R v JR

District Court of NSW|2022-11-23

Judgment

The offender was originally committed for trial from the Wagga Wagga District Court on 12 May 2021. On 31 January 2022 the offender pleaded guilty to three counts on an indictment being counts 2, 4 and 7, namely, that he (2) between 1 June 2017 and 11 November 2018 at [town] in the State of New South Wales did have sexual intercourse with MD who was at the time under 10 years of age, namely 8 or 9 years of age, contrary to s 66A(1) of the Crimes Act, 1900; and further (4) between 1 June 2017 and 11 November 2018 at [town] in the State of New South Wales did have sexual intercourse with MD who was at the time under 10 years of age, namely 8 or 9 years of age, contrary to s 66A(1) of the Crimes Act; and further (7) between 1 June 2017 and 11 November 2018 at [town] in the State of New South Wales did have sexual intercourse with MD who was at the time under 10 years of age, namely 8 or 9 years of age, contrary to s 66A(1) of the Crimes Act.
Although pleas of guilty were entered on what was the first day of the trial, it is accepted by the parties that the pleas of guilty were entered following plea negotiations. As the offender was a juvenile at the time of the offending the provisions relating to EAGP do not apply. The Crown concedes a discount for the utilitarian value of the pleas of guilty of 10 to 15%. Mr King on behalf of the offender submitted that as the Crown submits that the appropriate discount for the pleas of guilty was 10-15% the Court should allow 15% as that was the upper end of the range submitted by the Crown. It is appropriate to accede to Mr King's submission and I allow a discount of 15% for the utilitarian value of the pleas of guilty.

Facts

The dates of birth of the offender and the victim are set out at paragraph 1 of the facts. During the time frame of the three charges on the indictment the offender was 14 or 15 years of age and the victim was 8 or 9 years of age. The offender and the victim are stepbrothers. The precise ages of the victim and the offender at the time of the offending is one of the many issues that falls for determination.
The father of the victim commenced a relationship with the offender's mother at the end of 2014. They moved into premises at a town in southern New South Wales in December 2015. The victim moved to a new room within the house after June 2017. The victim maintains that the offending commenced after he moved into that new room. The offending occurred between June 2017 and the victim's 10th birthday.
In respect of count 2, i.e. the first of the matters to which the offender has pleaded guilty, there was an occasion when the offender came into the victim's room and woke him up. The offender asked the victim to "come down here". The victim asked why but the offender replied, "just come down". The victim complied and came down from his bed. The offender pulled down his pants and told the victim to pull down the "onesie" that he was wearing. The victim did so. The offender performed fellatio on the victim.
The offender's mother came down the hallway and the offender ceased his conduct. The offender said to the victim, "Don't tell anyone mate, it's just our little secret". The victim went back to bed.
Going to count 4, i.e. the second matter to which the offender has pleaded guilty the conduct occurred on another occasion which the victim thinks might have been on a weekend or in the holidays. The offender asked the victim if he wanted to play PlayStation. The victim used to play a game on PlayStation with the offender.
The offender took the victim to his room. The victim sat on the offender's lap as they played. The offender was sitting on a wooden kitchen type chair. When the game finished the offender told the victim to get up and he did so. The offender pulled down his own pants and forced the victim to suck his penis. The offender was standing and the victim was kneeling. The facts recite, "the victim recalls putting his mouth over it and then quickly taking it off but the offender would push his head down on to his penis and keep it there for what the victim estimates as about 10 seconds. The offender said, "Come on (name) just five more seconds and then you can get two more games". The victim complied so that he could get two more games.
The Form 1 matter attaches to count 4. The facts of the Form 1 matter are set out at paragraph 14 of the agreed facts. The victim was playing PlayStation in the offender's room when the offender entered the room and told the victim to sit on his lap. The victim did so. The offender played with the victim's penis by moving his hand up and down the victim's penis and by moving his penis around. The offender said, "see buddy, this is what your penis likes". The victim then pulled up his pants. The facts are silent as to whether it was the victim or the offender that initially lowered the victim's pants.
Count 7, that is the last count to which a plea of guilty was entered, relates to the last occasion when the victim was "about 9 turning 10". The offender pulled the victim into the bathroom and pulled down the victim's pants. The offender pulled down his pants and "made the victim suck his penis". The offending stopped after the offender let the victim go after the victim had sucked the offender's penis for about 20 seconds.
The victim first disclosed the offending conduct to his sister and stepsister. The victim's sister told the victim he had to tell his father and he did so. The offender's stepmother was then informed of the allegations. On 2 February 2020 the matter was disclosed to the victim's mother. The police were informed.
On or about 1 February 2020 the offender's stepmother contacted the offender and arranged to meet. When asked if he had been sexually inappropriate with the victim he said "yes". When the offender was pressed for details, particularly as to whether there had been any penetration the offender said words to the effect of, "There was touching and I did get (victim) to kiss my penis". The offender said in answer to a question that it had happened a few times but he did not know how many. The victim's father was informed.
On 14 December 2020 the offender attended the Wagga Wagga Police Station with his biological parents where he was cautioned and placed under arrest. On legal advice the offender declined to answer questions.

