R v AV

District Court of NSW|2022-04-27

Judgment

The offender comes before the court having pleaded guilty to: 1. Four counts of indecent assault upon a person under the age of 10 years. This is conduct contrary to the provisions of section 61M(2) of the Crimes Act 1900 (NSW) ('The Crimes Act'). The offence carries a maximum penalty of 10 years imprisonment. These are counts 1, 2, and 14 on the Indictment. 2. 10 counts of sexual intercourse with a child under the age of 10. This is conduct contrary to the provisions of section 66A of the Crimes Act and carries a maximum penalty of 25 years imprisonment (Counts 3-7; 9-10; 12, 13 and 16). 3. One count of inciting a person under the age of 10 to commit an act of indecency with towards that or another person. This is conduct contrary to the provisions of section 66O(2) of the Crimes Act and carries a maximum penalty of 7 years imprisonment (Count 15). 4. Four counts of sexual intercourse with a child between the ages of 10 and 14. This is conduct contrary to the provisions of section 66C(1) of the Crimes Act. It carries a maximum penalty of 16 years imprisonment (Counts 17-19 and 23).
The offender was in respect of each count a juvenile at the time of his offending which for relevant purposes has two important effects, namely: 1. That an Intensive Corrections Order is not available as a sentencing option; and 2. That there are no applicable standard non-parole periods.

The Discount Applicable to the Defendant's Pleas

The offender entered pleas of guilty to the various counts at different times and the parties were in agreement as to the appropriate discounts to be applied to the respective sentence for each count, to reflect the utilitarian value of those pleas.
The parties were in agreement that certain counts should receive a 25% discount while other counts should receive a 10% discount.
I shall set out the agreed discounts later in these reasons.

Agreed Facts

The matter proceeded by way of agreed facts. I shall set these out.
The offender, AV, was born in April 1989. In 2000 at age 11, AV migrated from New Zealand to Australia. The victim was born in December 1995. The offender is 6 years, 7 months and 18 days older than the victim.
The victim and his family moved to Dulwich Hill in about 1996 and lived there until early 2007. The victim has two older brothers, a younger brother and a younger sister. When living at Dulwich Hill, the victim shared a bedroom with one of his brothers. It varied as to which brother, but it was only two of them staying in the room at any one time. Mostly, there was only one large bed in the room that the brothers shared.
The victim's family and offender's family are known to each other. The families both come from the same village in Samoa. They are also part of the same church.
The victim was withdrawn and considered a loner as a child. He would not interact with others unless they initiated contact.
The offender enrolled in High School on 29 January 2002. He was 12 years old at the time. He became friends with the victim's older brothers. He then started to come over to the victim's house, staying over almost every weekend. Often, the offender's cousins, who were also known to the family, would also stay. The offender and his cousins would not stay in the victim's room.
One night, in 2004, the offender was at the victim's house. The offender was 14 or 15 years of age and the victim was 8 years of age. They were both lying on the lounge watching TV, with the victim lying on his side and the offender lying behind him. They had a blanket over the two of them. The offender placed his hand inside the victim's back pocket of his pants. It felt foreign to the victim.

Count 1: Indecent assault victim under 10 (Section 61M(2) Crimes Act 1900)

One night, a few days or weeks later, the victim and offender were lying in almost exactly the same position on the lounge with a blanket over them. The offender again put his hand in the victim's back pocket. After some time, the offender said something like, 'I'm cold'. He then put his hand under the victim's pants and underwear and squeezed his buttocks. He then slid his hand down between the victim's legs and touched him around his thighs. The offender said something like, 'your thighs are so warm'.

Count 2: Indecent assault victim under 10 (Section 61M(2) Crimes Act 1900)

The victim and offender were watching TV for some time. The offender's hands kept wandering inside the victim's pants from his buttocks to the back of his thighs. The offender then moved his hands to the front of the victim's pants and grabbed him on the genitals. He initially cupped the victim's testicles and penis. He left his hand there for maybe a few minutes. He then started to tug on his penis, possibly using his thumb and index finger. The victim thought it was unusual. He isn't sure how it stopped that night.
The offender left high school on 6 August 2004. Shortly after that, the offender moved in with the victim's family. The offender was 15 when he left that school and the victim was 8.
When the offender first moved in, he slept in a bedroom with two of the victim's other brothers. The living room was later partially converted into a bedroom used by whoever fell asleep there.
Over the next year or so, the offender continued to touch the victim and began doing other things. This was in 2004 or 2005 when the victim was 8 or 9 and the offender was 15 or 16.
One of the first incidents that the victim can recall was what felt like in the middle of the night. It was likely in 2005 when the victim was 8 or 9 and the offender 15 or 16.

Count 3: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

The offender came into the victim's room and said something like, 'keep quiet, we need to try something new, it's like before but better'. The victim got out of bed and the offender lay down on the bed. The offender took off his pants and underpants and explained to the victim that he should perform fellatio on him. The victim can't remember how he explained it.
The victim performed fellatio on the offender. The offender complained and said, 'don't use teeth'. The victim complained that his jaw hurt and that he 'couldn't open my mouth that wide'. The victim can't recall how long it happened for, however the offender ejaculated inside his mouth and told the victim to swallow it, which he did.
The offender came into the victim's room in very similar circumstances over the next month or so on another 4 or 5 occasions and would have the victim perform fellatio on him.

Count 4: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

On maybe the second or third of those occasions, while the victim was performing fellatio on the offender at the offender's request, the offender got the victim to stop and said something like, 'I told you to stop using teeth, I will show you'.

Count 5: Sexual intercourse with child under 10, (Section 66A Crimes Act 1900).

The offender and victim swapped positions and the offender laid the victim on the bed. The offender then performed fellatio on the victim. The victim does not remember feeling any sexual pleasure.

