JL v R

Remarks on sentence

1. I will first recount the parts of the remarks on sentence which are not the subject of grounds of appeal.

Agreed facts of offending

1. His Honour summarised the agreed facts for sentence. There is no issue taken with his Honour's summary, which is as follows.
2. The applicant was in the care of the Minister and was living in managed accommodation in a street in Casino.
3. Because of bail conditions for other offences the applicant was kept under strict supervision, including a curfew and was not allowed out alone at night. A carer lived with the applicant full time and the residence was locked at night with security measures in place.
4. The victim was 62 years of age and lived alone in the same street as the applicant's accommodation. She was reclusive and did not allow visitors or even family into her home. She had a heart condition and diabetes. As a result of her diabetes, she had a foot condition which required her to wear specialised footwear. She experienced difficulty walking without her boots and was aided by a walking stick and crutches.
5. On the evening of 16 March 2022, the victim was in her home. The doors were locked and the windows closed. At about 10:30pm the applicant's carer told him to go to bed, which he did. At some later time he left his bedroom in the house without detection as the alarm system was not switched on.
6. At around 11:30pm the victim thought she heard a knock at her front door. She turned on the veranda light and looked through the glass front door. She called out "Is anyone there? Who's there?". There was no response and she could not see anyone. However she saw that the veranda security screen door was unlocked and opened, and the security sensor light was on. She looked again but could not see anyone, so she closed and locked the security screen door. She secured the back door with a chain and went to bed around 12:45am.
7. Around 12:30am the applicant's carer woke and noticed the applicant was not in the house.
8. The applicant entered the victim's house by opening a rear window and reaching in to unchain and unlock the back door. The victim heard a noise in the kitchen. She turned on the light and with the aid of her crutches she walked to the kitchen. However, she did not see anything out of place and returned to her bedroom and apparently fell asleep.
9. A short time later she woke and felt someone lying on her bed. She saw the applicant and said words to the effect "What the fuck, who are you? Get the fuck out of my house. What the fuck do you want?" She tried to push him away and get out of bed. The applicant knelt on the bed and pushed her back down on the bed, saying "Just do as I tell you and you won't get hurt". The victim was struggling to breathe and kept saying "What the fuck do you want?" She was struggling against the applicant in an attempt to reach for her walking stick.
10. The applicant took the walking stick from the victim and said "Do as I tell you, and you won't get hurt. I can quite easily kill you… I can choke you. I can quite easily choke you. I can suffocate you. I can kill you." The victim was struggling to breathe. She said she needed to sit up and she could not breathe. The applicant pushed her back on the bed but she managed to sit upright on the side of the bed and put her feet on the ground. The applicant was kneeling behind the victim and said "Just do as I say otherwise I'll kill you. I can quite easily choke you." The victim was struggling to breathe and was fearful for her safety, believing that the applicant would seriously harm her. She told him she could not breathe, she thought she was having an asthma attack or a heart attack.