Assessment

There is a significant difference between the parties in their respective submissions as to the objective seriousness of the matter. There are a number of matters that go to complicate the assessment of seriousness of the matters, not least of which is the respective ages of the victim and the offender. I am required to find a number of facts relating to the age of the victim and the offender before turning to the determination of the objective seriousness. For more abundant caution I will go to a number of authorities dealing with fact finding for the purpose of passing sentence.
Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] said: "As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.'" R v Storey is reported at [1998] 1 VR 359.
There is of course the more recent decision of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In that decision French CJ, Bell, Keane & Nettle JJ said at [64]: "But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich: '[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.'"
Their Honours went on to say at [70]: "Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen: 'The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.'"
In Strbak v The Queen (2020) 94 ALJR 374; [2020] HCA 10 the Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ) said at [13] (footnotes omitted): "When sentencing an offender where there is a dispute as to the facts constituting the offence, the judge should not draw an adverse inference by reason of the offender's failure to give evidence save in the rare and exceptional circumstances explained in the joint reasons in Azzopardi v The Queen. It follows that the appeal must be allowed, the appellant's sentence quashed and the matter remitted to the Trial Division of the Supreme Court of Queensland for the appellant to be sentenced according to law."
I have gone to the trouble of extracting some of the authorities relating to fact finding for the purpose of sentence because of submissions made by Mr King on behalf of the offender. The authorities to which I have referred are generally referred to in relation to a fact-finding exercise after a jury verdict of guilty but they appear to give good guidance in the circumstances with which I am met in this matter.
As I understood the submission, it was put that in the circumstances given that within the facts there is an absence of detail other than a time frame as to the time of the offending, for the purpose of proceeding to sentence I could not be satisfied beyond reasonable doubt that the offender was any older than 14 years of age and further, I could not be satisfied beyond reasonable doubt that the victim was any younger than 9 years of age.
At the sentence hearing I went through the mathematical exercise and determined that there was a period of approximately two and one half months where the victim was 9 and the offender was 14.
The Crown submitted that it is plain that the Crown can prove beyond reasonable doubt that the offences occurred within the time frame of the averments in the counts in the indictment. The Crown put that the offender cannot "have his cake and eat it too". I understood the Crown to submit that there was a degree of artificiality about the submissions by counsel for the offender as to the ages of the victim and the offender.
Ultimately, and strictly applying the authorities to which I have referred, the reality is that the Crown cannot prove beyond reasonable doubt that the offender was older than 14 nor can the Crown prove that the victim was younger than 9. Be that as it may, on any view of the facts the offender was barely over the age of criminal liability (meaning 14 years of age and doli incapax has no application) and the victim was at the upper end of the age range. I indicate that the end result in this matter would have been no different regardless of my findings as to whether the offender was 14 and the victim was 9 or whether the offender was barely over the age of criminal liability and the victim was towards the upper end of the age range contemplated by the section.
The age of the offender is a relevant matter when determining the objective seriousness of the matter. In this regard I note the decisions of R v AA [2017] NSWCCA 84 at [55] per Beech-Jones J (as his Honour then was) (Leeming JA, Hulme J agreeing) and BM v R [2019] NSWCCA 223 at [16]-[17]. It is obvious from those decisions that the age of the offender at the time of the offending is a factor that goes beyond being merely part of the subjective mix. The age of the offender at the time of the offending is a factor that goes towards informing the objective seriousness of the matter.
The age of the victim is also a relevant consideration. I have already made findings as to the age of the victim.
Further, by way of general principle, Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]: "It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness".
In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]: "…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).
The Court (Leeming JA, Johnson & Hall JJ) said in R v Gavel [2014] NSWCCA 56 at [97]: "…It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of the offending is to be determined according to the entirety of the facts and circumstances of the case in question…"
McCallum J (as her Honour then was) (Gleeson JA agreeing with additional comments, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] observed that, "…Each case must be assessed according to its own circumstances".
Fullerton J in her judgment in R v PGM [2006] NSWCCA 310 at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that: "…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable".
The offending occurred in the home of the victim, where the victim was entitled to feel safe. The factor of statutory aggravation pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 is made out. However, if the fact of the offending occurring in the victim's home is taken into account in determining the seriousness, which in this case it most certainly is, although the factor of statutory aggravation is made out it does not achieve any further weight. In this regard see the judgment of Howie J in R v Elyard [2006] NSWCCA 43 especially at [39].
Next to be considered on the issue of objective seriousness is the nature of the offending. All three counts involve fellatio. In respect of count 2 the offender fellated the victim. There is nothing in the facts going to the period of time for which this occurred. Noting the general circumstances as set out in the facts I could not find beyond reasonable doubt other than it was a short period of time. In respect of count 4 the facts recite that the offender forced the victim to suck his (offender's penis) for a total of 15 seconds. The "forcing" consisted of the offender pushing the victim's head down to his (offender's) penis. In respect of count 7 the victim fellated the offender for about 20 seconds.
There was no ejaculation in respect of any of the offending, which is a relevant consideration on the finding of objective seriousness. The matter is not less serious because there was no ejaculation - the matter would have been more serious had there been ejaculation.
Each of the offences were opportunistic. The Crown submits at paragraph 26 of the Crown's written submissions that the conduct in respect of count 2 involved a degree of planning and forethought. The facts in respect of each of the counts are relatively bland. I am not prepared to find on the facts that the offending in respect of any of the counts was other than opportunistic, noting in particular the age of the offender at the time.
There was some degree of force in respect of count 4. The facts in respect of count 7 recite that the offender "made the victim suck his penis". There is no elaboration or detail given as to what occurred for the offender to have "made" the victim suck his penis. Nevertheless, the use of the force in pulling the victim into the bathroom and the description "made the victim suck his penis" is also relevant to the finding of objective seriousness.
Also relevant so far as count 4 is concerned is the fact that the offender offered the reward of further games on the PlayStation if the victim continued with the conduct.
In respect of count 2 the offender did say, "don't tell anyone mate, it's just our little secret", which is relevant to the finding of objective seriousness. However, that statement was not accompanied by any threat. Had there been a threat the matter would have been more serious. While what the offender said is a relevant factor it is in the overall mix of the matter not of great consequence, noting in particular the age of the offender.
So far as the matter on the Form 1 is concerned, the victim was well below the upper end of the age range contemplated by that offence, the upper end being 16 years of age. Nevertheless, the age of the offender must be a factor. The offending occurred in the victim's home. The matter involved skin on skin contact with the offender playing with the victim's penis. Again, there is nothing in the facts as to for how long the offending occurred. Given the facts, I could not find other than that it was for a relatively short period of time.
The Crown submitted (written submissions) that count 2 is below mid-range, count 4 falls within the mid-range and count 7 at the lower end of the mid-range. The Crown submits that the offending to which the Form 1 relates is a very serious example of an aggravated indecent assault.
Mr King on behalf of the offender submitted in oral submissions to the effect that all of the offending is well below mid-range. I do not have the benefit of a transcript of the precise submission made.
Any sexual offending against a child is a serious offence. Any offence involving sexual intercourse with a child under 10 years of age is an extremely serious offence, which is recognised by the maximum penalty applicable. However, all matters have their place on a scale of seriousness. The assessment of objective seriousness is made in the context of other matters of that type (i.e. matters involving sexual intercourse with a child under 10 years of age) that come before the courts.
I have gone through in some detail the various factors relative to the finding of the objective seriousness. Noting the age of the offender, the age of the victim and the various factors to which I have referred I agree with the submission of Mr King that each of the matters is well below mid-range. However, counts 4 and 7 are more serious than count 2, with count 4 being marginally more serious than count 7.