Count 6: Sexual intercourse with child under 10, (Section 66A Crimes Act 1900).

The offender then got them to swap positions and had the victim perform fellatio on him again.
On some occasions that the offender had the victim perform fellatio, the offender would ejaculate into the victim's mouth and the victim would swallow. He would sometimes place his hand on the victim's head and force him towards his penis.
On each occasion, the victim's younger brother was asleep in the bed. He would remain asleep but would move or roll over once or so. If he moved, the offender would tell the victim to stop. They would wait a few seconds before the offender would have the victim keep going.
At the end of each assault, the offender told the victim that he loved him.

Incident 4

One night, the offender came into the victim's room in a similar way. Again, this was likely in late 2004 or 2005 when the victim was most likely 9 and the offender 15 or 16.

Count 7: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

The victim began performing fellatio on the offender.
The offender then said something like, 'there is something else we need to try'. The offender got the victim to lie down on the bed and his pants were removed. The offender moved down towards the end of the bed and placed the victim's legs onto his shoulders.

Count 8: Indecent assault victim under 10 (Section 61M(2) Crimes Act 1900) (FORM 1)

The offender then used his tongue to lick and spit on the victim's anus.

Count 9: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

He then used a finger and inserted it in and out of the victim's anus. The offender said, 'I am getting you ready'. He also asked, 'does it hurt?'
The victim said, 'yes' and the offender told him to 'stop pushing and relax'.

Count 10: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

The offender then had the victim continue performing fellatio on him.
Sometimes the victim's family would go out and leave the victim and the offender alone. The victim recalls knowing what was going to happen to him. The victim recalls that sometimes he would elect to stay and others the offender would tell him to tell his family he wanted to stay home and reassure them that he, the offender, would look after him.

Incident 5

One such night, the offender and victim were left alone in the house. This was the first time that the offender abused the victim while they were alone. When the victim's family left the house, the victim knew what was going to happen to him.
The victim was alone in his room with the lights on. The offender came into the bedroom and turned off the lights. He came up to the victim and said, 'hey' and kissed him on the lips.

Count 11: Indecent assault victim under 10 (Section 61M(2) Crimes Act 1900)

The victim ended up lying on the bed with the offender on top of him kissing him. He was trying to get the victim to kiss with his tongue. The offender would latch onto the victim's tongue and kiss him. He told the victim that this is how you kiss.

Count 12: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900)

Counts 12 and 13 occurred simultaneously.

Count 13: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

The offender then said something like, 'there is something we need to try' and 'let's suck each other off'. The offender positioned himself on top of the victim and had them do fellatio on each other in the '69' position. The victim's head was down the bottom of the bed where his feet would normally be.

Count 14: Indecent assault victim under 10 (Section 61M(2) Crimes Act 1900)

Counts 14 and 15 occurred simultaneously.

Count 15: Incite act of indecency victim under 10 (Section 61O(2) CrimesAct 1900)

The victim doesn't remember what the offender said but it signalled for them to 'rim' each other while still in that position. 'Rimming' is a term for licking or kissing the anus of another person.
The victim said, 'It tastes like poo, I don't want to do it'. The offender said, 'But I am doing it too, it will get easier'. They then continued 'rimming' each other.

Count 16: Sexual intercourse with child under 10 (Section 66A Crimes Act 1900).

After a while, they moved positions. The victim turned around so that his head was now up at the other end of the bed, although he was still lying on his back. The offender moved down the bed. The offender said something that the victim understood to mean that he was going to put his penis inside him.
The offender was kneeling and had moved the victim's legs towards his shoulders. He held the victim's legs around the ankle area. The offender put his penis inside the victim's anus. He did this slowly. He asked the victim a number of times, 'Do you feel ok'. The victim recalls it hurting very badly. The offender eventually inserted his penis all the way and kept saying, 'don't push, just relax'. The victim tried to relax but it kept hurting.
The offender moved his penis slowly in and out.
The offender then changed positions, lying down on the bed and telling the victim to get on top of him. The offender was lying with his back on the bed and the victim got on top of him. The offender had his hands around the victim's hips. He moved the victim up and down while his penis was inside the victim's anus. The offender ejaculated inside the victim and told the victim that he loved him. He then left the room.
This incident was the longest period of abuse up until that date. It is likely that the victim was 9 and the offender was about 15 years of age. It was likely in late 2004 or 2005.
Over a period of time, the offender continued to go into the victim's room in the middle of the night. He continued to get the victim to perform fellatio on him but would not penetrate him when the victim's younger brother was in the room.
The offender would penetrate the victim when the offender and the victim were alone in the house, or maybe only one of the victim's brothers was there.
More than once the offender got the victim to be on all fours. The offender penetrated him from behind, engaging in penile/anal intercourse. The offender ejaculated inside him. This would hurt and the victim would often cry.

Incident 6

One night, after a number of occasions when the offender and victim were both alone in the house, the offender came into the victim's room. The offender said something like, 'let's try something new, you will enjoy it'. This likely occurred in 2005 or 2006 when the offender was 16 or 17 and the victim was 9 or 10 (taken to be 10)

Count 17: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900 (relying on s80AF Crimes Act 1900)).

