R v JJS

S. Kavanagh (Crown) SOLICITORS: S. O'Connor (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2005/409

STUDDERT J JAMES J HOWIE J

Thursday 9 June 2005 REGINA v JJS Judgment 1 STUDDERT J: On 10 November 2003 the applicant (to whom I shall refer simply as "JJS") stood charged with two offences, namely, attempted sexual intercourse with a three year old child and assault with act of indecency on that same child. The applicant pleaded guilty to the lesser offence and the Crown accepted this plea in discharge of the indictment. In due course the judge before whom the plea was entered determined in lieu of imposing a sentence of imprisonment to direct the applicant to enter into a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. 2 The bond directed was for a period of five years commencing on 3 August 2004, the date of his Honour's order, and was to contain the following conditions:

(i) that the applicant was to be of good behaviour;

(ii) that he was to appear before the court if called upon to do so at any time during the term of the bond;

(iii) he was to inform the registry and the Juvenile Justice Department within seven days of any change of residential address;

(iv) he was to report to the Grafton Juvenile Justice office within one week of his Honour's order;

(v) he was to accept Juvenile Justice supervision and guidance and was to attend counselling and training programmes for a period of two years;

(vi) he was not to have any contact with the complainant for the term of the bond;

(vii) he was not to have unsupervised contact with children under the age of twelve years. 3 The offence in respect of which the bond was imposed was an offence concerning which s 61M(2) of the Crimes Act provided for a maximum penalty of ten years imprisonment. 4 At the time of the commission of the offence giving rise to the proceedings in the District Court, the applicant was fourteen years of age. The offence was committed on 13 December 2002 and the applicant was born on 13 August 1988. 5 An agreed statement of facts was presented to the judge and he recorded the relevant facts shortly in remarks at the time of the order under s 9: "The facts which were agreed were that the three year old victim, [T], was living with her father and a younger sister at an address in Moree. The offender was living at the same address at the time. He was the cousin of the young child, [T]. On 13 December 2002 the father of [T], a man called [PS], left the home for a short period. There were two younger children, one of them being [T], and the only other person in the house was the young offender. It is said that [PS] left these two young children in his custody. He came back fifteen minutes later, walked into the bedroom in which the offender had been accustomed to sleeping, and saw young [T] lying on her stomach naked. Her skirt and top were next to the bed. He then observed that [JJS] had an erect penis, was not wearing shorts, and saw a quantity of fluid which appeared to be semen around the lower back and upper hip region of his daughter. He reacted with considerable anger and hit [JJS], who ran away. He called the police. The police came. The Department of Community Services came. The young girl being only three really had no idea what had happened, and had no reaction to whatever [JJS] may have done. She was examined by a paediatrician subsequently. No evidence has been presented to me to suggest that the paediatrician found anything to suggest any form of sexual penetration. Later that afternoon the police arrested [JJS] in the presence of his father. He did not agree to be interviewed, and he was subsequently charged. The facts would certainly disclose some form of assault, although it may have been slight. The assault would have involved, in my opinion, the removal of the child's clothes, and perhaps the depositing of semen upon her. The act of indecency was the exposing of himself to her, or even if she did not appreciate what it was that he was doing." 6 The applicant had no criminal record and between the date of the offence and the date that the order concerning the bond was made, the applicant was on bail with stringent conditions. 7 The applicant came from a disturbed family background, as was disclosed in the report of the Department of Juvenile Justice and in the report of the psychologist, Dr Lennings, which documents were before the judge. The applicant was living with his maternal grandparents at the time of the offence. The marriage between the applicant's parents had failed, and the applicant's mother was a schizophrenic. The applicant's upbringing was disturbed by and following the breakdown of the marriage. 8 As at the time of the offence, the applicant had support from his grandfather and his father but the two men were in dispute. 9 Ms Liva, the author of the Juvenile Justice report, reported that the applicant did not present "as having deviant sexual patterns". The applicant told her he had thought about committing the offence for a period of twelve months, indicating that this was not an impulsive act, but it was an opportunistic act with no evidence of planning or of grooming the victim. Ms Liva wrote: "[JJS] has participated in and benefited from, counselling with James Reilly. James consider [JJS] would comply with any Court request to participate in counselling. Any counselling that [JJS] engages in should include education around appropriate expression of anger and sexual boundaries. This counselling can be provided by the Department of Juvenile Justice, Sex Offender Program or by James Reilly, whichever the Department deems appropriate"