11. The applicant then stood directly in front of the victim and attempted to push her back on the bed. She resisted and grabbed hold of the bedhead. She managed to reach a bedside lamp and turned it on. She saw that the applicant was not wearing any pants or underpants and his penis was semi erect. He then said words to the effect "Suck it, lick it and put it in your mouth." As he said those words he rubbed his penis across the victim's mouth. She kept her mouth closed and repeatedly responded "I can't, I can't, I cannot breathe." As she said this, the applicant pushed the tip of his penis into her mouth. She attempted to bite his penis but unsuccessfully. The tip of the applicant's penis was in the victim's mouth for a short period of time. That is the act the subject of the aggravated sexual assault offence.
12. The applicant stopped trying to have the victim suck his penis and began masturbating. He said "Here, get this in your hand". He again threatened to kill her if she did not do as he said. The victim placed her hand on the applicant's semi erect penis and masturbated it for a few seconds. That is the offence on the Form 1.
13. The applicant removed the victim's nightdress, saying "We need to get this off". He slapped her breasts repeatedly with both hands and pinched her nipples. He said "Oh you've got really nice boobs, haven't you?" He then positioned himself between the victim's legs as she sat on the edge of the bed. He placed his penis between her breasts, he pushed her breasts together and moved his penis up and down between her breasts. After about 30 seconds he ejaculated onto her chest. That is the offence of sexual touching without consent.
14. The applicant then turned away and walked around the bed. He put his shorts on and walked out of the bedroom towards the back of the house. As he was leaving he turned towards the victim and said "Just a word of warning, learn to keep your windows locked." He then left through the back door.
15. About 2:00am the applicant's carer was filling out a Missing Persons Report when the applicant walked through the front door. When asked where he had been he said he had been on the roof of the house looking at the stars.
16. Following the offences the victim was in a state of distress. She struggled to stand and could not access her crutches, so was unable to walk. She was unable to reach the bathroom and defecated on the floor. She eventually managed to get her mobile phone and called 000 at 2:40am. She told the operator she had been sexually assaulted in her home about half an hour before and had been unable to call as she had difficulty breathing. She gave a description of her assailant.
17. Police arrived shortly after 2:40am. When ambulance officers arrived the victim was treated, given oxygen and taken to hospital, where she was admitted and examined. She presented with acute shortness of breath and was admitted with a suspected heart attack or enlargement of the heart muscle caused by extreme emotional or physical distress, with signs of acute heart failure. She had an angiogram which identified pre-existing vessel disease. Bruising was identified on her left breast. She later discharged herself against medical advice.
18. On the afternoon of 17 March fingerprints were located at the victim's home, which were later matched with the applicant's. His fingerprints were on the timber door frame between the victim's bedroom and the hall and on the front driver's side bonnet of her car, which had been parked in the carport. That night, police arrested the applicant and cautioned him. He said he had never been to in the house of the victim. He said that on the morning of the incident he was at home and having a shower around 1:30am. Sometime after that he asked the detective "Is she okay, is the lady OK?". The detective replied that she was in hospital.
19. Police seized some items from the applicant's accommodation, including a shirt which appeared to have white dried staining on its front.
20. On 18 March 2022 the applicant made some partial admissions to a person who appears to have been involved in his care.
21. A later analysis of a swab taken from between the victim's breasts was positive for semen. DNA analysis of swabs taken from several locations on the victim's breasts returned a DNA profile that matched the applicant's. DNA analysis of an oral rinse from the victim identified a partial male DNA profile.