The offender positioned himself lying down and guided the victim. He gave the victim a lot of instructions. The offender had the victim on top of him, lying backwards and holding himself up with his arms. The offender inserted his penis into the victim's anus really fast and it was painful for the victim. The victim told him that it hurt. The offender said something like 'wait hang on' and he repositioned them.
The offender penetrated the victim's anus with his penis again but it wasn't as painful for the victim this time. The victim said, 'I feel it'. The offender pushed his penis in and out of the victim's anus. The victim then orgasmed. The offender kept the victim in the same position so he could finish. The offender said, 'this is love and this is what love is'. The victim was confused but thought that it felt good on that occasion.
During this period of time, likely in 2006 when the victim was 10 and the offender 16 or 17, the offender came into the victim's room on multiple occasions. The offender had the victim do fellatio and rimming while his younger brother was next to him. The offender and victim were at home possibly once or twice a week. On most of these occasions, the offender had sex with the victim. The victim felt better and often orgasmed.
The victim started to believe it was normal and that they were in love. The victim did not need much instruction as he knew from the offender's cues as to what they were going to do. The victim did not penetrate the offender and does not remember orgasming from the offender giving him fellatio.
The victim cannot particularise these incidents further.

Count 18: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900 (relying on s80AF Crimes Act 1900)).

On another occasion, likely in 2005 or 2006 when the victim was 9 or 10 (to be taken as 10) and the offender was about 16, the offender was having penile/ anal intercourse with the victim. They were in the victim's room and were home alone. There was a knock at the front door.
The victim and offender quickly dressed and both went to the front door to answer it. They spoke to a lady and her daughter who left a box of chocolates for the victim's family. After they left, the offender said to the victim, 'your shirt is inside out' and slapped him. He started laughing. The victim said, 'do you think they know?' and the offender said, 'no'.

Count 19: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900 (relying on s80AF Crimes Act 1900)).

The offender and victim went back to the bedroom and the offender continued to have penile/ anal intercourse with the victim until he finished.

Count 20: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900 (FORM 1))

On another occasion, likely in 2006, when the victim was 10 and the offender was 16 or 17, the offender and victim were sitting in the living room. Other family members were at home. The offender led the victim to the dining room which had been converted to a bedroom, closed off with a blanket. They lay down, got under the blankets, and got undressed.
The victim lay on his side with the offender 'spooning' him from behind. The offender penetrated the victim's anus with his penis and said 'I love you' during the sexual intercourse. The offender orgasmed and then they stopped.
The offender and victim had sex in the dining room on a number of occasions usually because other people were at home at the time. As well as being closed off, they were in a position that meant that if anyone came into the room they could pretend to be asleep or lying down.

Count 21: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900 (FORM 1)).

On another occasion, likely in 2006 when the victim was 10 and the offender was 16 or 17, the offender and victim were in the victim's bedroom. The bedroom door was shut.
The victim was lying with his back on the bed and the offender was on his knees with the victim's legs in the air. The offender was penetrating the victim's anus with his penis. There was a knock at the door and the offender rolled off the bed, pulling up his underpants. The offender moved quickly from the bed out to the veranda and the victim pulled a blanket over him.
Somebody came into the bedroom, with the victim recalling it may have been his brother. The offender came back into the room and said, 'oh man, I came in to scare [the victim] but you scared me' to whoever it was that came in. The offender and victim didn't do anything else that night.
On another occasion, likely in 2006 when the victim was 10 and the offender was 16 or 17, the offender was on top of the victim. He said something like, 'we have to keep this just between us two'. The victim thought to himself, 'yeah of course'. The victim hadn't thought about speaking to other people about it.
After that, the victim practised jumping off the balcony so he could escape quickly if they were interrupted again.
By the time the victim was 10 or 11, he started to become aware that what they were doing was wrong.

Count 22: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900 (FORM 1)).

At a time after this, in 2006 or 2007 when the victim was 10 or 11 and the offender was 17, the offender was having penile/anal intercourse with the victim. The victim was on the bottom.
The victim said to the offender, 'what we are doing is wrong'. The offender said something like, 'we love each other' and 'Ok I promise this is the last time'.
In January 2007, the victim and his family (including the offender) moved to Punchbowl. The victim was 11 and the offender was 17. The victim continued to share a room, however now had a separate bed to his younger brother.
The victim cannot remember the first time the offender abused him in the new house. However, the offender commenced to have penile/anal intercourse with the offender while his brother was in the bedroom as they now had separate beds.
The offender started having sex with the victim without waking him up first. The victim was a heavy sleeper. On occasion, the offender had already taken the victim's pants and underpants completely off and was penetrating him with the victim's legs in the air before the victim woke up.

Count 23: Sexual intercourse with child 10 - 16 years (Section 66C(1) Crimes Act 1900).