and Ms Liva proceeded to make the following recommendations: "RECOMMENDATIONS: Given the serious nature of the offence the Court has the discretion to deal with the matter either at law or under the Children (Criminal Proceedings) Act 1987. When sentencing children, however, the Court is required to take into consideration principles outlined in Section 6 of the Children (Criminal Proceedings) Act 1987. As such the court takes into account the young person's age and maturity at the time of the offence, the desirability wherever possible for the young person to reside with parents or significant others, and to maintain their educational or employment activities. It is considered the young person is in need of supervision and guidance so if the court chooses to impose a community-based order it is suggested the order include the following conditions. 1. To be of good behaviour 2. To accept the supervision and guidance of the Department of Juvenile Justice 3. To attend counselling and programs as required by the Department of Juvenile Justice 4. To have no contact at all with the victim 5. To have no unsupervised contact with children under 12 years of age" 10 His Honour also had the benefit of Dr Lennings' report, prepared after interview with the applicant and his father. By way of psychological assessment, Dr Lennings wrote: "14. Psychological Assessment . [JJS] presents as a teenager who has experienced a severely adverse background. Despite this, and the offence, his adjustment does not indicate a person who was especially delinquent or oppositional. It is clear he was marginalised and not adjusting well to the tasks of adolescence, the most significant manifestation of this his under-achievement at school. On interview [JJS] described himself as a person who was prone to some impulsivity, who preferred to be on his own a lot, who could make and keep friends, but who felt a degree of social alienation. He said he was mainly happy but described some lability of mood, mainly fleeting periods of anger rather than sadness. He says he usually 'sat out' his anger and did not react. 15. [JJS] did not describe symptoms of depression. He did describe a number of symptoms of fleeting anxiety, including heart palpitations, a sense of worry, and feeling nervous, but not a systematic syndrome suggestive of anxiety disorder. He denies symptoms of psychosis. To further assess his personality he was administered the Symptom Checklist-90 Revised (SCL-90R). The SCL-90R is a 90 item self-report inventory assessing domains of psychopathological functioning. It was initially developed for use with psychiatric and medical patients. It has well established validity and reliability and is a well-accepted test of psychopathology. Diagnostic formulations based on this test are indicative only - in the absence of corroborating information, any specific pattern or cluster of symptoms does not necessarily mean a positive diagnosis can be made. Adolescent norms were used. [JJS] did not reveal any significant pattern of symptomatology on this test. Overall, [JJS] appears not to have any major psychopathological disorder other than some adjustment difficulties to his history of child abuse." 11 Dr Lennings considered that the applicant appeared to experience genuine remorse for what he had done and concluded: "20. In summary, it appears that [JJS's] behaviour represents a parenthetic process, in that there is no pattern of delinquency (at least none reported to me and there is no criminal record of such) to explain his behaviour. Poor supervision, a family history of conflict and probably considerable anger felt towards his uncle may well explain much of the offence pattern. [JJS] does appear to have responded to counselling and presents as a young person who could ordinarily be expected to make a good response to a non-custodial order. 21. The rehabilitation potential for [JJS] is demonstrated by the absence of a peer group of delinquent or deviant friends, absence of substance abuse and, despite poor school adjustment, compliance with and commitment to his work experience. He does not have any major psychological disorder, had adequate intelligence and should be able to make use of treatment, and does not present with a prior history of conduct disorder. On the other hand, his family history is a difficult one and in particular it seems there is little likelihood of good adjustment if he is to be returned to his grandmother. The father has told me that the uncle, who is currently in gaol, has made death threats against his nephew and given the history, the father is taking this threat seriously. Some concern to the safety of [JJS] needs to be considered, especially if he were to return to his grandmothers. 22. Recommendations . Should [JJS] receive a non-custodial sentence he will need to attend for ongoing counselling. Whilst it does not appear that [JJS] has a developed sexual deviance problem, he does have a number of markers of dysfunction. The literature reveals that the majority of young people convicted of a sexual offence do not re-offend sexually (recidivism rates are about 15% as compared to about 40% for adults), and that the primary motive for sexual offences in young people is anger rather than sexual deviance. Ongoing treatment for his adjustment difficulties and possible anger appears indicated, and such treatment is available from Mr Reilly on request." 12 Commenting upon the Juvenile Justice report and the evidence given by Ms Liva, his Honour remarked that Ms Liva had obviously taken a great deal of trouble investigating the family history and the background and he accepted as factual what Ms Liva said concerning the applicant. 13 His Honour noted, consistently with the material placed before him, that as a result of having committed the offence the applicant had become quite isolated. He left school and ceased to have contact with people with whom he had been at school because of peer awareness of what had happened. His uncle had become very hostile and threatening towards him. 14 The judge said (ROS 5): "From what I can understand of the report of Miss Liva and her evidence, he is a young man of average condition who has described himself to her as a liar, which seems a very odd thing to do. He is very small for his age, although quite compactly built. She claims in her report that he does not present as having any deviant sexual patterns, but also reports that he had thoughts of committing this offence for a period of twelve months before he offended, and that he gave her the indication it was not an impulsive act, it was an opportunistic act with no evidence of planning. I find it difficult to reconcile what Miss Liva says. I am not certain at all about his sexual pattern, whether it is deviant or not. I am satisfied, of course, because of the plea of guilty that he behaved in a significantly deviant fashion on this particular occasion." 15 At the time of sentencing, the applicant was working as a fitter and turner's assistant and had commenced study at TAFE. 16 I turn now to consider the grounds of appeal: 1. The condition of the bond that the applicant have 'no unsupervised contact with children under the age of twelve' is unreasonably onerous and lacks precision.

