunction with exchanges made between the sentencing judge and the Crown prosecutor at the sentence proceedings, leads to the view that his Honour has taken into account the maximum penalty which now applies to the offence. The applicant submitted that the sentencing judge considered that he was required to have some regard to the current maximum penalty in consequence of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant submitted that, given it was not explained in the Remarks why the current maximum penalty of life imprisonment was referred to at all nor that it did not apply to the applicant, the reference can only be explained by the fact that his Honour took into account the current maximum penalty.
The respondent submitted that it was clear when his Honour said "this is the offence" that his Honour was merely referring back to his earlier statement identifying the offence for which the jury had found him guilty and for which he was to be sentenced.
The respondent submitted that his Honour correctly found that s 25AA required the Court to sentence the offender in accordance with the sentencing patterns and practices at the time it was imposed. The respondent drew attention to s 25AA(4) which provides that the section does not affect s 19 of the Sentencing Act. Section 19 provides that if an Act or Rule increases the penalty for an offence, the increased penalty only applies to offences committed after the commencement of the provision increasing the penalty.
The respondent submitted that his Honour was aware of the maximum penalty. He referred to it, it appeared in the Crown sentence summary, and it was referred to in the exchanges relied upon by the applicant at the sentence proceedings. The respondent submitted that exchanges in the course of sentence proceedings are not ordinarily elevated to an expression of a final considered view. Reference was made to Lonsdale v R [2020] NSWCCA 267 at [27] and Dang v R [2014] NSWCCA 47 at [32]. The respondent noted that, in any event, the reasons were delivered some seven weeks after the sentence hearing.

Determination

The exchanges during the sentence hearing relied upon by the applicant were these (Mr Nicholson for the Crown and Ms Court for the offender): HIS HONOUR: I think it's probably the correct approach as well, as a matter of common-sense given the period of time between the respective periods of offending. Let me just quickly re-read your submissions to see if anything stood out. This is caught by the 25AA amendment? COURT: It is your Honour, I acknowledge that in my submissions, there's only three District Court authorities on the question of the application, two matters that were either found guilty or plea of guilty entered prior to the commencement date but I acknowledge that it's fairly - the language is fairly self-explanatory in the section. HIS HONOUR: So in relation to the - just looking at exhibit A, the Crown Sentence Summary, the sexual intercourse, 66A matter, it says there a maximum penalty 20 years imprisonment. COURT: That's as it was at the time. HIS HONOUR: Right but that's not what I am to have regard to though am I? NICHOLSON: My understanding of it is that - and I might be wrong but my understanding was that your Honour would still bear in mind the maximum penalty as it was when this accused committed the offence but the trend is away from what is now recognised to have been inadequate sentencing practices many years earlier and as the authorities have moved towards the recognition of the significant harm done with these type of offences and more serious penalties your Honour would not, as was previously the case before this amendment was that the Crown or my friend would provide your Honour with what we could of the sentencing trends in 1990 and your Honour would have to sentence something in that range whereas although your Honour still bears in mind the maximum penalty as it was, your Honour can take into account what are our current practices in respect of sentencing 66A matters. HIS HONOUR: And do I also take into account the current maximum penalty? NICHOLSON: I suppose in the sense that-- HIS HONOUR: I think you do, don't you? NICHOLSON: It's inherent in the fact that your Honour would in effect be considering sentences imposed now with a higher maximum penalty. HIS HONOUR: Well is the maximum penalty apparently - according to paragraph 23 of the offender's submissions, imprisonment for life? NICHOLSON: Now it is, yes. It was - in between then it has also been 25 years so it is steadily increased. HIS HONOUR: So 20 years at that time? NICHOLSON: Yes; HIS HONOUR: Now imprisonment for life.
In relation to reliance on exchanges between bench and bar at sentence proceedings, Basten JA in Mohindra v R [2020] NSWCCA 340 said at [37]: With respect to the first point, it is permissible to refer to submissions made to the trial judge for the purpose of (i) demonstrating the issues which had to be determined; (ii) demonstrating procedural unfairness (for example where in the course of submissions the judge has indicated a view which leads counsel to desist from making a submission, yet in the judgment the point disavowed in argument is accepted) see Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 or (iii) supplementing reasons (usually in relation to an interlocutory ruling) where only brief reasons are given because the adversely affected party is fully apprised of the judge's thinking from recent exchanges: You, Jae Bok v R [2020] NSWCCA 71 at [20], [78]. On the other hand, it is not permissible to rely upon observations of the judge in the course of argument in order to establish error in the reasoning in the judgment: R v Van Hong Pham [2005] NSWCCA 94 at [11] (Wood CJ at CL, Hislop and Johnson JJ agreeing).
In the present case, it is significant that the sentencing judgment was delivered seven weeks after the sentence hearing. Even assuming the sentencing judge had the transcript of the proceedings available to him at the time of the sentence judgment, the position is significantly different from an ex tempore judgment where less may be said in the sentencing remarks about an issue that was debated and the judge has not had time to reflect on preliminary views which might have been expressed at the sentence hearing.
In any event, the exchange demonstrates clearly, as the judgment more particularly does at [3], that his Honour was aware that the maximum penalty was 20 years' imprisonment, and that he was obliged to have regard to that maximum penalty and not any increased penalty. Section 25AA is concerned with sentencing patterns and practices. Sub-section (4) by its reference to s 19 makes clear that regard is not to be had to any increased penalty coming into effect after the date of the offence.
The sentencing judge did not get any proper assistance on the point in the exchange set out above. However, if the increased maximum penalty was to be mentioned in his sentence judgment, reference to s 25AA(4) and s 19 would have avoided the present argument.
I would reject this ground of appeal.