On one occasion in 2007 when the victim was 11 and the offender was 17 or 18 (taken to be 17), the victim woke up to find the offender had already started having penile/ anal intercourse with him. The offender was penetrating him from on top. The victim started a conversation with the offender, saying, 'AV this is really the last time'. The offender said something like, 'yeah, yeah, yeah'.
The victim continued saying that it was the last time. The victim possibly alluded to telling someone and the offender said, 'Don't open your fucking mouth to anyone'. This was all said during the sexual intercourse however the offender then stopped. The offender said it in a quiet but angry tone. The victim became quiet and scared. The offender's tone was then calm, he leant in and said, 'I don't want to hurt you, I love you'. The offender continued to penetrate the victim and then ejaculated inside him.
The victim recalls this as being the first time the offender had been angry with him and states that it almost felt like being told off by a teacher. He felt like he had put himself in this position because he hadn't done anything to stop the offender earlier.
On the next couple of occasions, the victim was very quiet and the offender wouldn't say anything. It felt awkwardly quiet to the victim and he recalls crying silently.
After about a week or so, the offender started talking to the victim again while he was penetrating him. The offender said that he loved the victim and tried to make him laugh.
On other occasions, the offender penetrated him but when the victim didn't say anything, the offender stopped and said, 'I'm not going to stop until you say you love me'.
Within a couple of weeks of when the offender first got angry and the victim stopped speaking to him, the offender began to get more stern. He stopped during sex and said things like, 'I'm not going to stop or finish until you say you love me'. Initially, the victim didn't respond and there was an awkward pause. However, once the victim said he loved him or similar, the offender continued penetration until he finished. The victim eventually ended up 'playing the part' and saying things the offender wanted to hear so he would not stop during the time he was penetrating the victim and so that it would end more quickly.
In 2006 and part of 2007, the offender continued to sexually abuse the victim frequently. It was this time period that the abuse was the most frequent. The offender had the victim perform fellatio on him in the new house but usually this would be in addition to him having penile/ anal intercourse with him during the same night.
Every occasion of abuse in the new house occurred in the bedroom.
The victim recalls that while at Punchbowl, the offender would date or see girls. He recalls that when the offender had a girlfriend, the abuse stopped, but would recommence when they broke up.
The offender moved back to his mother's house in the latter part of 2007. The offender did not abuse the victim after that.
The offender went to prison in April 2008. During the period when the offender was in prison, the victim did well in school. He also had a conversation with his mother during this period where he told her that the offender 'touched me'. He then told her 'he put his penis inside of me' and 'we had sex' or 'he raped me'. He was crying at the time.
The victim also told a few other of his family members during this time. Eventually, there was a family meeting where the victim was asked what he wanted to do about it. The victim had hoped that the family would decide what to do. Nothing helpful came from the meeting.
The offender started going back to church around 2011. The victim was surprised to see him and immediately felt like 'that little kid again'. It felt to the victim like everything came crashing down. It hurt him a lot to see how much the offender was accepted by the victim's family. The victim's mother invited the offender to meet at the family home to tell him that he was not welcome back.
When the offender came to the house, the victim's mother said, 'We know what you've done to our son. Do you have anything to say for yourself?' The offender was shocked but replied, 'I'm so sorry. I know what I've done. It's very bad. I'm sorry. I did some very bad things to [the victim]. I treated… [the victim] so badly.'
The victim's grades started declining at school. Eventually, the victim told his maths teacher that he was abused by a family member. This was in 2012.
The victim's family and people at church advised the victim to keep praying.
The victim reported the matter to police in March 2019.
On 20 September 2019, the victim contacted the offender. This was a telephone call that was lawfully recorded.
During the call, the offender said: 'Like, I know I've ruined your life… I don't think I'll ever forgive myself for, for what happened, and you know, I've been waiting for the right time for us to kind of talk.' 'Like, from, from the first time I done it to the last time I done it. Like, I apologise for that. For the touching, the kissing, the, the sneaking into your room and, the sneaking out and doing it multiple times. Like, I apologise for all that, like, I'll just say that, pretty much for ra, raping you. Or molestering you…' '… I didn't even know, oh, I didn't know how old you were but that doesn't, molest, uh, age doesn't matter, it's the fact that I actually done it to you know that the age difference between was like, 10, 11 years. And, and I went and done that to you on multiple occasions, like, just sneaking into your room knowing that your family's there, your brother's lying next to you and, you know, pretty much just snuck into your bed and started touching you, taking off your clothes and pretty much raping you. And then leaving and then have, what, have the heart to talk to you like nothing happened the next day…' '..I apologise for… from teasing you, calling you gay and all that kind of shit… 'Til the day I started, you know, raping you. You know, everything in between, the touching and kissing, the groping, the grooming. Yeah. The sneaking in and out. I didn't know anymore words after that, but I apologise for that.' '… when I done all these things, all these things to you, I didn't think of the consequences… the repercussions that would happen… like on your life… what I cared about was just me and, you know, my satisfaction. I didn't care about what's gunna happen to you when you grew up.
The offender was arrested by police and interviewed on 24 September 2019. Police initially informed him of the first allegation (when the offender allegedly touched the victim while they were lying on the lounge), indicating it wasn't possible as the house was 'jam packed' with people. The offender also stated, 'I'm not gay. Second of all, I don't like boys'.
The offender denied further allegations of fellatio, of 'licking his butthole', 'rimming' and 'anal penetration'. When asked if he did enter the victim's bedroom at night, the offender stated that he did but it was to use the computer.
The offender told police that he apologised for 'everything' when confronted by the victim's mother because he knew that the victim was gay and wanted to commit suicide because he didn't want to tell his dad that he was gay as his dad is a Minister in the church. He later said that the victim's mother hadn't told him exactly what he had done but he just apologised. He further said that he apologised because he didn't want the victim to commit suicide.
He also told police that he apologised in the recorded conversation with the victim by apologising for 'everything that a, a rapist, a child molester that I know of, and I just apologise, apologised for everything… Only because I thought I was doing the right thing. I wanted to put this guy's mind at ease, I don't want to him to commit suicide…'.
The offender said the following towards the end of the interview: 'Like, the same thing that apparently that I did to [the victim] is the same thing that his dad was doing to me when I stayed there'. 'that I used to do sexual favours for him'. 'like, touch his private parts'
When asked if he adopted that behaviour with [the victim], he said, 'Not to the certain extent but yeah' and further expanded by saying, 'And, yeah, I admit to touching and kissing him and all that kind of stuff'.

Sentencing Principles Relating to Young Offenders.

The parties were in agreement as to the general principles applicable to the sentencing task where the offender is young.
In JA v R [2021] NSWCCA 10, Davies J (with whom Basten JA and Johnson J agreed) recently set out principles relevant to the sentencing of children. In particular, at [53]-[56] His Honour highlighted principles derived from three earlier CCA decisions. His Honour noted: 1. The weight to be given to an offender's youth does not vary depending upon the seriousness of the offence (at [53], quoting R v Hearne [2001] NSWCCA 37 at [25]) 2. "…. 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" at [54], (quoting BP v R [2010] NSWCCA 159) 3. "…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" (again quoting from BP v R [2010] NSWCCA 159 at [53]).
At paragraph [56], His Honour drew attention to the observations of Kirby J in R v Elliott and Blessington [2006] NSWCCA 305 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 R [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 JA at [61] the Court suggested an approach for cases such as the present which involve the sentencing of an adult many years after the commission by them of an offence as a juvenile. The Court suggested that a sentencing judge put himself or herself in the position of a sentencing judge hypothetically sentencing the offender 18 months after the offence. Such an approach, the Court suggested, focuses the mind of the judge on the principles set forth in cases such as KT and RP to which I have referred.
Finally, I should add that the parties were in agreement that I must sentence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the commission of the offences (s25AA(1) of Crimes (Sentencing Procedure) Act 1999 ('the Sentencing Act')).
I have attempted to apply these principles to the sentencing task.