2. The length of the bond is manifestly excessive in the circumstances of this case.

3. The sentencing judge erred in the exercise of his discretion by dealing with the applicant according to law pursuant to s 18 of the Children's (Criminal Proceedings) Act 1987. 17 It is convenient, as the applicant's counsel did in her submissions, to deal with grounds 1 and 2 together. 18 When considering these grounds, it is to be borne in mind that when his Honour ordered the applicant to enter into the bond, the applicant had, by that time, been on stringent bail conditions for a period of twenty months. Moreover, he had complied with them. Bail conditions initially set in December 2002 required him to be with his father unless he was at school and later those conditions were varied to require him to be with his grandfather, and not to leave his grandfather's home unless in the company of his grandfather, save for school attendance. Those conditions were later varied so as to enable the applicant to attend TAFE, but in summary the bail conditions over a period of twenty months demanded close adult supervision of the applicant and, at least from February 2004 onwards, the applicant was not to have access to children under the age of twelve unless under the supervision of either grandparent. 19 The applicant is still only sixteen years of age. It has been submitted it is difficult for him to avoid contact with twelve year old children and that the expression of the condition that he should have "no unsupervised contact" with children under the age of twelve is unclear. When the conditions were set, the applicant's nine year old sister, like the applicant, was also living with the same grandparents. What would constitute a breach of this condition? 20 It is desirable that a court when imposing conditions of a bond do so in terms which define with reasonable precision the ambit of forbidden conduct: see Bugmy [2004] NSWCCA 258 at para 61. Indeed, it is pertinent in the present context to record what Kirby J said in Bugmy at para 61 when considering conditions of bonds: "61 …First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation. Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed. Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous." 21 It seems to me that the condition concerning unsupervised contact does offend the second of the principles to which Kirby J referred in the above passage. There was no definition as to what constituted supervision, nor was contact defined. There was a lack of precision in defining precisely what conduct was proscribed. 22 Then there is the period of the bond. 23 The judge asked Ms Liva for what period did she recommend that there be no unsupervised contact with children under twelve. I refer to evidence given by Ms Liva at T 8 on 13 February 2004: "Q. I note that in Condition 5 in your recommendations you say 'to have no unsupervised contact with children under 12'. Over what period of time would you expect that? A. I would like that for 2 years. Q. For 2 years. Why would that be? A. Well, going through the process of counselling it can increase their risk of reoffending and can - they also are open to accusations by other people; in particular his uncle, if he were seen unsupervised with children under 12, there can be false accusations made as well. And that may be a temptation for him. So it is a double protection role. HIS HONOUR: Can I ask you how long you would envisage the supervision going on for under a bond of some kind? A. I would like to see a 2 year bond. I would not see that it would necessarily have to have intensive supervision for whole 2 years, but I would like to have the 2 years there in case it was needed." 24 His Honour, in setting condition (v) providing for Juvenile Justice supervision, was doubtless influenced by the above evidence in requiring the applicant to accept such supervision for two years. However, whilst recognising that the bond served a function not limited to the opportunity for Juvenile Justice supervision, the term of five years seems to me to have been unduly long, particularly having regard to the stringent bail conditions that were in place for twenty months before the start of the term of the bond. Indeed, I am persuaded by the submissions advanced on the applicant's behalf that in setting the term of five years, the maximum duration permitted by s 9(2) of the Crimes (Sentencing Procedure) Act, the judge imposed a requirement that was unnecessarily burdensome, and inappropriate to all the circumstances of this case. 25 For these reasons, I conclude that the intervention of this Court is warranted. 26 As to ground 3, s 18 of the Children (Criminal Proceedings) Act provides: " 18 Other indictable offences (1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children's indictable offence, be dealt with: (a) according to law, or (b) in accordance with Division 4 of Part 3. (1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters: (a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing , (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant. (2) For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children's Court under that Division in the same way as if: (a) the court were the Children's Court, and (b) the offence were an offence to which that Division applies. (3) If a court, in exercising the functions of the Children's Court under subsection (2), makes: (a) an order of recognizance under section 33 (1) (b) or (d), or (b) an order of probation under section 33 (1) (e), the court may, on referral from the Children's Court under section 40 (1A), deal with the order in the same way as the Children's Court may deal with it under section 40." 