Victim Impact Statement

1. His Honour took into account a Victim Impact Statement. His Honour stated that the victim clearly articulated the emotional and psychological damage she had suffered as a result of the offending conduct, and with her particular vulnerabilities the trauma had had a lasting impact. He noted her sense of safety had been taken away from her and she continues to struggle daily with severe anxiety attributable to the offending. His Honour accepted the extent and scope of the impact of the offences upon the victim. His Honour determined to not take that into account as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

Subjective circumstances

1. His Honour referred to the applicant's subjective circumstances, noting they were detailed in reports of Patrick Sheehan, forensic psychologist and Lisa Butcher, psychologist.
2. The applicant's parents separated in his infancy. He remained for a time in the care of his mother and had no contact with his father until recent years. His earliest memories were being exposed to violence in the home from his stepfather. He was removed from the family home, aged seven or eight years of age, having been made a ward of the state. The applicant reported unstable residence throughout his subsequent development, with family placements and foster care placements all breaking down quickly.
3. He attended at least six different primary schools. He denied any problems at school despite having been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Since his arrest in March 2022 he has undertaken education in the juvenile justice system. The applicant told Mr Sheehan that he wanted to complete his HSC equivalent and enter university. Mr Sheehan said "Given his low-average intellectual functioning his goals are likely unrealistic and in keeping with a broader pattern of impaired self-appraisal."
4. The applicant told Mr Sheehan of a limited substance use history, smoking cannabis occasionally during periods of stress and not using other substances.
5. His Honour noted that Mr Sheehan had said in his report: "11. File references refer to JL having displayed a range of behaviours while at [his managed residence] such as inappropriate touching of female staff, voyeuristic behaviour towards female staff, exposing himself to male staff, masturbation in public places and generalised sexualised language. … 20. The evidence is that JL's sexual behaviour has shown signs of disorder for some years, sufficient to have resulted in referral to the New Street program in 2020. He is too young to be diagnosed with paraphilia, and his behaviour is more indicative of disinhibition, role violation and absence of boundaries as opposed to a specific deviant interest. It remains to be seen as to whether his disinhibited sexual behaviour will continue in adulthood or remain contained to his adolescence. … 24. During interview JL acknowledged the offences and was able to name his charges, but was unable to offer any insight into the processes underpinning his offending. He recalled having been 'bored', aggravated by having broken his mobile phone a few days earlier… He said that he broke into the home looking for car keys but described his sexual offending behaviour as impulsive, saying 'I lost control. It was hormones. I was scared. My body did what it did.' He was able to express an appreciation of the harmfulness of his offending on the victim, saying 'It would have been terrible. She might have bad memories, might not be able to trust people, looking over her back all the time to be sure there is no one there'. … JL said 'I feel shit every time I think about it. I actually got quite suicidal after that. I was shocked that I did it.' … 26. JL is a 16 year old boy who is currently charged with sex offences against a stranger in her home, committed in March 2022, when JL was aged 14 years. The offence was impulsive and spontaneous, committed whilst subject to bail and being managed under tight supervision on a background of recorded sexually disinhibited behaviour in care settings. His own history is one of significant early deprivation and trauma, undermining his development in important domains of attachment, emotional regulation, impulse control, moral development and accountability. The influence of early trauma is blurred against his neurodevelopmental disorders (ADHD and ASD), which have also influenced his impulsivity, undermined his capacity for empathy… and judgement. These features have impaired JL in ways that have sabotaged his home care arrangements, resulting in institutional care. These features have also likely contributed to his current offending in a material way (impulsivity, acting out, poor appreciation of roles/boundaries, lack of empathy or recognising emotions of others) but cannot account for his actions entirely. 27. As it is, JL can recognise the wrongfulness of his actions, but cannot provide any insight or volitional ownership of his offending. This is related to a broader problem in accountability observed by carers and represents a key risk factor (along with sexual disinhibition, impulsivity, impaired self-appraisal and low empathy) that will need to be addressed therapeutically in order to reduce his risk of sexual harm to others. Therefore, it will be important that JL participates in a sex offending specific rehabilitation program once he is sentenced for the current matters. In doing so, he will have the opportunity to develop more insight into his offence and to develop a coherent plan for minimising any chance of similar offending in the future. It is important to note that risk remains highly dynamic during adolescence, not fixed, given the state of flux during this developmental phase."
6. His Honour noted from a Youth Justice Report that whilst in custody JL had received 54 notices of misbehaviour and one criminal charge of damaging property, and had also been the victim of assault by other detainees. He was reported to have engaged in education.
7. His Honour noted from the report of psychologist Lisa Butcher: "JL is described as having a range of social difficulties as well as a history of risk-taking behaviours. JL presents as a likeable, humorous, insightful and intelligent young man. He has historical diagnoses of ADHD and PTSD, and now in addition, ASD [Autism Spectrum Disorder] (Level 2)..."
8. Ms Butcher stated that JL meets the criteria for a diagnosis of Autism Spectrum Disorder (Level 2).
9. His Honour referred to the Youth Justice Report which referred to a later report by psychologist Lisa Butcher (not separately tendered in the proceedings) where Ms Butcher had stated that JL has some protective factors that ameliorate his risk of reoffending, including improved relationships with his biological family, and that his strengths include accepting responsibility, being internally motivated to change, understanding risk factors along with management strategies, current empathy for the victim, remorse and guilt towards the victim, no evidence of cognitive distortion and a current healthy management of sexual urges.
10. His Honour found that JL's expressions of remorse to Mr Sheehan were genuine.
11. His Honour found that the reports he had referred to "would seem to indicate continuing emotional immaturity" and found "the offender remains vulnerable on account of his 'constellation of disorders'" as described by Mr Sheehan. These were factors in his Honour making a finding of special circumstances under s 19(4)of the Children (Criminal Proceedings) Act.

Ground 1: His Honour erred by: a) finding that the applicant's mental conditions did not reduce his moral culpability and the significance of general deterrence and b) failing to find that the applicant's mental conditions meant that a custodial sentence would weigh more heavily on him