Ground 2: The sentence imposed for the offence contrary to s 66A was manifestly excessive in the circumstances

The applicant submitted that the ground of manifest excess was put on three bases. First, the applicant submitted that, although the sentencing judge took into account his age at the time of the offence as relevant to its objective seriousness, the sentencing judge gave little, if any, consideration to how the applicant's youth reduced his culpability for the offence. His immaturity was evident from his then biological age of 14 years. The applicant submitted that the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) specifically referred to the immaturity of children, and he was at the lowest age of full criminal responsibility.
Secondly, the applicant submitted that the sentencing judge gave too much weight to the issue of general deterrence. The applicant submitted that although his Honour said that there was a tension between the need for general deterrence for child sexual offences and the offender's status as a child at the time of offending, the sentencing judge said nothing further as to how he resolved that tension, or if it moderated his earlier assertion of the need for strong general deterrence.
Thirdly, the applicant submitted that while accepting that comparative cases cannot by themselves establish that the sentence received by the applicant was manifestly excessive, they supported the submission that it was excessive. The applicant identified a number of cases where offenders were aged between 13 and 17 and submitted that the sentences imposed in those cases were significantly less than was imposed on him.
The applicant did not take issue with his Honour's determination of the objective seriousness of the offences being below the mid-range.
The respondent submitted that the sentencing judge did take the youth and immaturity of the applicant into account in relation to his moral culpability, having referred to the applicant as a juvenile at the time of the offence on a number of occasions. The respondent submitted that the sentencing judge also referred to the principles in s 6 of the Children (Criminal Proceedings) Act. The respondent submitted that the applicant's youth and immaturity at the time of the offence was not an issue in the proceedings, and the Crown accepted that the applicant was at the lower end of the spectrum of juvenile offenders.
The respondent submitted that the youth of an offender does not automatically lead to a reduced sentence. The greater the objective gravity of an offence, the increased likelihood of weight being given to retribution and general deterrence rather than rehabilitation. The respondent submitted that the applicant's complaint was that "too much weight" had been given to general deterrence, but the question of what weight is to be accorded to an issue involves an exercise of discretion within the province of the sentencing judge.
The respondent submitted that consistency in sentencing was not demonstrated by numerical equivalence. The respondent submitted that there were a number of different factual circumstances and subjective material in the comparative cases relied upon by the applicant in a way that distinguished them from the present matter. The respondent accepted that the decision in one of those case, R v KBM [2004] NSWCCA 123, involved similar facts but submitted that the offender in that case had a far more compelling subjective case.
The respondent submitted that it could not be established that a sentence of four years and eight months with a non-parole period of two years and eight months was unreasonable or plainly unjust given the maximum penalty, the finding of objective seriousness that the offence was below the mid-range, that it involved penile/vaginal intercourse with a degree of physical force to the applicant's nine year old sister, that the applicant was not affected by any psychiatric condition or addiction at the time of the offending and that he had not demonstrated any remorse. In addition, his risk of re-offending was said to be in the below average range and a finding of special circumstances was made.