Criminal History

The offender is now almost 20 years of age. He has not offended before nor since the offending subject to these reasons. The offender is entitled to be dealt with as a person of prior good character.

General Principles

In passing sentence, the Court is dealing with an offender who was barely at the age of criminal responsibility. I understood Mr King to submit that there is a danger that the court in dealing with offending as a juvenile might fall into the error of merely paying "lip service" to section 6 of the Children (Criminal Proceedings) Act, 1987. Relevantly, that section provides: "A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim."
As I observed at the sentence hearing in this matter the words, "…is to exercise those functions having regard to the following principles" means that the section is in mandatory terms. Counsel for the offender can safely assume that I am well aware of the provisions and will not merely pay lip service to them.
Apart from section 6 of the Children (Criminal Proceedings) Act there are a number of authorities setting out principles when dealing with juvenile offending. The aspect of rehabilitation attains a much greater emphasis in a sentencing exercise involving a juvenile offender. However, the objective criminality and other aspects of the sentencing process are not overlooked merely because the offender is a juvenile, particularly where the offending is serious. McClellan CJ at CL in R v KT [2008] NSWCCA 51 at [21]-[26] succinctly summarised the authorities relating to sentencing juvenile offenders. His Honour was in dissent on the ultimate issue, however, with unfeigned respect, that part of the judgment is an excellent summary of the relevant principles, which has been cited with approval numerous times. His Honour said at [22]-[26]: "The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. [23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society." [25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. [26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).
I also note the effect of and have regard to the decision of BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159. I also note and have regard to the decision of Thammavongsa v R (2015) 251 A Crim R 342 especially at [84]-[90] per Bellew J (Simpson J (as her Honour then was) and Hulme J agreeing, both with additional comments).
Hodgson JA in BP v R by way of additional comments said at [4]-[5]: "First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime."
Further, as I observed in the sentence hearing in this matter, the comments by Hodgson JA in BP v R at [5] as to "emotional maturity and impulse control" have very real application in the matter presently under consideration noting the offending.

Victim Impact Statement

The victim has provided a Victim Impact Statement, which is at tab 5 of the Crown tender bundle, Exhibit A on sentence. That statement speaks eloquently of the harm that the type of offending with which this matter is concerned has on the victims, both in the short and long term. The statement was read to the court by the victim's biological mother. The harm done by this offending goes beyond the harm to the victim. While not deprecating the harm done by the offending it is pleasing to see that the victim is approaching life with a positive outlook despite what has happened to him.
However, the Crown, appropriately, does not rely on the content of the victim impact statement to establish any factor of aggravation. I note the decision in R v Tuala [2015] NSWCCA 8. The effect of the offending on the victim is taken into account by giving proper effect to s 3A(g) of the Crimes (Sentencing Procedure) Act.