1. In respect of Ground 1(a) counsel relied on the following statement by his Honour: "In the written submissions that Mr Watts, counsel for the offender, at paragraph 18, he stated that 'the significant causal connection between the offender's mental conditions and his offending reduces his moral culpability and the significance of general deterrence in accordance with the principles in DPP v De La Rosa'. However, the features relied upon are those referred to by Mr Sheehan as 'impulsivity, acting out, poor appreciation of roles/boundaries, lack of empathy or recognising the emotions of others.' Mr Sheehan stated that while those features have also likely contributed to his current offending in a material way, that cannot account for his actions entirely. Accordingly, I am not persuaded in considering the conduct involved in the present offending that there is the type of causal connection that would have the effect of reducing his moral culpability."
2. Counsel for the applicant (who was also counsel in the sentence proceedings before Conlon SC ADCJ) stated that the submissions made on behalf of the applicant, to which his Honour referred in the extract above, relied on the evidence of psychologists Mr Sheehan and Ms Butcher. Counsel relied on the following opinion of Ms Butcher: "JL demonstrates average cognitive functioning and below average adaptive functioning. JL's adaptive functioning results cannot therefore not be explained by global deficits in cognitive functioning, but can however be explained by both developmental and mental health difficulties. JL meets criteria for a diagnosis of ASD (Level 2). In regards to his personality, results indicate a history of trauma… along with a range of social difficulties. Given JL's MACI results which lead to a series of follow-up testing, complex PTSD, disassociation, and prodromal features for psychosis were indicated, as well as a high probability of JL developing a disassociative condition in the future."
3. Counsel relied on the following opinions from Mr Sheehan: "[14] JL's history of psychopathology is well documented, having been under the longitudinal care of paediatricians and psychiatrists since entering state care in middle childhood. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Post-Traumatic Stress Disorder (PTSD), adjustment disorder with anxiety/depression… … [16] During interview with me, JL's ADHD was immediately observable and undermined the continuity of interview. I agree with the diagnosis of complex PTSD, with early family violence and neglect having affected JL in enduring ways that have affected his development, his attachment, his way of dissociating/shutting down/avoiding stressful stimuli, his memory, his autonomic arousal (being quick to hyperarousal and outburst, poor concentration, recklessness). JL remains limited in his ability to discuss the details of his early trauma, tending to shut down and seek to end interview when pressed. I agree with the diagnosis of ASD (without accompanying intellectual impairment or language impairment), given JL's persistent deficits in communication/social interaction, restricted/obsessive interests, sensory sensitivity and food restriction, with these symptoms being stable over time and causing significant impairment in functioning. It is common for this diagnosis to be made later in development (such as in JL's case) as the absence of social sophistication becomes increasingly evident relative to peers over time. … [20] The evidence is that JL's sexual behaviour has shown signs of disorder for some years, sufficient to have resulted in referral to the New Street program in 2020. He is too young to be diagnosed with paraphilia, and his behaviour is more indicative of disinhibition, role violation and absence of boundaries as opposed to a specific deviant interest. It remains to be seen as to whether his disinhibited sexual behaviour will continue in adulthood or remain contained to his adolescence. … [26] JL is a 16 year old boy who is currently charged with sex offences against a stranger in her home, committed in March 2022, when JL was aged 14 years. The offence was impulsive and spontaneous, committed whilst subject to bail and managed under tight supervision, on a background of recorded sexually disinhibited behaviour in care settings. His own history is one of significant early deprivation and trauma, undermining his development in important domains of attachment, emotional regulation, impulse control, moral development and accountability. The influence of early trauma is blurred against his neurodevelopmental disorders (ADHD and ASD), which have also influenced his impulsivity, undermined his capacity for empathy (failure to emotionally engage with experience of others) and judgement. These features have impaired JL in ways that have sabotaged his home care arrangements, resulting in institutional care. These features have also likely contributed to his current offending in material way (impulsivity, acting out, poor appreciation of roles/boundaries, lack of empathy or recognising emotions of others) but cannot account for his actions entirely."
4. Counsel for the applicant relied on the statement of principles in Director of Public Prosecutions (Cth) v De La Rosa [citations omitted]: "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence."
5. Counsel also relied on DB v R [2023] NSWCCA 323 wherein Lonergan J (Simpson AJA and Dhanji J agreeing) stated: "52. The question for consideration is not whether there was a "causal link" between the mental health condition and the offending, but whether the mental health condition contributed to the commission of the offence in a material way. 53. I agree with and adopt the observations of Button J in Moiler v R [2021] NSWCCA 73: '[59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.' 54. The sentencing judge posed a higher bar than is required for the mental health of the applicant to be considered as a possible basis for reduction in moral culpability, and rejected, without adequate reasoning the only evidence that could validly answer that question."
6. Counsel submitted that his Honour applied the wrong test or, having seemed to accept Mr Sheehan's evidence, did not seem to give any weight to it and did not deal with Mr Sheehan's reasoning about how the applicant's mental conditions contributed to his offending in a material way.
7. The Crown submitted that Conlon SC DCJ applied the correct test to Mr Sheehan's opinion. The Crown submitted that it was open to his Honour to find that the conduct in JL's offending of breaking into the victim's home and sexually assaulting her was not explained by his conditions, but was related to his deviant sexual behaviour, which had also been referred to by Mr Sheehan. The Crown submitted that the applicant's difficulties with social interactions with his peers were far removed from his offending.
8. The Crown relied on the decision of Aslan v R [2014] NSWCCA 114 at [33]-[35] wherein Simpson J (as her Honour then was) said: "This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa… … It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."

