R v Campbell

The offences are revealed

1. At the end of the evening the guests went home, Gillian and Lisa leaving with their parents at about 10.00 pm. Gillian told her parents about the act of cunnilingus, telling her mother that she didn't want the offender to get into trouble. She said "I want to be his best cousin. He pinky promised me not to tell". The following day Gillian made further disclosures about what the offender had done to her. A few days later Lisa was asked "did anything happen to you with [Paul]?" and she complained for the first time about the offender touching her bottom with his finger.

The pleas of guilty

1. The offender was arrested soon afterwards and charged with the offences I have described. He pleaded guilty at the earliest opportunity and was committed for sentence to this Court. In order to reflect the utilitarian value of his plea the sentence I impose upon him will be about 25% less than it would otherwise have been.

The Harm Caused

1. Not surprisingly Gillian has been harmed by what the offender did. A social worker at Sydney Children's Hospital wrote a report which was tendered by the Crown. In November 2016 Gillian was experiencing persistent nightmares and flashbacks of the assault, anxiety, mood swings aggressive and escalated behaviours as well as feelings of shame and confusion. She was also mistrustful of new relationships. An update Victim Impact Statement was tendered by the Crown today. The consequences for her have persisted and can be triggered at unexpected moments. She is likely to require further therapeutic support.
2. I have not been told anything about the harm occasioned to Lisa, but I have no hesitation in finding that it is highly likely that both girls have been harmed as a result of what the offender did to them. Whilst the offender may not have been fully aware of the consequences of his actions, harm was entirely foreseeable, even to a 13 year old boy like the offender.

The Offender himself

1. The offender had a happy childhood being surrounded by a loving and caring family. His parents separated when he was quite young. There are suggestions in some of the material that the separation was an amicable one, but there is also material suggesting that the offender was exposed to conflict between his parents during the process of separation. Fortunately, the offender was able to maintain equal contact with both his parents who each demonstrated their love for him.
2. Before the offence took place the offender was a popular student at school. He was involved in many sports and had a large group of friends whom he had known since birth. In common with many others in his community he was an enthusiastic participant in various community projects designed to aid in the welfare of others. He appears to have a strong social conscience. He has no prior convictions, and was clearly of good character at the time he committed these offences.
3. His criminal actions not only caused harm to the victims of his crimes but have led to significant consequences for him. He changed schools and lost contact with his friends and his community. He became a target of malicious bullying and he has been seeing a psychologist who gave evidence before me.
4. I find that the offender is remorseful, accepting that he is responsible for the serious consequences of his behaviour on his two cousins as well as many other family members, in particular, his parents. He has demonstrated an understanding of the effect his behaviour has had on the victims of it.

Assessment of the criminality

1. It almost goes without saying that these offences were very serious indeed, especially of course the offences involving Gillian. Making a young girl perform fellatio upon him to the extent that she choked is a particularly serious form of sexual assault. The offender's abuse of her was ongoing in the sense that multiple acts of assault took place in two different locations, but isolated in the sense that all offences occurred on the one night.
2. The offence involving Lisa is less serious, but that is possibly only because the offender was interrupted by the fortuitous arrival of another child.
3. These offences demonstrate how vulnerable children are. It is terribly easy for a person in the position of the offender to do what he did. At a large family gathering no one can be, or should be expected to be, constantly aware of what their children are up to. The offender used his position as a trusted member of the family to do what he did despite knowing that what he was doing was seriously wrong. He took advantage of his relationship with his younger cousins who looked up to him and desired his affection. Of course, because of his age his capacity to understand the seriousness of his behaviour was reduced, but as I have already noted, by his pleas of guilty he admits that he knew that what he was doing was seriously wrong and not just some mere naughtiness.
4. There is no evidence that the offences were planned.
5. I do not accept the submission made on behalf of the offender that "the conduct is at the lower end of the scale of objective seriousness", especially as regards the offences of sexual intercourse with a child under the age of 10. Gillian was significantly younger than 10 years of age, an act of cunnilingus is a particularly intimate form of sexual behaviour as is, and perhaps even more so, an act of fellatio. In addition that act caused Gillian to choke. Whilst of course the offence would have been more serious had a different form of sexual intercourse taken place, perhaps involving penile penetration, the fact that a more serious offence was not committed does not mean that these offences are, as the offender's counsel submitted, at the lower end of the scale of objective seriousness.
6. As far as the offence upon Lisa is concerned she was significantly younger than the 16 year cut off for an offence under s61M(2) and the form of assault was again a particularly intimate one. This was no casual brushing of Lisa's breasts for example which might have justified that description pressed upon me by counsel for the offender. That said, the offence upon Lisa would usually have been dealt with in the Childrens' Court, had it not been for the more serious offences involving Gillian.

Sentencing Children

1. The two offences involving Gillian are necessarily to be dealt with according to law but I have a discretion as to whether the offence involving Lisa should be treated in the same way. I have decided to deal with that offence according to law because of its seriousness and the fact that it occurred closely in connection with the offences which must be dealt with according to law.
2. Of course I must exercise my sentencing decisions in accordance with s 6 of the Children (Criminal Proceedings) Act. Very different sentencing principles apply when children are sentenced when compared with the principles which apply when adults are sentenced. In particular, while the offender bears responsibility for his actions he requires guidance and assistance because of his state of dependency and immaturity. It is desirable that the offender's education is not interrupted and that where possible he can live at home. Clearly it is also desirable that the offender retain his family and community ties. General deterrence and principles of retribution are, in this case, of less significance than they would be were I sentencing an adult for the same offences and I need to provide an opportunity for the offender to rehabilitate. Clearly in cases such as this the rehabilitation of the offender is of great importance. That factor does not diminish where, as here, a great deal of rehabilitation has already occurred through, amongst other things, counselling from a psychologist.