Juvenile Justice Background Reports

There are two Juvenile Justice Background Reports, the first dated 9 May 2022 and the second dated 25 August 2022, those dates being the dates on which the authors signed those Reports.
The first of the reports sets out the offender is the eldest of three siblings. He grew up on a farm in southern New South Wales near where the offending occurred. When his parents separated, they moved to the town where the offending occurred. The offender was not raised in an abusive or traumatic living environment and did not witness any form of domestic violence. His mother however reported that the offender's father had a level of aggression that made her feel unsafe which in part led to her decision to leave the relationship, with the children. The offender confirmed that he had a good supportive relationship with both parents.
The offender at the time of the preparation of the report was studying full-time at a regional university. In fact he was studying law and has at the time of the sentence hearing successfully completed his first year of his degree. He has had paid employment including with a senator of the Australian Parliament. The author draws heavily on reports from Ms Gray-Weale, a psychologist retained by the offender and whose report I will refer to later, and a report of Dr Susette Sowden, a treating psychologist. I will also refer to her report later in these reasons. The report of Dr Sowden became Exhibit D on sentence. It seems that Dr Sowden's report was provided by the Department of Juvenile Justice with the first of the Juvenile Justice background reports.
There is no issue so far as use of alcohol or illicit substances is concerned.
The offender completed his later years of secondary school at a boarding school at a regional centre.
The second of the reports is principally directed towards s 19(4) of the Children (Criminal Proceedings) Act, and the suitability of the offender serving any sentence of full time custody as a juvenile offender rather than in an adult institution.
I now go to the report of Dr Sowden. Dr Sowden is known to this court as a very experienced and very able clinical psychologist practising in the Albury Wodonga area. The offender self-referred to Dr Sowden and as such is a treating psychologist. She notes that the offender has no pre-existing psychological injuries and that he enjoyed a good upbringing. He enrolled in the Bachelor of Laws and Behaviour of Politics in International Relations course at a regional university.
At page 2 of her report the doctor notes that the offender is keenly aware of his wrongdoing. She recounts that the offender indicated that at the time he was struggling emotionally due to having lost friends to suicide and he had a self reported addiction to pornography. I note that this issue of addiction to pornography is dealt with at some length by Ms Gray-Weale in her report. The offender recounted to Dr Sowden that he was viewing adult heterosexual and adult homosexual pornography and he did not have a preference for either. She notes that the offender never raised lack of parental supervision as any form of justification for what occurred.
Dr Sowden noted that the offender was observed to have been genuinely and deeply remorseful for what he did and that he responded exceptionally well to the sex offender program which she then goes on to summarise. The offender has successfully completed a sex offender program.
It seems that as part of her ongoing involvement with the offender Dr Sowden administered a number of tests to assess risk of reoffending. She sets out the tests that she employed. On the final page of her report she concludes that the offender is in the low category of risk. In the penultimate paragraph of her report she sets out that the offender presents as a very mature 19-year-old man who is very aware of the seriousness of his situation and the seriousness of the impact on the victim. She goes on to say the offender has been observed to take full responsibility for what has transpired, and indeed possible excessive responsibility.
Although Dr Sowden's report was tendered by the Crown, as it should have been the report having been provided by the Department of Juvenile Justice, Mr King counsel for the offender made extensive use of the report in the course of his oral submissions. Given the contents of the report that is hardly surprising.