Assessing the Objective Seriousness

The Crown approached the task of assessment of the objective seriousness of the offending by first referring to facts or factors which it contended were common to all counts. The offender placed many of these matters in issue. I shall set out the Crown's submissions, the position of the offender, and my conclusions below.

Age Difference

The Crown submitted that the offender was 6 years 7 months and 18 days older than the victim, which I took to connote that the age difference was an aggravating factor.
The offender submitted that the age difference was in fact small in the context of this type of offending, and this was a matter mitigative of objective seriousness.
I accept this submission.
Gratification
The Crown submitted that the offending took place solely for the offender's own gratification. The Crown submitted that the offender admitted this in a recorded telephone call when he said, "What I cared about was just me and, you know, my satisfaction. I didn't care about what's gunna happen to you when you grew up".
The offender submitted that caution should be applied to using statements made by the offender in the context of a pretext phone call as an adult, in order to interpret what was in fact occurring in his mind as a confused 14-year-old.
Given the unequivocal nature of what was stated by the offender I do not accept this contention.

Duration of offending

The Crown submitted that the offending took place over 4 years.
The offender submitted that objective seriousness should be assessed in respect of individual offences, rather than by reference to the overall duration of the offending.
I accept this submission.
Age and Vulnerability of the victim
The Crown submitted that the victim was a very young vulnerable child, particularly when the offences started. The Crown however accepted that this factor is an ingredient in all the offences and warned about allowing the question of the victim's age to be double counted.
The offender submitted that the offender was in fact at the higher end (8 or 9) of the relevant age category (under 10) at the commencement of the offending which he submitted lessens the objective seriousness.
I agree with this submission especially in respect of the s66M(2) offences, and indeed generally. I take this view as all of the offences are offences against children.

Isolated or impulsive offences

The Crown submitted that none of the offences were isolated or impulsive, but instead constituted a long period of exploitation and abuse.
The offender submitted that objective seriousness should be assessed in respect of individual offences. He submitted that where a series of offences are committed, as is commonly the case, the relevant offence will never be "isolated". The offender further submitted that caution should also be applied when considering use of the word "exploitation" which, if taken to imply a well-considered motive, is not consistent with the offender's age and lack of maturity and development.
I accept this submission.

Acting out Pornographic Acts

The Crown submitted that the offender told forensic psychologist Patrick Sheehan that he "used the [victim] as a target to act out sexual acts that he had seen on movies or pornography".
The offender submitted that the content of the reports of Mr Sheehan and Dr Ellis needed to be considered in full, as aids to understanding the context in which the offending occurred. The offender contended that, on balance, the context they provide points to a lessening of culpability.
I do not accept this submission and accept that what the offender told Mr Sheehan represented the fact. I shall deal with the histories provided by the offender to Mr Sheehan and Dr Ellis later in these reasons.

Coercion

The Crown submitted that the offending involved coercion where the offender exploited the age difference between himself and the victim.
The offender referred to his earlier arguments relating to age difference and duration of offending outlined above.
I accept the offender's submission.

The Victim's Sexual Naivety

The Crown submitted that the offences took advantage of the victim's sexual naivety and the fact that he was unaware of the wrongful and aberrant nature of the conduct.
The offender submitted that to the extent it can be said that the offender took advantage of the victim, this is a feature common to most if not all instances of such offending. In the case of the offender, his age and immaturity suggests a lack of sophistication and self-understanding in relation to his own motivations. The offender went on to submit that his status as a juvenile suggests a lessening of culpability relative to an adult offender.
I agree with this contention.

Ongoing Sexual Activity and Silence

The Crown submitted that the offender habituated the victim into a course of ongoing sexual activity and prevailed upon him not to tell anyone about the abuse, teaching the victim to understand what he was doing as "love" and using his greater age to ensure the victim's silence.
The offender submitted that the relevant conduct described needs to be considered in respect of any individual offence. He submitted that the Crown's characterisation in any event was not accurate for many of the offences. To the extent there was such conduct, it is suggested that it appears to have been less sophisticated than might usually be the case.
I agree with this contention.

Frequency of Sexual Abuse

The Crown submitted that the sexual abuse was frequent. In 2006 the offender and victim were at home possibly once or twice a week. On most of these occasions the offender had sex with the victim. In 2006 and part of 2007 the abuse was most frequent.
The offender referred to his argument relating to the duration of sexual offending, namely, that the objective seriousness of each offence should be considered individually.
I accept this contention.

Increased severity of conduct

The Crown submitted that the offending conduct increased in severity over time.
The offender again relied on his argument relating to the duration of sexual offending, namely, that the objective seriousness of each offence should be considered individually.
I accept this submission.

Offender did not voluntarily desist from offending

The Crown submitted that the offender did not voluntarily desist from his offending, instead the offences stopped because the offender moved back to his mother's house in the latter part of 2007 and in 2008 the offender was incarcerated.
The offender submitted that the offender did voluntarily desist from offending. He submitted that the offending stopped sometime prior to his leaving the household. He submitted that the fact that the conduct did not continue afterwards demonstrates that the conduct was opportunistic rather than planned.
I accept this submission.