Consideration of Ground 1(a)

1. There was a wealth of evidence about the numerous mental conditions experienced by JL, and the effects they had on his behaviour. His Honour focused on some of the features Mr Sheehan had referred to in JL's conduct, but narrowly. His Honour seemed to place weight on Mr Sheehan's opinion that those factors identified in his Honour's reasons could not account entirely for JL's actions. Mr Sheehan had expressed his opinion that the features of JL's conditions likely contributed to his offending in a material way, using the language of De La Rosa. In finding that he was not persuaded that there was a causal connection between the features he focused on and the offending, I am of the view that his Honour applied the test at a higher level than was required, as explained in De La Rosa and DB.
2. Error has been established in respect of Ground 1(a).

Ground 1(b)

1. In support of Ground 1(b) counsel submitted that his Honour failed to address the submission made to him that the applicant's mental conditions meant that his time in custody was more onerous, relying on Mr Sheehan's opinion at paragraph 29 of his report: "I note that while JL is generally able to work within the routines and rules of detention, he is managed in the Extra Support Unit (ESU) and struggles interpersonally in the group environment, as he did in group care settings in the community. His poor ability to navigate the social aspect in detention (such as disclosing his offences to other detainees) is likely to generate ongoing problems for JL in institutional settings and is a reason why his experience of custody will be more onerous relative to detainees/inmates who do not have his constellation of disorders."
2. Counsel submitted that his Honour seemed to accept that part of Mr Sheehan's report, but only took it into account in finding special circumstances pursuant to s 19 of the Children (Criminal Proceedings) Act, whereas the applicant relied on it more broadly.
3. His Honour referred to that paragraph of Mr Sheehan's report and then said "I am more than satisfied that the offender remains vulnerable on account of his 'constellation of disorders' as described by Mr Sheehan." His Honour then took into account some other matters and made a finding of special circumstances pursuant to s 19(4).
4. The Crown submitted that his Honour took into account the applicant's mental health conditions in making the findings of special circumstances in terms of the length of the applicant's non-parole period and that it would be served in juvenile detention.

Consideration of Ground 1(b)

1. Mr Sheehan explained that the effects of the applicant's disorders made his experience of juvenile detention more difficult. In making a finding that the applicant should serve his non-parole period in juvenile detention, his Honour did not respond to the submission made to him. Therefore error has been established in respect of Ground (1)(b).

Ground 2: His Honour erred by failing to properly have regard to the applicant's history of significant childhood deprivation and trauma in assessing his moral culpability and the significance of general deterrence

1. A submission was made to his Honour that: "…the offender's subjective circumstances enliven the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571 in mitigation in a significant way in that they are causally connected with the offending behaviour as outlined by Mr Sheehan above, and significantly reduce the offender's moral culpability and moderate the weight to be given to personal and general deterrence" referring to Lloyd v R [2022] NSWCCA 18 at [32].
2. Counsel for the applicant submitted that his Honour failed to deal with that submission and failed to make any finding in accordance with Bugmy principles. Counsel submitted that his Honour only took the applicant's disadvantaged and dysfunctional early childhood into account in finding special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 to reduce the non-parole period from the statutory ratio, but did not take those factors into account in respect of moral culpability and general deterrence.
3. Counsel relied on the report of Mr Sheehan, including those parts of the report which have been extracted already, and paragraphs 5 and 6 of the report wherein Mr Sheehan recorded that JL told him of early memories of being exposed to violence in the home, substance use problems in the home, domestic violence, neglect, hunger and lack of supervision, being made a ward of the State at age seven or eight and instability of care placements.
4. The Crown submitted that his Honour referred in detail to the evidence about the applicant's early childhood and its effects, as set out by Mr Sheehan, and took account of the applicant's disadvantaged and dysfunctional early childhood to significantly reduce his non-parole period. The Crown submitted that although his Honour did not referred to moral culpability or state that because of applying the Bugmy principles he had reduced the applicant's head sentence it should be inferred that he did.