Subjective Case

No oral evidence was called from or on behalf of the offender. However, there was a volume of written material and extensive oral submissions on behalf of the offender. I will initially go to the report of Ms Gray-Weale, the psychologist. The report is part of the defence tender bundle Exhibit 1 on sentence that bundle is indexed.
The offender's upbringing is again set out at paragraph 6 and continuing of the report. At paragraph 9 it is noted that the offender's mother re-partnered with the father of the victim and that the two families moved in together in 2015. There was no evidence to suggest a family history of mental health difficulties. There was no evidence to suggest that the offender had any difficulties with intellectual functioning, learning and attention, conduct problems or oppositional behaviour.
Ms Gray-Weale also sets out the education of the offender and paragraph 13 noted that the offender indicated his marks were regularly within the top 5% which allowed him entry to university. He found the boarding school experience a positive one. The report also notes that the offender is currently studying at the a regional university.
The report notes that the offender was currently single but has had two heterosexual relationships with same-aged young women, with both relationships lasting around 1 to 1.5 years. There is no evidence of abusive behaviours controlling or coercive behaviour within the relationships.
Under the heading psychosexual history Ms Gray-Weale sets out that the offender reached puberty around the age of 12 or 13 and that he started masturbating and viewing pornography at the age of 13. The offender described an escalating pattern pornography use accessing online content for the shock value. By the age of 15 he was accessing content daily as part of his evening routine. He developed an interest in pornography with male homosexual as well as heterosexual themes and he acknowledged that he regularly accessed content that depicted "rough sex", or content that depicted sex between adult aged stepsiblings. He denied ever accessing child abuse material for pornography with sadistic themes. The offender acknowledged that viewing pornography contributed to him depersonalising and objectifying participants in sexual acts and that the issues related to consent whenever represented in a healthy manner. He indicated that his parents were unaware of his use of pornography though pornography was generally normalised for a teenage male by family and peer groups.
The offender reported to the author of the report that he described experiencing withdrawal symptoms such as irritability, sexual urges, and cravings when he attempted to cease the use of pornography. At the age of 17 he described sleeping on the couch instead of his room to avoid cues that would trigger cravings to use pornography. He reported ceasing pornography use by the age of 18 years. He denied the presence of a paedophilic interest in children despite the offending. The author of the report sets out, at paragraph 24, that there was no evidence of behaviours or interests consistent with other paraphilias. The offender expressed a desire to engage in healthy sexual relationships in the future based on intimacy and respect. His connection to Christianity has reinforced his motivation to engage in healthy relationships.
At paragraph 30 of the report it is noted that the offender described experiencing a period of mood disturbance at around 14 years of age when a friend suicided. This was exacerbated the following year when another friend also suicided. Symptoms included low mood and irritability, impaired motivation, anhedonia, diminished concentration, social withdrawal and suicidal ideation. His mother was concerned about the risk of self-harm at this time. He described his sessions with Dr Sowden as helpful, particularly in terms of understanding and coming to terms with his offences and improving stress management.
Ms Gray-Weale also made an assessment of the offender's personality and mental health. The offender scored in the moderately elevated range for mania, and the mildly elevated range for anxiety, anxiety related disorders, paranoia, borderline features, and antisocial features. The author goes on to say that those results are not necessarily suggestive of specific difficulties, when his age and developmental stage are taken into account. She goes on to say that the results suggest the offender acknowledges difficulties in his life which is motivated to seek treatment.
So far as risk of reoffending is concerned Ms Gray-Weale comments at paragraph 39 of her report that given the age of the offender at the time when the offences were committed, and he is now over the age of 18, there are limited options in terms of valid risk assessment tools that will provide an accurate estimate of his risk of reoffending. The author of the report goes on to comment that risk status generally fluctuates within short time periods for adolescents as they are still developing cognitively and emotionally. Further, Ms Gray-Weale comments that dynamic risk factors that are relevant to current offences may no longer be relevant to future offending.
At paragraph 44 of the report the author observes that using the PROFESSOR checklist the offender's risk has lowered over the past two years of treatment. However, intervention and ongoing assessment is necessary to address any remaining difficulties, however the offender is unlikely to require intensive intervention.
Ms Gray-Weale opines (paragraph 45) that based on information available at the time of assessment the offender was placed within the low range for violent reoffending.
Given this finding, the lack of record, and in particular the fact that the offender has undertaken and completed an active course of treatment with Dr Sowden, I am prepared to find on balance that the offender is unlikely to reoffend. There is nothing within the Juvenile Justice reports that in my view impacts this finding.
Returning to the report of Ms Gray-Weale, she says there is evidence to suggest to the offender met the criteria for major depressive disorder at the time of offences. The author goes on to opine that there is evidence to suggest the offender exhibited a pattern of compulsive sexual behaviour around the time of the offences. Later in the report (paragraph 57) the author opines that the offender's compulsive pattern of pornography use exacerbated his mental health difficulties and contributed to his offending behaviour. The author goes on to opine (paragraph 58) that the offender does not exhibit signs of a targeted sexual interest in children and there is no evidence of other antisocial behaviour.
I am also prepared to find on balance that there is a causal connection between the mental condition suffered by the offender at the time of the offending and the offending. In this regard I note paragraphs 46 to 48 and paragraphs 56 and 57 of the report of Ms Gray-Weale. This too impacts on the role of general deterrence in the sentencing exercise. It follows that I do not accept the submission at paragraph 48 of the Crown's written submissions that there is no such causal connection. I also note the decision of Tepania v R [2018] NSWCCA 247 at [112] and [119] per Johnson J. This issue also impacts on the finding as to the seriousness of the offending.
A little earlier in the report (paragraph 52) the author noted that the offender largely agreed with the statement of agreed facts although he evidently had difficulty speaking about the offences in detail. When asked about his use of grooming during the offences the offender indicated that he felt ashamed and confronted and said he was disgusted with himself. He described feeling distress, shame, and remorse after each offence. He indicated he has felt distress related to sexual arousal since the first offence. This of course has to be seen in the context of the age of the offender at the time of the offending. Given his age at the time (14) impulse control would have been much lower than for someone of the age of the offender at the time he appears for sentence. In this regard I again note the comments of Hodgson JA in BP v R at [5], to which I have earlier referred.
Noting what is in the paragraph immediately above taken with the content of the report of Dr Sowden to which I had earlier referred to I have no difficulty in coming to the conclusion on balance that the offender is remorseful. In particular I note the comment by Dr Sowden that the offender has taken full responsibility and possibly excessive responsibility for his actions. Further, there is a letter from the offender, which is item 1 in Exhibit 1 on sentence. The offender sets out he takes full responsibility for the offending, and he apologises to everyone he has hurt including the victim. I accept the submission advanced by Mr King on behalf of the offender that the remorse is real and genuine and demonstrates genuine victim empathy. In respect of there being no oral evidence from the offender or members of his family I note the decision of the Court of Criminal Appeal in Lloyd v R [2022] NSWCCA 18. In this matter there was no objection to the tender of the reports nor did the Crown require any of the authors of the reports for cross-examination.
The offender self-referred to Dr Sowden, undertook what appears to have been a relatively intensive course of therapy with her, has not offended since the matters which are presently under consideration, and has commenced and appears to have successfully completed the first year of a university degree, which if completed will lead to professional qualifications. In these circumstances I have no difficulty whatsoever in concluding the offender has excellent prospects of rehabilitation.
Not surprisingly, counsel for the offender submitted that I would make a positive finding as to the prospects of rehabilitation. The Crown submitted (paragraph 56 written submissions) that the offender's prospects of rehabilitation and risk of reoffending are difficult to assess. The written submissions by the Crown go on to say that there are some positive indications that suggest a level of optimism. The Crown notes the strong family support enjoyed by the offender. Given the indications to which I have referred I do not regard it as difficult to assess the prospects of rehabilitation, but rather conclude there are excellent prospects of rehabilitation.
It is very obvious that the offender does enjoy strong family support. In that regard both parents have provided letters which are contained within Exhibit 1 on sentence. A thorough reading of those letters indicates the conflicted emotions experienced by both parents. In this regard the offender's mother says in the last paragraph of the penultimate page of her letter, "I care deeply for all involved in this case. My aim all along has been to put [victims] feelings and needs first which is challenging and at times heartbreaking as it means putting my own son's needs second…[(offender] has been understanding of this and never question my support of [victim]."
The offender's mother sets out the offender's achievements including being vice-captain at his high school and house leader. There were very few disciplinary issues with the offender when he was younger. Clearly the offending has had a very significant effect on the blended and extended family. The offender's mother speaks of the course of treatment undertaken with Dr Sowden. The offender's mother expresses concern so far as the outcome of this matter is concerned but clearly offers ongoing support to the offender and importantly the victim.
The offender's father also speaks very well of the offender and in particular speaks of the offender going to stay with him on weekends when his ex-wife and the children left. The offender's father too is obviously very concerned about the outcome of the case.
Although not stated explicitly in the letters both parents of the offender express the hope that a non-custodial sentence is imposed on the offender.
The offender has engaged in casual and part-time work as a student. In that regard there is a letter from the Office Manager of Senator the Honourable Zed Seselja, a Senator for the ACT and Ms Skye Konza, Recruitment Consultant of National Ticeketek.
If there was any doubt about the offender's enrolment in the university degree course the proof of enrolment and academic transcript are items 8 and 9 respectively in Exhibit 1. The offender appears to be progressing well in his degree course, and there is no reason to doubt that he will continue with that degree if he is able to do so.