Knowledge of wrongfulness

The Crown submitted that the offender knew that what he was doing was wrong as evidenced by: 1. The offender telling the victim to stop if the victim's younger brother stirred 2. The offender would not penetrate the victim while his younger brother was in the room 3. Some of the offender's sexual conduct toward the victim involved a degree of force, for example, the offender "would sometimes place his hand on the victim's head and force him towards [the offender's] penis", and sometimes when the offender had sex with the victim it would hurt the victim and he would often cry when having anal sex on all fours. The victim also cried on other occasions. 4. The offender's statements to the victim in about 2006 "we have to keep this just between us" and later in 2007 "Don't open your fucking mouth to anyone". 5. After promising the victim "this is the last time", the offender continued to have sex with the victim, and began to do it without waking the victim up. 6. The offender admitted on a recorded telephone conversation with the victim that the pattern of conduct involved "pretty much raping [the victim] and then leaving and then have, what have the heart to talk to you like nothing happened the next day".
The offender submitted that the relevant question is the extent to which the offender appreciated the full significance of his actions at the time of the offending. It is submitted that he clearly did not.
I do not accept this submission. I believe that the Crown's submission is correct and that the statement made by the offender to the victim in the recorded telephone conversation is unequivocal and confirmatory of the Crown's submission.

The Crown's Particular Assessment of Objective Seriousness of each count

The Crown then addressed each count individually and offered a concise summary of the matters said to go to the question of objective seriousness. The Crown then went on to contend that I should find as follows in respect of the objective seriousness of each count: 1. Towards the lowest end of the range - count 1. 2. Below the midrange - counts 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14. 3. Lower end of the midrange - 11. 4. Above the midrange - 15. 5. Close to the midrange - counts 16 17, 18 and 19. 6. About the midrange - count 23.

Aggravating Factors

In respect of counts 11 to 19, the Crown contended that these offences were aggravated by dint of the fact that the offender abused a position of trust. This was put on the basis that the offender was babysitting the victim at the time of the offences (see section 21A(2)(K) of the Sentencing Act)). I do not accept this submission.
I do not believe that the evidence allows me to find beyond reasonable doubt that the offender was in a position of trust, as a babysitter, at the relevant time. The offender and the victim were living in the same household for much of the period the subject of the offending, and accordingly the fact that they were alone together can equally be attributable to the fact that other members of the household were simply absent, as distinct from the offender being selected and entrusted with the victim's care as a babysitter. In my view, this latter more benign construction of the events, could not be negated beyond reasonable doubt.
I should also add that it was common ground between the parties that the offences were aggravated by dint of the fact that they were committed in the victim's home (S21A(eb) of the Sentencing Act).

Defendant's Contentions as to the Objective Seriousness of Each Count.

The offender approached the issue of classification of the objective seriousness of the counts on a more global basis than the Crown. Mr De Mars did not dispute the Crown's summary of facts relevant to the assessment of objective seriousness of each count. In broad terms, he submitted that the Crown's classification of objective seriousness of each count failed to give appropriate significance to the offender's youth at the time of each offence. Accordingly, the offender argued that each of the classifications of objective seriousness submitted by the Crown should be reduced to reflect a proper weight to be attributed to that factor. For example, the offender contended that matters which the Crown contended to be "below midrange" should in fact be considered to be "at the lower end of the scale".
It was thus submitted that counts described by the Crown as being "about mid-range" (Counts 16-19 and 23) should in fact be considered to be below mid-range.
As a broad proposition, I agree with the offender's contentions. The parties were in agreement that the great bulk of the offending constituted very serious offending. The offences such as those before the Court are committed in a wide variety of circumstances and are usually committed by persons of mature age. This is not the case here. In my view, therefore, when proper regard is given to the youth of the offender at the time of the commission of each of the offences a reduction in the classification of objective seriousness as contended for by the offender is justified. In my view this approach is consistent with the authorities to which I have earlier referred. In respect of certain counts I accept the Crown's assessment.
I find the objective seriousness of each offence as follows. I have for convenience inserted the applicable sentence discount together with a reference to the Form 1 offences in the table. Count Number Offence provision Conclusion on Objective Seriousness Plea Discount Form One 1 Section 66M(2) Lower end of range 25% NA 2 Section 66M(2) Lower end of range 25% NA 3 Section 66A Below mid-range 25% NA 4 Section 66A Lower end of range 25% NA 5 Section 66A Lower end of range 25% NA 6 Section 66A Below mid-range 25% NA 7 Section 66A Below mid-range 25% NA 9 Section 66A Lower end of range 10% Yes 10 Section 66A Below mid-range 25% NA 11 Section 66M(2) Lower end of range 25% NA 12 Section 66A Below mid-range 25% NA 13 Section 66A Below mid-range 25% NA 14 Section 66M(2) Lower end of range 25% NA 15 Section 66O(2) Mid-range 25% NA 16 Section 66A Below mid-range 10% Yes 17 Section 66C(1) Below mid-range 10% NA 18 Section 66C(1) Below mid-range 10% NA 19 Section 66C(1) Below mid-range 10% NA 23 Section 66C(1) Below mid-range 10% NA

Victim Impact Statement:

I have had the benefit of a moving victim impact statement ('VIS'). In it, the victim detailed the effects which the offender's actions had, and continue to have, on his life. I do not think it either necessary or appropriate to go through those impacts in detail. The Crown did not submit that the offending was aggravated by virtue of the matters set forth in the VIS, but rather submitted that I should nonetheless take into account the contents of the statement as reflecting the harm done to the victim.
The Courts now recognise the serious damage and harm suffered by victims of child sexual abuse. The Courts recognise that child sexual offences have profoundly deleterious effects upon child victims for many years, if not for their entire lives. The Courts also recognise that sexual abuse of children will inevitably give rise to psychological damage.
Without wishing in any way to denigrate from the utility of the victim impact statement, I understood the parties to be in agreement that the deleterious effects of the offending on the victim as set out in the VIS were consistent with what the Courts now contemplate as being inherent in offences of this type. I have considered the VIS accordingly.