The motivation for the offences

1. When sentencing adults for offences of this kind I have often described their behaviour as predatory. Given his age, that description is not as easily attached to the offender's behaviour.
2. The psychologist expressed the opinion that "the offending behaviour seems to have been opportunistic and was driven by curiosity about male and female differences rather than being sexually motivated". Whilst it may well be the case that part of the motive for the offender's behaviour was curiosity, I have some difficulty understanding why the psychologist suggests that the offences were not "sexually motivated" especially as they appear to have occurred in the context of what the psychologist finds may well be significant past exposure to pornographic material including explicit sexual images through the internet.
3. There is of course no easy answer as to why a boy of the offender's age would do what he did but sexual immaturity has no doubt played a significant part in his decision to sexually assault his two young cousins.

Prospects for Rehabilitation

1. I am satisfied that the prospects for rehabilitation are good. The offender has strong family support and has developed a therapeutic relationship with a psychologist. He continues to have regular contact with him. The offender is exposed to pro-social role modelling and has expressed insight into his offending behaviour. Then there is the sentence that I will ultimately impose upon him. This will act as a substantial deterrent to the offender acting in this way in the future.
2. The offender has already been affected by the commission of his offences. Quite understandably he was removed from his school because the victims of his offences attended at the same school. This has caused him to lose contact with his friends from that school and, of course, the family has been split. The fact that the offender committed these serious offences has become known to others in his community and he's been assessed as indicating a high likelihood of clinical depression.

The sentence to be imposed and ancillary orders

1. The Crown relied on the decision RP v R [2015] NSWCCA 215, not of course for the principles of law stated regarding doli incapax, but because of that part of the judgment that deals with the sentence imposed on that young offender. From paragraph [109] of the judgment reference is made to five cases of sexual assaults committed by offenders around the same age as the present offender. Of course no two offences and no two offenders are identical but I am able to make allowances for the differences between other cases and the present case. I have found the decision of RP to be most helpful.
2. Counsel for the offender submitted that a custodial sentence was not required or appropriate. The Crown even went so far as to concede that a sentence of other than full time custody was within range. I do not agree. This was serious criminal behaviour involving multiple offences committed on two family members, significantly younger than he was, in circumstances where the offender knew that what he was doing was seriously wrong. The offender took advantage of the young age of his cousins and their affection for him. The acts of sexual intercourse involved substantial criminality, particularly the act of the accused penetrating the mouth of his cousin with his penis which caused her to choke. The sentence for that matter has to take into account a further offence involving another act of sexual intercourse where the accused penetrated the genitals of his 6 year old cousin with his finger, causing her pain.
3. The Crown's concession was contrary to both sentencing principle and inconsistent with the comparative cases which the crown provided to me.
4. I accept without hesitation the principles I have referred to earlier in s6 of the Children (Criminal Proceedings) Act. While any custodial sentence is a sentence of last resort, that principle applies even more so when children are being sentenced. But the objective gravity of the offender's conduct, particularly of course those offences involving sexual intercourse with his 6 years 3½ month old cousin, is such that a custodial sentence is required. I am made more confident in that conclusion by the case of RP and the cases to which it refers.
5. Under s19 of the Children (Criminal Proceedings) Act I direct that the sentence be served as a Juvenile Offender in a Juvenile Detention Centre.
6. Perhaps, were it an isolated event, the offence committed on Lisa might have been dealt with by a community based order but it was not an isolated incident at all. It was a serious example of an indecent assault committed on a young person well under the age of 16 which only stopped when the offender was interrupted.
7. I do not consider it necessary to record a conviction, adopting the general policy behind s14 of the Children (Criminal Proceedings) Act. Consistent with my finding that the offender has good prospects for rehabilitation I consider that the custodial sentences I will shortly announce are punishment enough and that once he has served his sentence the offender should be able to say that he has paid the price for his criminal behaviour.
8. I also have no hesitation in deciding that this is not an appropriate matter to authorise the offender being named. Whether or not I would have done so were it not for the relationship between the offender and the victims (and I would not have), I consider that naming the offender could easily lead to the identification of the complainants.

Sentence

1. There are clearly special circumstances in this case, related primarily to the age of the offender and the benefit to him, and thus the community, of the counselling he has received and will continue to receive upon his release.
2. I have decided to impose an aggregate sentence. Were I not to have done so I would have imposed the following sentences, taking the form 1 matters into account where appropriate:
3. For the offence of sexual intercourse with a child under the age of 10 constituted by the act of fellatio, imprisonment for 12 months.
4. For the offence of sexual intercourse with a child under the age of 10 constituted by the act of cunnilingus, imprisonment for 10 months.
5. For the offence of indecent assault on a person under the age of 16, imprisonment for 4 months.
6. Instead I impose an aggregate sentence of imprisonment to date from today 14th of December 2017 consisting of a non-parole period of 8 months with a head sentence of 16 months. The offender is to be released to parole on 13th of August 2018.
7. I repeat, under s19 of the Children (Criminal Proceedings) Act I direct that the sentence be served as a Juvenile Offender in a Juvenile Detention Centre. A conviction is not to be recorded.

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: 14 December 2017