Statistics and other cases

Following the amendments to the Crimes (Sentencing Procedure) Act, 1999 in 2018 the court in passing sentence is faced with limited sentencing options. If a determination is made that the threshold set out in section 5 of the Crimes (Sentencing Procedure) Act is crossed there must be a sentence of full time custody noting s 67 of the Act. Indeed in BM v R [2019] NSWCCA 223 the Court (Payne JA, Fullerton and Bellew JJ) commented at [12] that, "In approaching this case it is to be noted that the sentencing judge faced very limited sentencing options. On 24 September 2018 the sentencing regime changed and both suspended sentences and Intensive Correction Orders were no longer available…" I merely observe that the lack of sentencing options when faced with a situation such as the Court is faced in this matter is simply not helpful, particularly in light of the options available to the Children's Court.
With his customary thoroughness Mr King has provided the court with relevant statistics kept by the Judicial Commission and details of the cases to which those statistics refer. It is to be noted of a sample of 14 offenders facing sentence for offences contrary to s 66A(1) of the Crimes Act eight were sentenced to full time custody and six were dealt with by Community Correction Orders. The sample of 14 included filters of offenders aged 14 to 17 years. In these circumstances the sample is not as insignificant as might initially be thought.
Given the manner in which this matter was conducted by the parties it will be necessary to deal with some of the decisions in some detail. A submission made by counsel for the offender, which in my view is supported by an examination of the authorities, is that the matters where full time custody was imposed the offending was more serious than the matter presently under consideration.
However, I warn myself on the use and limitations of the statistics, particularly noting the limited numerical sample. I note and have regard to the authorities such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J. I note that in LS v R [2020] NSWCCA 120 Rothman J said at [92] that , "..the use of statistics can be a self-fulfilling limitation".
In BM v R, to which reference has already been made the victim was 4 or 5 years of age and the offender aged between 13 years and 10 months and 15 years of age. The offending included inserting a lollipop stick into the victim's vagina. There were further counts of aggravated indecent assault which included rubbing the victim's bare vagina, kissing the victim and grabbing the victim by her buttocks with both of his hands. The offending occurred over a slightly longer period than the matter presently under consideration. On appeal the sentence was reduced to a total sentence of 18 months with a non-parole period of 9 months.
I have had regard to the decision of the Court of Criminal Appeal in LS v R [2020] NSWCCA 120. The offending (at least as was set out in the agreed facts, but which was qualified by what the offender said to a psychologist - see the additional comments of Simpson AJA at [6]-[8]) involved one count contrary to s 66A of the Crimes Act, which involved the offender who was 16 at the time licking the 4 year old victim "in and around the vagina". The applicant was diagnosed with autism and Attention Deficit Disorder. Rothman J said (Simpson AJA and Bellew J agreeing, both with additional comments) said at [70]-[72]: "I rely on the earlier recitation of the objective facts and the subjective circumstances of the offender. Further, I rely on the opinion of Dr Lennings and the circumstance that the offences do not arise from paraphilia. It seems, and I accept, that the offender has moved on from his preoccupation with genitalia and, in particular, the genitals of young persons. In my view the prospects of the Applicant's rehabilitation are better than "reasonable", and are good, if not excellent. None of the foregoing diminishes the seriousness of the offence. However, the Applicant is not an appropriate vehicle for general deterrence. Nor, given the reason for the offending and the development of the Applicant thereafter, is there a need for specific deterrence. The community can well understand why a person of 14 or 16, with the conditions suffered by the Applicant, should not be used as a means by which other persons can be deterred from committing like offences. Further, given the subsequent maturing of the Applicant, little gain is obtained by condign punishment."
In LS v R the original sentence imposed was 6 years and 9 months with a non-parole period of 4 years. On appeal the aggregate sentence imposed was 4 years 9 months with a non-parole period of 2 years 9 months. Given the age of the victim in that matter it is more serious by some distance than the matter that I am considering.
The matter of R v DT [2019] NSWDC 673 involved an offender who was 16 to 17 years of age and therefore several years older than the matter presently under consideration the victim was nine or 10 years of age. The victim was in the bathroom, the offender entered and told her to get on her knees. The offender pulled down his pants and told the victim to rub his penis which she did. He then told her to lick it, the victim said she did not want to and the offender placed his hands to the back of the victim's head and forced it towards his penis. His penis was in her mouth for about a minute. The offender then attempted penile intercourse but was interrupted by the presence of a family member in the house. The offender made full admissions, was remorseful, had good family support and the court found reasonable prospects of rehabilitation and that he was unlikely to reoffend.
The total aggregate sentence imposed was 3 years 4 months with a non-parole period of 1 year 8 months. It does not appear that the sentence was subject to an appeal by either party. In that matter I note that given the age of the offender it was more serious than the matter presently under consideration.
The other decision that has been published is R v KL [2019] NSWDC 731. The offender was 16 and the victim was 7. The offending involved penile/vagina intercourse and digital intercourse on separate occasions on the one day. The learned sentencing judge concluded that the penile/vaginal intercourse was "well into the mid-range" and the other count as a "low range" offence. The offender came from unusual social background in that his family did not appear to understand the moral and legal wrongness of sexual activity with underage children. An aggregate sentence of 2 years 6 months with a non-parole period of 15 months was imposed. The sentence does not appear to have been subject to an appeal by either party. Given the age of the offender and the nature of the offending in respect of the first count that matter is more serious than the offending presently under consideration.
I note my own decision in the matter of R v ROK [2021] NSWDC 448. The offender was sentenced in respect of three counts contrary to s 66A and one count of Sexual Touching of a child between 10 and 16 years. An aggregate sentence of 4 years with a non-parole period of 2 years was imposed. The offender was 15 at the time of the offending. There were three victims, one 8 years of age, one 6 years of age and the other 11 years of age. The intercourse involved fellatio and penile/anal intercourse. The offender had a mild intellectual disability. There was a history of juvenile offending. The offender was slightly older, one of the victims was 6 and therefore younger than the victim in the matter presently under consideration. One of the victims was 8 and therefore only marginally younger than the victim in the present matter. Counsel for the offender conceded that there would have to be a sentence of full time custody.
Mr King submitted, and I accept that so far as the six matters to which the statistics relate where community correction orders were imposed, the remarks on sentence have not been published. However, he favoured the court with details of the cases provided by the Judicial Commission as part of the statistics. In one matter the offender was aged 14 to 17 years, there was a plea of guilty, one offence only, form one matters and nil priors. A community correction order of two years was imposed.
The next matter also involved an offender aged 14 to 17 years, with multiple offences and form one matters, no priors and a plea of guilty. A community correction order of three years duration was imposed. Another matter also has the characteristics of one offence only, no form one matters no priors, a plea of not guilty and an offender aged 14 to 17 years. The remaining three matters all involve multiple offences, form one matters no priors on the plea of guilty with offenders aged 14 to 17 years. Community correction orders of either two or three years imposed.