The Proper Approach to Histories Provided by the Offender to Expert.

The defendant relied upon the reports of Patrick Sheehan, a forensic psychologist, and Dr Andrew Ellis a forensic psychiatrist. These reports were admitted without objection, and neither expert was required for cross-examination. The offender did not give evidence but provided a letter to the court in which he expressed his remorse for his actions and demonstrated an insight into the effects which is actions have had on the victim.
The expert reports each contained the clinician's recitation of the offender's history and background, as provided by him. The Crown contended that as the history given to the experts was not supported by the sworn evidence of the offender, I should exercise considerable caution in relying upon the histories contained in the reports. In that regard, the Crown referred me to the well-known dicta of Smart AJ in R v Qutami [2001] NSWCCA 353 at [58]-[59].
The issue of the proper approach to histories given to mental health experts has been recently considered by the Court of Criminal Appeal in Lloyd v R [2022] NSWCCA 18 where McCallum JA (with whom Hamill and Cavanagh JJ agreed) made clear that Smart AJ's observations in Qutami should not be taken to represent a principle. Rather, the fact that medico-legal reports contained unverified histories merely potentially affected the weight and cogency which the sentencing judge may see fit to attach to the histories. McCallum JA drew attention to the judgment of Allsop P in Devany v R [2012] NSWCCA 285 at [88] where His Honour emphasised that the taking of histories by psychologists and psychiatrists, and their consideration leading to diagnosis, was at the heart of their professional expertise. Assessment of histories given is also part of that expertise.
McCallum JA also warned that care must be taken not to exclude admissible evidence by a process going beyond an assessment of weight ([47]).
I should finally note that one aspect of the history provided by the defendant to the experts dovetails with the agreed facts insofar as it was agreed that the offender emigrated to Australia aged 11.
I propose to deal with the histories given by the offender to Mr Sheehan and Dr Ellis in accordance with Lloyd v R, and in so doing accept the histories provided and the opinion drawn therefrom.

The Offender's Background

The offender was born in Auckland to Samoan parents. He is the third of five children. He grew up in an impoverished area of Auckland. Crime gang activity was prevalent. His early memories of home are memories of violence. The offender, his siblings and his mother all received beatings at the hands of his father. His father drank daily to intoxication, and the children would go to bed early to avoid him. The offender's father had gang links and had periods in custody for offences of violence, including domestic violence. The offender reported that he would sometimes require medical attention as a result of beatings from his father.
The offender also reported that when aged 8 or 9 he was the subject of several episodes of sexual abuse at the hands of a paternal uncle.
The offender's parents separated permanently when he was 10 years of age. Due to negative associations to which the offender was exposed in the community in which he lived, his mother considered it preferable to send him to Australia to live with the family of a maternal uncle. He arrived in Australia in 2010 aged 11 years. He lived with 12 people in a two-bedroom home, in obviously cramped conditions. He understandably reported problems adjusting to his new life, feeling isolated from his mother and siblings. He had negligible contact with his father thereafter, and has never re-established a bond with him.
The offender's mother and siblings migrated to Australia two years after his arrival and they thereafter all lived together. The offender also stayed with other family friends in the Samoan community during his early to mid teens, which includes the period in which the current offences were committed.
In New Zealand the offender described himself as "a troublemaker" in school. He was disruptive in class and often in detention. When the offender arrived in Australia, he repeated sixth-grade. He then attended high school. The frequency of his attendance at high school was less than 50%. He was frequently suspended for truancy and fighting. He was expelled in year 10. He enrolled at a college but continued to engage in the same problematic behaviours as before. He did not complete his School Certificate.
The offender was slow to enter the workforce, being unemployed for a number of years after he left school. Thereafter, he undertook various forms of casual work.
The offender commenced smoking cannabis at age 14 or 15. The offender reported his binge drinking on each weekend and problems with poker machine gambling. He also reported cocaine use.

Mr Sheehan's Diagnosis.

Mr Sheehan expressed the view that at the time of presentation, the offender presented as suffering from an adjustment disorder with mixed anxiety and depressive mood, and threshold substance abuse disorder.
Mr Sheehan expressed the opinion that a paedophilic disorder diagnosis was not appropriate. He did however opine that there were clear indications of anti-social personality disorder which had developed from early conduct disorder. He believed that this disorder was a relevant feature of the offending, being as they were acts of exploitation where the offender sought to have his needs met without regard to the consequences for either himself or his victim.

Dr Ellis' Opinion.

Dr Ellis characterised the history provided by the offender as demonstrating conduct disorder commencing in childhood and later adult antisocial behaviour. He believes that the offender suffers from post-traumatic stress disorder which has interacted in a complex fashion with his personality development to lead to a personality disorder with antisocial features. He also diagnosed substance abuse disorder.