Consideration of Ground 2

1. His Honour stated: "I, of course, accept that the offender had a significantly disadvantaged early childhood where the family home was clearly dysfunctional, resulting in the unfortunate consequence of him being removed at seven or eight years of age and being made a ward of the state."
2. His Honour then referred to s 6 of the Children (Criminal Proceedings) Act.
3. Later in his remarks his Honour said: "I am of the view that the offender's disadvantaged and dysfunctional early childhood which had made him a ward of the state, combined with his developmental disorders, provides sufficient reason to make a finding of special circumstances so as to vary the statutory ratio [of the aggregate non-parole period to the aggregate sentence]."
4. His Honour did not refer to moral culpability or general deterrence in connection with the applicant's disadvantaged and dysfunctional childhood. The only reference to moral culpability in the remarks on sentence was in response to the submission about the applicant's mental conditions.
5. Other than in respect of reducing the aggregate non-parole period, his Honour did not explain how his acceptance of the applicant's disadvantaged early childhood, dysfunctional home and being made a ward of the state was taken into account in the exercise of his sentencing discretion.
6. In failing to deal with the submission made to him on behalf of the applicant, when there was an abundance of evidence which his Honour accepted, his Honour erred. Ground 2 is made out.

Ground 3: His Honour erred in failing to properly have regard to the applicant's youth in assessing his moral culpability and the significance of general deterrence

1. Counsel for the applicant submitted that his Honour did not address a submission made to him that the applicant's: "… young age at the time of offending significantly reduces his moral culpability because it is also causally connected to his offending conduct which has all the hallmarks of youth including impulsivity, immaturity, and poor self regulation and otherwise attracts application of the… principles [in s 6 of the Children (Criminal Proceedings) Act and the cases which have considered them]."
2. Counsel submitted that although his Honour referred to s 6, KT v R [2008] NSWCCA 51 and TM v R [2023] NSWCCA 185, his Honour did not make any findings as to the application of the principles to the applicant and his offending. Counsel submitted that his Honour only referred to the applicant's "continuing emotional immaturity" when considering whether to make a finding of special circumstances for the purposes of s 19 of the Children (Criminal Proceedings) Act.
3. Counsel relied on the statement of Yehia J in TM at [65] that: "A young offender's moral culpability may be reduced as a result of a combination of factors which… may include a background of dysfunction and youth, two separate considerations."
4. Submissions in respect of Ground 3 focused on a passage in his Honour's remarks on sentence in which his Honour said: "Mr Watts has also drawn the court's attention to the case of TM v R [2023] NSWCCA 185 and Yehia J's comments at paras 47 and 48: 'The legal principles relevant to the sentencing of young offenders are well-established and have been reiterated in several judgments of this Court. 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.' I accept that numerous decisions of our Court of Criminal Appeal have acknowledged that 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 an allowance will be made for an offender's youth and not just their biological age."
5. Counsel for the applicant submitted that in the last sentence of that passage his Honour stated the law and did not make a finding about the applicant's youth.
6. The Crown submitted that his Honour referred to the relevant principles and authorities and that his Honour was well aware of the applicant's youth.

Consideration of Ground 3

1. From a reading of his Honour's remarks on sentence it is not apparent that his Honour responded to the submission made about the applicant's youth and its impact on his moral culpability. His Honour took into account the applicant's "continuing emotional immaturity" for the purposes of his finding for s 19 of the Children (Criminal Proceedings) Act. He stated in his recitation of the agreed facts that the applicant was 14 years 11 months of age at the date of the offending. The submission made to his Honour about the applicant was broader than that his immaturity should be taken into account as to where he served his non-parole period. His Honour did not make any finding in response to the submission made. I do not read the highlighted sentence in the passage above as referring to the offender, but as stating the law. Therefore, it appears that his Honour did not take the submission into account. Error is established in respect of Ground 3.