Competing submissions

Mr King commenced his oral submissions with the submission to the effect that while it was open to the court to impose a sentence of full-time custody given the nature of the case, the circumstances of the offending and the subjective case in this case the court was not required to do so on the authorities. I understood this submission to be to the effect of that while a sentence of full-time custody would be within the appropriate sentencing range so would a disposition that did not involve full time custody.
This submission was expanded upon and included a submission that all sentencing matters require individual justice. Mr King reminded the court of the decision in R v Lattouf unrep. NSWCCA 12 December 1996, in which Mahony ACJ said at p 3 of the printout obtained during the sentence hearing: "…A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. As I have elsewhere said, if justice is not individual it is nothing: Kable v DPP (1995) 36 NSWLR 374 at 394.
The Crown at paragraph 61 of the written submissions, and also in the course of oral submissions put that the only appropriate sentence is one of full time custody. It is because of these competing submissions that I have spent some time dealing with the subjective material, including the report from Dr Sowden and the authorities referred to in the table annexed to the Crowns written submissions.
Mr King put that the court is left with a binary choice given the operation of the 2018 amendments to the Sentencing Act. I have referred to this earlier in these reasons. Mr King reminded the court of the decision of the High Court of Australia in Markarian v The Queen (2006) 228 CLR 357 and continued with the submission that the court has a very wide discretion to make findings. While the court has a wide discretion nevertheless the discretion must be exercised according to established principle.
The submissions by Mr King continued that the court should not only give lip service to section 6 of the Children (Criminal Proceedings) Act, but rather should give absolute application to that section. Later in his submissions he submitted that sub paragraphs (b), (c), (d) and (f) have particular application in this matter. I have previously set out the section. I accept Mr King's submission.
Further Mr King submitted that four factors point to full time custody not being required in this matter. Those matters in summary were the age of the offender at the time of the offending, the mental state of the offender at the time of the offending, the demonstrated remorse, and the established rehabilitation. I have addressed those issues earlier in these reasons. I have also addressed the issue of the principles to be applied when sentencing for offending where the offender is a juvenile.
Mr King made comprehensive submissions as to the objective seriousness of the offending. That has also been dealt with earlier in these reasons. Extensive submissions were made on the subjective case, I have dealt with the issues raised in the subjective case in these reasons. In particular I note for reasons given earlier I have made positive findings in favour of the offender in respect of remorse, being unlikely to reoffend, and having excellent prospects of rehabilitation.
Submissions were also made by Mr King as to the various authorities to which I have referred and from which I have extracted. The thrust of Mr King's submissions, as I understood them to be, were that the cases indicate that the disposition he submitted was appropriate in this matter was within the appropriate sentencing range.
The Crown in the written submissions (MFI one on sentence) sets out the history of negotiations so far as the plea is concerned. At paragraph 16 the Crown concedes a discount in the order of 10 to 15% is appropriate. Mr King submitted that in the circumstances the court should allow the upper end of that range conceded by the Crown. It will be obvious that I have acceded to Mr King's submission in this regard.
The Crown then in detail (this is not a criticism but rather an observation) goes through the offending to which each of the counts relate and make submissions as to the objective seriousness of the matters. That issue has been the subject of consideration earlier in these reasons. The Crown also deals with the principles relating to dealing with juvenile offenders. For reasons given earlier in these reasons I have found the offending less objectively serious than submitted by the Crown. The Crown's ultimate submission as to the sentence to be imposed in this matter has to be seen in the context of the Crown's submission as to the seriousness of the offending.
I have referred already to the issue of the causal connection between the offenders excessive use of pornography and his offending. Given the unchallenged report of Ms Gray-Weale with which I have dealt in some detail I do accept there is a causal connection. I am fortified in that finding by the content of Dr Sowden's report.
The Crown in oral submissions put that the court should be careful with accepting a retrospective diagnosis of major depressive disorder. In this regard the Crown submitted I would hesitate to accept the retrospective diagnosis because of the evidence of the offender being an over-achieving student on the contents of the letter of the offender's mother. With respect, in the absence of any cross examination or other evidence or expert opinion the court can really only act on the material available. As the major depressive disorder is a matter in mitigation that need only be proved or established (by the offender) on balance. In all the circumstances I am unable to reject the diagnosis.
In supplementary submissions the Crown indicates no opposition to any sentence that is imposed being served in a juvenile justice institution. As very much a secondary submission Mr King submitted that if I did impose a sentence of full time custody I would make a finding of special circumstances and further orderd that any sentence be served in a juvenile justice institution.

