R v KNL

Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 [2004] NSWCCA 303 Thomson and Houlton [2000] NSWCCA 309 R v Sea CCA (unreported) 13 August 1990 R v McClymont CCA (unreported) 17 December 1992 CASES CITED: R v Dent CCA (unreported) 14 March 1991 R v T (1990) 47 ACrimR 29 R v Paris [2001] NSWCCA 83 R v Daetz; R v Wilson [2003] NSWCCA 216).

DPP - Appellant PARTIES: KNL - Respondent

V Lydiard - Appellant COUNSEL: G Turnbull - Respondent

S Cavanagh - Appellant SOLICITORS: T Dalla - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/709

BROWNIE AJA BUDDIN J LATHAM J

1 BROWNIE AJA: I agree with Latham J 2 BUDDIN J: I agree with Latham J 3 LATHAM J: The Director of Public Prosecutions appealed against the asserted inadequacy of a sentence imposed by his Honour Judge Finnane in the District Court at Orange on 8 April 2005, pursuant to s 5D of the Criminal Appeal Act 1912. The Respondent pleaded guilty to one count of sexual intercourse with a child between the age of 10 and 16 years, pursuant to s 66C(1) of the Crimes Act 1900, as it then was. The offence carries a maximum penalty of eight years imprisonment. 4 The Respondent ultimately received the benefit of a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999. On the hearing of the appeal, the Court allowed the appeal, set aside the sentence imposed on 8 April 2005 and re-sentenced the Respondent by convicting him of the offence and imposing a bond under s 9 Crimes (Sentencing Procedure) Act to be of good behaviour for 18 months, to date from 18 July 2005 and to expire on 17 January 2007. These are my reasons for joining in that decision.0 5 The matter came before his Honour on 3 June 2004, at which time the Crown tendered a statement of facts, together with other material, including a statement by the Respondent, a victim impact statement, pre-sentence report, and a copy of the Respondent's criminal antecedents. (Ex B) 6 The statement of facts indicated that the Respondent met the complainant in February 2003 through mutual friends in Orange. The Respondent had obtained the complainant's mobile phone number and they had contacted each other on a number of occasions.

7 At some time between 3 March and 10 March 2003, the Respondent met the complainant outside Orange High School and drove her to a house in Orange, occupied by a friend of the Respondent. Inside the house the Respondent took the complainant to a bedroom where they watched DVDs in the company of the Respondent's male friend. 8 In the course of the morning, the Respondent drove his male friend to another location before returning to the house and the bedroom. 9 Later that afternoon, the Respondent told the complainant he wanted to have sex with her and removed her tracksuit pants and underpants. The Respondent then had vaginal intercourse with the complainant, during which the complainant asked him several times to "pull away". Following intercourse the Respondent fell asleep. The complainant got up and replaced her clothing. She remained at the house, not knowing what to do. At about 3:30pm the Respondent took the complainant to her home. 10 The complainant was 12 years and 2 months old at the time, having been born on 5 January 1991. The Respondent was 19 years and 6 months old, having been born on 26 August 1983. 11 Whilst the complainant did not tell her parents of the events of that day, some time later she disclosed the incident to two of her friends. In May 2003, the complainant told her father of the incident, whereupon her father approached the Respondent, who admitted having sexual intercourse with her. Thereafter the matter was reported to the police. 12 On 7 August 2003, the Respondent went to Orange Police Station with his solicitor. He declined to be interviewed, but produced a two page statement, dated 5 June 2003, admitting that he had sexual intercourse with the complainant. That statement was before the Court, as part of Ex B. 13 The statement related to the meeting in February 2003 between the Respondent and the complainant, at a time when the complainant was in the company of two other males and two females. The Respondent said he was with a friend, SE. On this occasion, according to the Respondent, the complainant told SE in his presence that she was 16. The complainant gave the Respondent her mobile phone number and the Respondent later sent her a text message. He said that the complainant and he exchanged text messages on a daily basis. At some point they arranged to go to the movies and did so in the presence of other male persons and two of the complainant's female friends. On this occasion the complainant told the Respondent that she was 16. 14 The Respondent stated that on the occasion of 3 March 2003 he took the complainant to the house of a male friend, where he and the complainant engaged in consensual sexual intercourse. The statement further asserted the Respondent's belief that the complainant was 16 years of age. In the course of the sentencing proceedings, the Respondent's legal representative tendered a number of unsworn statements from male friends of the Respondent's, variously dated between 2 October 2003 and 3 June 2004. Those statements recounted the occasions on which the friends of the Respondent had been in the company of the Respondent and the complainant and were generally confirmatory of the Respondent's account, namely that the complainant had told him she was 16 years of age. 15 Following the charging of the Respondent on 7 August 2003, the matter next came before Orange Local Court on 2 September 2003, where a plea of guilty was indicated. On 28 October 2003 the matter was committed for sentence from Orange Local Court. 16 The Respondent's antecedents disclosed one prior entry, being a summary offence of behaving in an offensive manner in/near a public school or place, recorded at Orange Local Court on 2 March 2004. The Respondent received the benefit of a s 10 bond on that occasion. The offence however was committed on 25 September 2003, that is between the date of charge and the Respondent's committal for sentence. 17 The Respondent's asserted belief in the age of the complainant and the statements in support thereof assumed considerable importance in the sentencing exercise. The pre sentence report of 14 May 2004 referred to the Respondent's attitude in the following terms: Mr L maintains that he was not aware that the victim was under age at the time of the offence. During interview Mr L appeared to minimise his responsibility in the offence. He was also disinclined to discuss personal issues, showed little empathy for the victim and tended to transfer blame to her.