27 His Honour addressed s 18 thus: "Section 18 permits a court to deal with an offender in relation to an indictable offence either according to law or in accordance with the Children's Criminal Proceedings Act 1987, Pt 3 Div 4. In determining whether someone should be dealt with according to law or in accordance with the Children's Criminal Proceedings Act , a court is required to have regard to the seriousness of the indictable offence, the nature of it, the age and maturity of the person at the time of the offence, the seriousness, nature and number of any prior offences, and such other matters as the court considers relevant. In my opinion this is a very serious offence. It cannot be regarded as one of slight importance. Had it been committed after 2 February 2003, it would be an offence which at law would carry a standard minimum sentence of five years imprisonment. The Legislature has, although after this crime was committed, indicated its view of the seriousness of this offence. Quite apart from that Legislative intervention, I am of the opinion it is a very serious offence. He was fourteen at the time. The evidence before me makes it plain that he understood what he was doing, and that he took advantage of an opportunity to do it having pondered on the matter for about a year. It is not the type of matter, in my opinion, which should be dealt with in a Children's Court." 28 It has been submitted here that the judge was in error in stating that it was not appropriate that the matter be dealt with in a Children's Court. What he was required to address was not whether it was to be dealt with in a Children's Court but whether it was to be dealt with pursuant to Pt 3 Div 4. That is correct, but his Honour had earlier in his remarks addressed the question as to the basis upon which he should deal with the applicant, and he correctly reminded himself (ROS 10) that he had to have regard to s 18 in order to determine in a formal way whether he proceeded under that Act or at law. 29 Having already determined he would not remit the matter to a magistrate, I consider the Crown is correct that the judge, having already dealt with the remission issue, should be taken in the remarks to which the applicant's submissions draw attention as referring to the regime rather than the actual court. 30 The principal reason for dealing with the matter according to law, as I understand his Honour's remarks, was the objective gravity of the offence. 31 It has been submitted that there were other matters which his Honour ought to have taken into account and which he has not expressly said he took into account, namely the following: the applicant's learning disability, the immaturity of the applicant at the time of the offence and the role that that immaturity had in its commission; matters contained in the report of Dr Lennings; the fact that the applicant's mother was institutionalised; the fact that the applicant had been left unsupervised at the time of the commission of the offence; the fact that the applicant had been assaulted by the uncle; and the fact that the applicant had been shamed in the eyes of the community. 32 Those matters were all, of course, before his Honour and I would not assume that his Honour ignored them in exercising his discretion. 33 This was, objectively, a serious offence and I am not persuaded that the judge's discretion miscarried in determining that he should deal with the matter in the manner in which he did, namely in dealing with it at law. It seems to me the gravity of the offence, viewed objectively, and the nature of the offence, warranted that the matter be dealt with in that manner. 34 Since I consider that the applicant has established grounds 1 and 2, it becomes relevant to consider the affidavits of the applicant and of his grandfather, each affirmed on 22 May, 2005. 35 The affidavit of the applicant disclosed that he is no longer a student at TAFE. He is now working on a farm which is a feed lot. He is happy in his work and he is living for much of his time, ten days out of fourteen, in a small two room cabin supplied by his employer. When he is not working, he goes home to his grandparents' home, where he continues to be with his grandparents and his young sister. 36 The applicant's grandfather, in his affidavit, confirms the current situation concerning his grandson and the current arrangements as to his living circumstances. 37 In my opinion in this case, leave to appeal should be granted. I consider that the overall period under which the applicant should be bound should be limited to a period of three years commencing on 3 August, 2004, and that the applicant should not be required to comply with a condition of the bond that there be no unsupervised contact. 38 Accordingly, to give effect to those matters in relation to which I consider this appeal should succeed, I would propose the following orders:

2. That the bond currently in place ought to be quashed effectively as from today.

3. That the applicant should be ordered to enter into a bond, within the next seven days, to take effect from the date of execution and to expire on 2 August, 2007.

4. That the bond should contain the conditions set by the District Court, save for the exclusion of the condition that the applicant is not to have unsupervised contact with children under the age of twelve years. 39 JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour. 40 HOWIE J: I also agree. 41 STUDDERT J: The orders of the Court are those that I have proposed. **********

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