Determination

In KT v R [2008] NSWCCA 51 McClellan CJ at CL said: [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. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. [23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society." [25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. [26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).
In BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Hodgson JA said (with the agreement of Rothman J): [3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] - [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.
The third judge, Johnson J, while dissenting on the length of the sentence, also referred to and adopted the principles set out by McClellan CJ at CL in KT.
In R v Elliott and Blessington [2006] NSWCCA 305 Kirby J said at [127]: A jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children. The reasons for the distinction were well explained in a report by a psychologist which the New Zealand Court of Appeal reproduced and appeared to accept in Slade v The Queen [2005] NZCA 19: "[43] It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent."
In the present matter, although his Honour, having made reference at [44] to a submission on behalf of the applicant that he was a juvenile at the time, made reference to the offence being committed while the applicant was a child, and noted s 6 of the Children (Criminal Proceedings) Act, he did not explain at all how he applied those matters to the present offending. His Honour said this: [81] Whilst the Offender committed the sexual contact offence as a child, the offence was a serious indictable offence and the Offender therefore must be dealt with according to law. Section 6 of the Children (Criminal Proceedings) Act notes the principle to which the Court is to have regard when sentencing a juvenile offender including factors such as children should not be imposed sentences no greater than imposed on an adult who committed an offence of the same kind. [82] There is a tension in this matter between the need for general deterrence for child sexual offences and the Offender's status as a child himself at the time of the offending. Section 25AA of the Crimes (Sentencing Procedure) Act requires the Court to sentence the Offender in accordance with the sentencing patterns and practices at the time of sentence, that is today, having regard to the trauma of the child sexual abuse on children as understood at the time of sentencing. That question in this case is informed by the Victim Impact Statement to which I have already referred.
His Honour then proceeded to sentence the applicant without further reference to those matters, or to the principles extracted from the cases, including those which were contained in the applicant's written submissions to the sentencing judge. Although his Honour noted a submission on behalf of the applicant when he was assessing objective seriousness that the applicant was aged 14 and there was a small age disparity between him and the victim, this matter was not adverted to anywhere else in the sentencing judgment. The matter was relevant, not just for assessing objective seriousness, but for a consideration of the applicant's subjective features at the time, and for balancing issues of rehabilitation on the one hand, and specific and general deterrence on the other. Part of the consideration of subjective features was the applicant's emotional maturity at the time, which was highlighted by his being at the minimum age for criminal responsibility without the need to consider doli incapax.
It is true that in the present case there was nothing in the report of the psychologist, Anita Duffy, which dealt with the applicant's maturity or other relevant matters (with one exception) at the time of the offending. That is scarcely surprising. However, his Honour was entitled to have full regard to the applicant's age at the time of the offending to conclude that his brain would not have matured, and that he would likely have difficulty in controlling impulses, especially sexual impulses. The one exception mentioned earlier was that the report showed that the offending took place in the context of the breakdown of his parents' marriage. It is not difficult to conclude that such a breakdown would have had a deleterious effect on the applicant.
His Honour ought also to have considered that the principles to be applied, when sentencing for an offence committed when the offender was a juvenile, apply whatever the seriousness of the crime: R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [24]; KT at [23]; BP at [6]. He ought also to have considered whether, and to what extent, both general and specific deterrence should be given much, if any, weight. In relation to specific deterrence, the applicant's criminal history showed no further offending of a sexual nature until the commission of the other offences for which he was sentenced, a period of 25 years.
In terms of the approach a sentencing judge might take to the difficult task of sentencing an adult many years after the commission of an offence by them as a juvenile, Basten JA suggested during the course of argument, that one way of testing the matter might be for the sentencing judge to put himself or herself in the position of sentencing the offender at a time, perhaps, 18 months after the offence was committed, and where no other offences had been committed by the offender. Such an approach focuses the judge's mind on the principles identified in the cases such as KT, RP and Elliott. It may be accepted that some matters, such as the need for the offender to live at home and attend school, which are to be weighed against a custodial sentence, no longer have relevance. But that cannot mean that an offender receives a heavier sentence if sentenced as an adult rather than when he is a juvenile.
The reference to s 25AA was not relevant to the issue raised by the fact that the applicant was a juvenile at the time of the offending, and that the offending occurred in 1989. There was nothing to suggest that the patterns or practices for sentencing juveniles had changed since the time of the commission of the offence: see the approach in the cases mentioned in Hearne at [23] and [24], many of which precede the time of the present offending in 1990.
It may be accepted that it is difficult to sentence an offender some 30 years after an offence has been committed, and in circumstances where the offender was a juvenile at the time, particularly where the offender was being sentenced for another offence against the same victim committed many years later when he was an adult. Nevertheless, when proper account is taken of the applicant's age at the time of the commission of the sexual assault offence, the sentence imposed by the judge was not reasonably open to him. The manifestly excessive sentence was brought about by the failure to have proper regard to the principles concerning the sentencing of juveniles.
I would uphold this ground. In the circumstances, it is not necessary to consider ground 3, but the matters raised by that ground will be considered in the re-sentencing of the applicant.

Extension of time

As noted earlier, the application for leave to appeal was filed well out of time. The respondent opposed an extension being granted, but submitted that ultimately the matter would turn on whether there was any merit to the appeal. There is a lengthy affidavit from the present solicitor for the applicant who was first retained in February 2020 explaining the reasons for the delay. In the circumstances, an extension should be granted.