18 The remainder of the case on behalf of the Respondent on 3 June 2004 consisted of a number of testimonials, a letter under the hand of a Mental Health Counsellor and the evidence of the Respondent's mother. Apart from general evidence going to the Respondent's home life, education and employment history, the Respondent's mother gave evidence that the Respondent had told her that he was sorry that it ever happened (transcript p 11, 3 June 2004). The Respondent gave no evidence. 19 Following the close of evidence on sentence, his Honour heard submissions from the Respondent's legal representative and from the Crown. It was common ground that the Respondent had made full admissions at the first available opportunity, indeed as soon as he was confronted by the complainant's father. His early plea of guilty entitled him to the full measure of the discount identified by this Court in Thomson and Houlton [2000] NSWCCA 309. It was also common ground that he was entitled to the benefit of his prior good character, and that the Respondent's subjective circumstances were generally favourable. 20 The Respondent's legal representative devoted most of his submissions to his client's asserted belief in the complainant's age. The Respondent's solicitor in effect argued that the Respondent's belief in the complainant's age operated to mitigate the objective gravity of the offence. It was indicated to his Honour that the authors of the various statements tendered to the Court in the Respondent's case were present at Court and available for cross-examination if required. They were not required to be called by the Crown. 21 Following a lengthy exchange between his Honour and the Respondent's solicitor on the subject of the age of consent, the following took place: HH: So you've got this young man, he picks up this girl, he asks her if she's 16, I suppose you're saying you want a s 10 dismissal …. D: No your Honour. HH: -- is that the story? D: I don't say that but one interesting aspect of this, is that as a consequence of the paedophile legislation this is an offence which is scheduled as a reportable offence and now no matter what your Honour does with the matter this will be - his name will be placed on that not quite sure what it's called is it -- HH: Some form of register. D: --the register where he then has to go and declare it if he moves homes and all that sort of stuff, has to tell the police where he's going to live. HH: I'm not sure if it applies if this is a s 10 dismissal but -- D: As I understand it, it applies across the board. HH: I think it probably does. D: I'm told that in fact it doesn't apply to a s 10 by my friend I'm thankful for it. HH: But in any event, this is all very interesting you're saying it should be a s 10 dismissal or a s 10 bond or something so that he doesn't get his name on some register. D: Something that would then, he would, no matter what, would wear for the rest of his life, would not be able to seek any employment - well employment in a large area, but one other fact that would -- HH: I think the mining industry isn't likely to bring him in contact with children -- D: I, that's what I was about to say, in the areas that he is likely to seek employment that's not going to impact upon -- HH: He's not likely to go round trying to become a kindergarten teacher or a-- D: Well you heard his mother say he's not that academically inclined. HH No. Yes, yes well. D: So if your Honour is not with me in relation to the s 10 it'd be my submission that a s 9 with supervision would be the appropriate outcome. Unless I can be of ay further assistance those would be my submissions. (T pp 3 - 5)