Ground 4: His Honour erred by taking into account that the applicant was subject to conditional liberty when assessing the objective seriousness of the offences

1. His Honour assessed the aggravated break and enter offence as slightly below mid range, taking into account that the victim woke to find the applicant lying on her bed, the applicant's physical conduct and threats to the victim, the personal circumstances of the victim, and that the offending occurred in her home.
2. His Honour assessed the sexual assault offence as "just below mid range", taking into account that the offending was opportunistic, persistent, that the victim indicated her distress at not being able to breathe, that the applicant pushed the tip of his penis into the victim's mouth for a short period of time, and the actual bodily harm of a bruise to the victim's breast.
3. His Honour assessed the sexual touching without consent, in which the applicant placed his penis between the victim's breasts and moved it for about 30 seconds before he ejaculated on her chest as serious and degrading, "within about the mid range".
4. The impugned part of his Honour's remarks on sentence in relation to Ground 4 was as follows: "Objective seriousness At the time of the offending as earlier indicated, the offender was subject to conditional liberty and he was also subject to strict supervision in a state facility that was located in the same street as the victim's residence. Breaking a curfew condition, he managed to leave the facility without detection. Whilst there was little planning involved, he was clearly determined to break into the home. It would appear the Crown has accepted on the balance of probabilities the offender's explanation as expressed to Mr Patrick Sheehan, psychologist, namely his intention was to obtain car keys and presumably steal the victim's car."
5. Counsel for the applicant accepted that the applicant being on conditional liberty in the form of bail at the time of the offending was relevant to sentencing the applicant, but that it was an error to take that factor into account in the assessment of objective seriousness. Counsel submitted that his Honour assessed the objective seriousness of each offence as greater than he otherwise would have by improperly taking into account that factor. He relied on the statement of Simpson AJA (Button and Weinstein JJ agreeing) in Bazzi v R [2024] NSWCCA 35 at [22]: "That an offence is committed whilst the offender is on conditional liberty is a relevant, and, indeed, a mandatory, consideration for sentencing purposes: Sentencing Procedure Act, s 21A(2)(j). It is relevant, at least, to the assessment of moral culpability and prospects of rehabilitation. But it does not bear upon the assessment of the objective seriousness of the offence, and it is necessary that sentencing judges guard against its intrusion into that assessment, in order to ensure that the sentence is not inflated beyond what is "appropriate to the gravity of the crime considered in light of its objective circumstances".
6. The Crown submitted that the impugned remarks by his Honour were introductory only and no finding was made that the applicant being on conditional liberty was a factor in assessing the objective seriousness of the offences. However, the Crown accepted that if the Court found his Honour did so then that would be an error.

Consideration of Ground 4

1. Considering the structure of the impugned paragraph, the placement under the heading "objective seriousness" and that after that paragraph his Honour went on to assess the objective seriousness of each offence in turn, it is difficult to see how his Honour did not take that factor into account as relevant to the objective seriousness of the offences.
2. Error has been established in respect of Ground 4.
3. Errors having been established, the court must resentence the applicant: Kentwell v The Queen (2013) 252 CLR 601; [2014] HCA 37. I will take the submissions made in respect of Ground 5 into account in resentencing the applicant.