Bugmy Principles

Mr De Mars of counsel submitted that the reports of Mr Sheehan and Dr Ellis established factors amounting to a deprived background in the sense explained by the High Court in Bugmy v R (2013) 19 CLR 571. These factors he summarised as follows: 1. low socio-economic status. 2. Incarceration of a parent. 3. Interrupted school attendance and suspension 4. Exposure to family violence and early exposure to alcohol abuse 5. Child abuse and neglect.
Mr De Mars went on to submit that the features of the offender's upbringing attract the principles explained by the High Court in Bugmy and provide a basis for the Court to: 1. reduce the seriousness with which the offending is regarded in terms of the degree of moral culpability; 2. reduce the weight to be given to specific and general deterrence and hence the significance of rehabilitation; and 3. recognise more fully the extent of adverse impact of the experience of punishment.
Mr De Mars also referred me to R v Millwood [2012] NSWCCA 2, in which Simpson J (with whom Bathurst CJ and Adamson J agreed) observed that "common sense and common decency dictate" that a person who had a disadvantaged and dysfunctional upbringing "will have fewer emotional resources to guide his or her behavioural decisions" and was therefore to be distinguished from an offender with a "normal or advantaged" upbringing in relation to their degree of moral culpability.
I agree with Mr De Mars' analysis and shall proceed to sentence accordingly.

Remorse

For the offender it was contended that he has demonstrated remorse for his conduct.
It was submitted that the offender's pleas of guilty were evidence in themselves of some degree of remorse. The offender says that his pleas have relieved the Crown of the need to overcome challenges involved in proving the offences, which occurred some time ago, and when the victim was very young. As such it was submitted that the pleas were in response to a Crown case which could not be characterised as strong.
The offender submitted that remorse was also demonstrated in the frank acknowledgement by the offender of his conduct in a telephone conversation in a pre-text call with the victim in 2019, and with the victim's mother in 2011.
Finally the offender relied on his statements of remorse made to Mr Sheehan, Dr Ellis and as expressed in his letter to the Court.
I agree with these submissions and I find remorse.

Prospects of Rehabilitation/Risk of Reoffending.

Mr Sheehan expressed that following the administration of Static 99-R test the offender is to be considered in the "Above Average" category for sexual re-offending. He did however express this view with the caveat that caution was necessary with this assessment due to the fact that the offender was a juvenile at the time of the offence. He went on to express the view that the offender's primary risk of reoffending was of a nonsexual nature. Dr Ellis expressed a similar view.
I find that the offender's risk of reoffending to be above average, but find that this risk relates to reoffending of a nonsexual nature.
The offender submitted that I should find that he has reasonable prospects of rehabilitation. In that regard, reliance was placed on the opinion of Mr Sheehan, who notes that as the sexual offending has been confined to the offender's youth, and may be associated with both immature brain development and psychological social development. He also expressed the view that recurrence of sexual offending is now less likely.
I accept that this is the case, however the offender has subsequent to the subject offending committed a number of serious offences, for which he has been incarcerated. I do not believe that any analysis of the offender's prospects of rehabilitation can be undertaken without reference to this fact.
For the Crown it was submitted that I should be guarded as to the offender's prospects for rehabilitation. I accept this submission and shall proceed to sentence accordingly.

Effects of Anticipation of Custody

It was submitted on the offender's behalf that the following matters together can amount to extra curial punishment and as such be relevant to the sentencing task. These matters were 1. These offences have been known to the Samoan community for a long period of time resulting in social stigma and rejection. 2. The offender has a foreshortened future and experiences suicidal ideation having made an attempt on his own life in August 2021; and 3. The offender suffers from insomnia relating to his thoughts of going to prison. He fears he will be killed in gaol and fears the stigma attached to being a child sex offender.
I do not accept that these matters are apt to be described as any form of extra-curial punishment. Indeed I take the view that these matters might be thought to be common to most offenders, especially offenders who commit offences of this nature.

Special Circumstances

Mr Sheehan in his report expressed the opinion that a significant period of parole supervision would assist the offender with his community reintegration, offering both commitment and support. The offender submitted that an extended period of parole would allow him to develop prosocial plans and address matters to which Mr Sheehan referred. As such the offender submitted that there existed special circumstances.
The Crown did not make any submissions to the contrary, and I find the special circumstances.

Section 5 threshold.

It was common ground between the parties that in all the circumstances the section 5 threshold has been crossed and as a consequence that there is no appropriate sentence other than one of full-time custody.
This proposition could barely be gainsaid. I shall proceed to sentence accordingly.

Aggregate sentence.

I propose to deal with the matter by way of aggregate sentence. I have taken this course as, in my view, this approach best accommodates the requirements of proportionality, accumulation, concurrency, and totality. Accordingly, I formally indicate that such a sentence is being imposed.
I am also required to indicate the sentences which I would have imposed for each offence had separate sentences been imposed rather than an aggregate sentence.
In setting forth the following indicative sentences and the aggregate sentence I have taken into account the matters set forth earlier in these reasons in relation to the objective seriousness of the offences. The aggravating and mitigating factors to which I have referred have also been taken into account.
As to the discounts for early plea, this has been applied to each indicative sentence and thus derivatively to the aggregate sentence, with rounding down in certain circumstances to the offender's benefit.
The matters attached on the Form 1 have been taken into account in the manner to which I have earlier indicated.
The ratio of the head sentence to the aggregate non-parole period is intended to reflect the special circumstances which I have found.
In arriving at both indicative sentences and the aggregate sentence I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].

Indicative Sentences

The following indicative sentences are head sentences, and are as follows: Count Indicative Sentence 1 3m 2 5m 3 3y 4 3y 5 2y3m 6 2y3m 7 2y3m 9 6m 10 2y3m 11 3m 12 2y3m 13 2y3m 14 9m 15 11m 16 3y7m 17 3y1m 18 2y8m 19 2y8m 23 2y10m

Commencement Date of the Sentence

The parties were in agreement that the offender had been in custody for a total of twenty days prior to sentence. His sentence should reflect this fact in its commencement date.

Orders 1. AV, you are convicted of the offences which bring you before the Court 2. You are sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years. 3. I direct that such term of imprisonment shall commence on 23 April 2022 and that the non-parole period shall expire on 22 April 2025 with the balance of the sentence to expire on 22 October 2026.

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: 16 May 2022

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Judgment (62 paragraphs)

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