General remarks

The offending on which I am passing sentence is a "Serious Children's Indictable offence" as defined by s 3 of the Children (Criminal Proceedings) Act, 1987. There is no alternative other than to deal with the matter according to law. Be that as it may given the age of the offender at the time of offending the principles relating to the sentencing of juvenile offenders apply. This is why I have set out in some detail those principles.
I must give regard and proper effect to the provisions of sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5(1) provides in effect that a court should not impose a sentence of imprisonment unless it first of all comes to a conclusion that no other sentence is appropriate. That is the very significant consideration that falls to be made in this matter. As is so often the case where a court is required to pass sentence in respect of serious offending there is a very real tension between the competing purposes of punishment and many of the factors pull in different directions.
In the course of the sentence hearing I may have referred to the little known decision in Tsokos unrep. NSWCCA 16.6.1995. (RS) Hulme J (Gleeson CJ & Powell JA agreeing) said: "Before I come to the question of what should happen to the appeal, two further matters should be mentioned. Though his Honour felt that the Respondent's youth and prospects for rehabilitation militated against a full-time custodial sentence, he arrived at the much more lenient orders which he ultimately imposed because he saw what to him were fundamental objections to all the intermediate courses. He saw, in the decision of this court in the R v Christine Blair (unreported, 20/11/1987) authority for the proposition that if what he saw as the appropriate level of punishment was not available he should, as he put it, come down a peg. It was thus in his reasoning he moved from periodic detention to orders under the Community Service Orders Act (unavailable because of the age of the Respondent), to orders under the Children (Community Service Orders) Act to the bonds ultimately imposed. R v Christine Blair is no authority for this approach. In that case the court was certainly presented with a situation where the orders it thought appropriate could not be carried out because the Probation and Parole Service was not prepared to do what the court wished and the court recognised that it had only two options - to impose a full custodial sentence which it had earlier concluded was not desirable or, secondly, to impose something which approximated the orders the court thought appropriate. It was able to do the latter and never had to consider a situation where the second option was substantially different from the course considered appropriate. There is nothing in R v Christine Blair to support the view that a court, unable to impose a sentence it regards as theoretically the most appropriate, is obliged to impose a sentence that is more lenient. The correct approach is to choose from the available options the sentence which is most appropriate."
While there is no more recent authority contrary to the decision on closer consideration the decision is of little assistance in this matter, given the effect of s 5 of the Crimes (Sentencing Procedure) Act. In the matter presently under consideration as I have previously set out the decision is quite stark. If I come to the conclusion that the threshold within that section is met then there must be a sentence of full time custody.
It should be obvious from these reasons I have given this matter a very great deal of consideration. Much is at stake for the offender. However, the offending was very serious and indeed some of the most serious on the criminal calendar. There is a particularly strong subjective case, not the least of which is the demonstrated efforts at rehabilitation.
After a great deal of consideration I have come to the conclusion that for a number of reasons including the age of the offender at the time of the offending, my findings as to the objective seriousness of the offending, the matters in the subjective case, and the authorities and cases (noting cases decided in the District Court could not be said to be authorities) to which I have referred, despite what is undoubtedly very serious offending, this is a matter, although barely, that can be dealt with by other than a sentence of full time custody.

Orders

In respect of each of the three counts on the indictment to which the offender has pleaded guilty he is convicted.
In respect of counts 2 and 7 the offender is released on a Community Correction Order for 2 years and 6 months.
In respect of count 4, taking into account the matter on the Form 1 document the offender is released on a Community Correction Order for 3 years.
Each of those Community Correction Orders is conditioned that the offender: 1. Not commit any further offences; 2. Appear for sentence at any time in respect of any breach within the said period; 3. For the period of the Orders or for any lesser period deemed appropriate the offender will accept the supervision of the Department of Community Corrections and further obey all reasonable directions of that Service relating to ongoing counselling for mental health issues. In particular he is to obey all reasonable directions in relation to ongoing treatment and counselling by Dr Sowden; and 4. Obey all reasonable directions of any treating health professional; and 5. Not to assault, molest, interfere, stalk, contact or be with the victim in the matter.

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: 12 December 2022

At a glance

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Judgment (13 paragraphs)

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Cases Cited (42)

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