Re-sentence

No complaint is made about the sentences for the two offences on indictment V9.2. The applicant is not being re-sentenced in relation to those offences. The sentences for those offences will become relevant only when issues of totality arise.
In assessing the objective seriousness of the sexual assault offence, the significant matters are the applicant's age, the age relativity of CA, the nature of the sexual intercourse and the length of the assault. Where the offence charged can be committed by a child or an adult, the facts that the applicant was aged only 14 years and the offence was relatively fleeting are significant indicators that the offence should fall within the low range of objective seriousness, notwithstanding that it involved some degree of penile/vaginal penetration.
In accordance with the authorities mentioned earlier, the Court can take judicial notice of the emotional immaturity of the applicant at the time of the offending. Further, and as mentioned earlier, the offending took place around the time of the break-up of the marriage of the parents of the applicant and CA, a matter which would, at the least, have been difficult for, relevantly, the applicant.
Whilst the sentencing assessment report, and to a lesser extent the psychological report of Ms Duffy, contain rather troubling material in relation to the applicant's acceptance and understanding of his offending, that behaviour concerns his beliefs and attitudes as an adult. It would not be appropriate to have regard to it when assessing him as a child of 14 to 16 years of age. What is significant is that, until the offences in 2014, there is no indication of any sexual offending or deviance since the offence committed when he was 14. It is also relevant that his record discloses no offending of any type from 1994 until the offences in 2014, and the offences on his criminal record in the early 1990s were minor. That is a good indication that his prospects of rehabilitation and not reoffending should be assessed as reasonably good.
I have had regard to a number of cases, being R v KLH [2004] NSWCCA 312, KBM, R v JDB [2005] NSWCCA 102, Paul Campbell v R [2018] NSWCCA 87, R v RM [2015] NSWCCA 4 and BM v R [2019] NSWCCA 223. In each of those cases the offender was aged between 13 and 15. In each case there were multiple offences. At least one offence in each case, and sometimes more than one, was an offence under s 66A. In a number of those cases the maximum penalty for that offence was 25 years' imprisonment. Taking into account that a number of the cases involved guilty pleas where a 25% discount was accorded, the longest aggregate or effective sentence (KLH) was a sentence of two years with a non-parole period of 12 months. In a number of cases, including RM where the offender committed the offences aged 15 but was not sentenced until he was in his mid-twenties, only suspended gaol sentences were imposed.
In my opinion, an appropriate sentence for the offence of sexual intercourse with a child under the age of 10 years should be a non-parole period of one year and three months with a balance of term of five months.
The sentencing judge made the sentences for the s 91H offence and the offence against s 474.17 concurrent for one month only, and made the offence against s 474.17 and the sexual assault offence concurrent for one month only. In doing so, his Honour said at [86]: Due to the temporal disconnect between the offences I will impose partially concurrent and partially cumulative sentences for the three offences in order to ensure that the overall sentence is not crushing.
The applicant accepted that issues of accumulation and concurrency were discretionary matters for a sentencing judge, but submitted that the almost total accumulation of the sentences failed to avoid a crushing sentence. The applicant submitted that, in applying the totality principle, the sentencing judge had to provide for an overall effective sentence that was just and appropriate having regard to all of the offending behaviour.
In my opinion, the three different forms of the offending were entirely discrete. The latter two occurred about 25 years apart from the first and most serious offence. The only commonality of the offending was that each offence involved criminal sexual offending. In those circumstances, it is appropriate to order the sentences as follows: the sentence of 6 months' imprisonment for the offence contrary to s 474.17 should commence on 25 July 2018 and expire on 24 January 2019; the sentence of 18 months for the offence against s 91H should commence on 25 December 2018 and expire on 24 June 2020 with the non-parole period of 12 months expiring on 24 December 2019; the offence against s 66A should commence on 25 November 2019 and expire on 24 July 2021 with the non-parole period of 15 months expiring on 24 February 2021.

Conclusion

I propose the following orders: 1. Extend time for the filing of the Notice of Application for Leave to Appeal to 17 August 2020; 2. Grant leave to appeal. 3. Allow the appeal. 4. Quash the sentence for the offence contrary to s 66A of the Crimes Act 1900 (NSW) imposed by Judge Wilson SC in the District Court on 1 February 2019. 5. In lieu, sentence the appellant to a non-parole period of one year and three months commencing 25 November 2019 and expiring 24 February 2021 with a balance of term of five months expiring 24 July 2021. 6. The appellant is first eligible for parole on 24 February 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2021

Crimes Act 1900(NSW)ss 66A, 91H

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