Resentencing the applicant

1. In resentencing the applicant I take into account the principles set out in section 6 of Children (Criminal Proceedings) Act, particularly, as relevant to this sentencing exercise: (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance … (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind … (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
2. I also take into account the principles stated in KT v R by McClellan CJ at CL, which have been repeated and applied in subsequent decisions of this Court (citations omitted): "[22] …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…. [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… the weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence. 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. [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…"
3. In resentencing the applicant I have taken into account the maximum penalties for each offence, the agreed facts and the effect on the victim as disclosed in her Victim Impact Statement. I do not treat the latter as an aggravating factor.
4. In assessing the objective seriousness of the offence of breaking and entering and intimidating the victim I take into account the means used to break in, the time of night that it occurred, that the victim woke to find the applicant lying on her bed, the threats which constituted the intimidation and the distress experienced by the victim. Having regard to the range of offending which can be encompassed by this offence provision I assess this offence as below the mid range of seriousness.
5. In assessing the sexual assault offence I take into account that the offence appears to have been spontaneous rather than planned, that it occurred when the victim had already expressed her distress at the applicant's presence in her home, that the offence occurred in her home, the nature and duration of the act, that is that the tip of the applicant's penis penetrated the victim's mouth for a short time, and the actual bodily harm of a bruise on her breast. I assess that offence as below the mid range of seriousness.
6. In assessing the objective seriousness of the sexual touching offence the nature and duration of the act make this is serious form of sexual touching. I assess it as in the mid range of seriousness.
7. I take into account the applicant's young age at the time of the offences, his diagnosed mental conditions and his dysfunctional and disadvantaged childhood, the effects of which have continued into his adolescence. The combination of the applicant's young age, his mental conditions and his disadvantaged upbringing significantly reduces his moral culpability for the offending and the weight to be given to general deterrence.
8. I take into account that the applicant was subject to conditional liberty in the form of bail when he committed the offences.
9. It is a difficult sentencing exercise to balance the offending conduct, its effect on the victim, and the applicant's strong subjective circumstances.
10. The applicant relied on two affidavits on resentence, from Kelly McGillivray-Brown, a psychologist at the Acmena Youth Justice Centre and an affidavit of his solicitor which annexed a psychological report from Ms McGillivray-Brown, dated December 2023. The affidavit of Ms McGillivray-Brown, dated 21 October 2024, updated her previous report. She reported that since JL was transferred back to Acmena in August 2023, he had engaged in approximately 56 counselling sessions with her, that he has shown a willingness to engage regularly with the centre psychologist to address the offence, acknowledging the offence as wrong and showing a willingness to change his offending behaviour and develop his social skills, that he engages in education and is compliant with medication.
11. The Crown relied on an affidavit which annexed misbehaviour reports in relation to the applicant in detention since he was sentenced in September 2023. Some involved aggressive behaviour or language to staff, some involved negative behaviours with other detention centre inmates, one involved "sneakily passing biscuits attempting to share food" with another young person.
12. In her report of December 2023 Ms McGillivray-Brown reported that the applicant described struggling socially at school, with reports of him displaying challenging behaviours and experiencing bullying, but that he generally behaves respectfully and engages in his studies. She said the applicant: "…has exhibited compliant behaviour during his readmission… staff records and observations have indicated that he usually responded well to staff, completed chores, used manners, interacted well with other detainees and utilised his time productively reading or engaging in leisure and/or educational programs. [He] has demonstrated the capability to follow unit routines, centre rules and staff directions… On occasion, [he] requires reminders regarding appropriate behaviours, especially when he is dysregulated. However, these interventions are less frequent, and the behaviours have typically been relatively minor compared to previous admissions."
13. Those reports reflect the applicant's youth, immaturity, and aspects of his diagnosed conditions. They and Mr Sheehan's report make clear that the applicant's rehabilitation will require a deal of time, treatment, and focus on his risk factors for reoffending.
14. I note that he now has the support of his father who was present in court during the hearing of the appeal.
15. As his Honour did, I apply discounts of 25% for the pleas of guilty to the sentences I will indicate for the individual offences. I also take into account the applicant's expressions of remorse to Mr Sheehan as genuine.
16. Because of the applicant's need for intense supervision and treatment to promote his rehabilitation, I find special circumstances to reduce the aggregate non-parole period of the aggregate sentence I will impose below the statutory ratio. The aggregate sentence will involve a modest notional accumulation of the individual sentences to reflect that the offences occurred close in time as part of the one course of conduct. The total sentence reflects the total criminality and the applicant's personal circumstances.
17. For the same reasons his Honour found, that the applicant is vulnerable on account of his mental conditions, that the only available educational or therapeutic programs suitable to his needs are available in detention centres, and that if the applicant were committed to a correctional centre there would be an unacceptable risk of him suffering physical or psychological harm, I find special circumstances justifying detention of the applicant as a juvenile offender after he turns 18, pursuant to s 19(3) of the Children (Criminal Proceedings) Act, and direct that the whole term of the sentence is to be served as a juvenile offender.
18. I indicate the following sentences which would have been imposed for the individual offences if the Court was not proceeding by way of an aggregate sentence:

• For the breaking and entering and intimidating offence contrary to s 112(2) of the Crimes Act 3 years imprisonment.
• For the sexual assault offence contrary to s 61J Crimes Act and taking into account the offence on the Form 1, 5 years imprisonment.
• For the sexual touching offence contrary to s 61KC(a) of the Crimes Act 18 months imprisonment.

1. The aggregate sentence is 6 years imprisonment. The non-parole period is 3 years 6 months imprisonment. I direct that the whole of the sentence is to be served as a juvenile offender.
2. Therefore I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Conlon SC ADCJ on 20 September 2023. 4. In lieu thereof sentence the applicant to an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years 6 months imprisonment to date from 17 March 2022. The non-parole will expire on 16 September 2025. 5. Direct, pursuant to s 19(1) and (3) of the Children (Criminal Proceedings Act 1987 (NSW), that the applicant serve the whole of the sentence as a juvenile offender.

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: 20 December 2024