The reference to "the paedophile legislation" was a reference to the Child Protection (Offenders Registration) Act 2000 (the Offenders Registration Act). This Act and its potential impact on the Respondent came to play a significant part in the sentencing proceedings from this point on. The Crown submits that an examination of what followed demonstrates specific error on his Honour's part which caused his Honour's sentencing discretion to miscarry. 22 The Crown immediately submitted that a s 10 dismissal was not appropriate to the circumstances of this case. The Crown referred his Honour to R v McClymont CCA (unreported) 17 December 1992 wherein the Court stated that the general policy underlying offences of this nature resides in the need to protect children from sexual conduct even though they may be willing participants. Whilst acknowledging that the complainant's consent may be a mitigating factor, the Crown impressed upon his Honour the importance of the general principles expounded in the course of this Court's decisions in R v Dent CCA (unreported) 14 March 1991, and R v T (1990) 47 ACrimR 29. In short, the Crown made it abundantly clear that the Respondent's subjective case, together with his erroneous belief in the complainant's age, could not outweigh the objective gravity of sexual intercourse with a child as young as 12 by an adult, albeit one who had attained that status as recently as 18 months prior to the commission of the offence. 23 The matter was stood over to the following day when the parties expected his Honour to proceed to sentence. However, his Honour elected to stand the matter over, pursuant to s 11 of the Crimes( Sentencing Procedure) Act, with a view to allowing the Respondent further access to counselling and supervision by the Probation and Parole Service. 24 Some detailed reference to his Honour's reasons for the remand is necessary in order to deal with the Crown's contention on the hearing of the appeal that his Honour erred in two specific respects, namely, in the misapplication of s 10 to the circumstances of the case and in having undue regard to the consequences of a conviction. 25 His Honour's judgment of 4 June 2004 related the facts giving rise to the offence and the evidence, such as it was, supporting the respondent's claimed belief as to the complainant's age. 26 His Honour then remarked: I am unable to determine, not having heard them give any evidence, exactly what it was that made them or the offender, who also has given no evidence, think that this girl was sixteen. Apart from some descriptions that some of them give about clothing and uniforms and so on, it is surprising to me that a girl just over 12 could be mistaken for someone who is 16. (R/S pp 2 - 3, 4 June 2004) 27 His Honour next referred to a difference of opinion between the Probation and Parole officer and the local Mental Health Counsellor on the subject of the extent of the Respondent's remorse and empathy for the victim. Ultimately, his Honour was sufficiently concerned by the disparity of views on this matter that a further period of remand was seen as appropriate to attempt to resolve these doubts. However, before pronouncing that result, his Honour took up the consequences of a conviction, as canvassed the preceding day. 28 His Honour referred to the general scheme of the Child Protection (Offenders Registration) Act 2000 in the following terms: If he is convicted, not only does he have to register, this Court has to notify the Commissioner of Police and him of his obligations to register. Thereafter throughout a good deal of his life, if not all of his life, whenever he changes addresses, moves interstate or does anything much, he is required to notify police of his movements. There is a related Act which deals with employment. The related legislation prohibits employment where children are concerned, unless a Commission …. Of Children and Young Persons … gives him authority to do so, or the Administrative Decisions Tribunal or the Industrial Relations Commission gives him that consent. Any conviction for this offence then, has more than usual repercussions for any offender. ….. At the present time I am uncertain, I do not wish to blight a young man's entire life. The effects of registration under this legislation of course is very serious and will undoubtedly affect him for the rest of his life if he has to register, so I propose to put him on bail and seek some further guidance from Probation and Parole … I could not under s 10, for example, regard this as a trivial offence, but there may be extenuating circumstances. (emphasis added) 29 Two things emerge from these remarks. First, his Honour was troubled by the Respondent's assertion that he believed the complainant to be 16 years of age. In any event, this aspect of the matter was one of two major planks in the Respondent's case on sentence. The Respondent's solicitor placed considerable emphasis upon it as a mitigating factor. Given its prominence in the proceedings, it seems clear that, at least as at 4 June 2004, his Honour was not prepared to regard such a mitigating factor as sufficient to constitute extenuating circumstances for the purposes of s 10. 30 Second, if the Respondent's unchallenged belief in the complainant's age was not thought capable of amounting to extenuating circumstances at that stage, and given an express finding that the offence was not trivial, the only remaining consideration inclining his Honour towards a s 10 outcome was the effect of the Offenders Registration Act. In view of his Honour's references to that effect as "very serious" and a "blight [on] a young man's entire life", it is difficult to escape the conclusion that those particular consequences of a conviction were foremost in his Honour's mind in determining the potential disposition of the matter. 31 The matter was adjourned for sentence to 11 November 2004 at Dubbo District Court. However, it appears that the matter went over to a further date, namely 8 April 2005, on which occasion a further pre sentence report was tendered. A further victim impact statement was also tendered on this occasion. 32 On 8 April 2005, his Honour and the parties returned to the evidence in respect of the Respondent's belief in the complainant's age. His Honour took the view that in the light of the uncontested statements tendered in the Respondent's case, he was obliged to accept that the Respondent did believe the complainant to be 16 years of age. The Crown's response was that the Crown was not in a position to lead any evidence from the complainant, but that it was open to his Honour to make a finding that such was the Respondent's belief at the relevant time. Whilst the Crown sought to resile from that position on the hearing of the appeal, I am not persuaded that his Honour erred in the approach that he took. True it is that his Honour was not bound to accept unsworn and untested evidence, but the Crown's concession as to this finding of fact removed any meaningful obstacle to such a finding. 33 Thereafter some further discussion ensued in an attempt to resolve a perceived conflict within the pre sentence report of 1 April 2005. The report adverted to this aspect of the matter in the following terms: Mr L's response to this service continues to be somewhat half-hearted with ongoing reluctance to discuss details related to the offence. He maintains the position that he believed the victim to be 16 years old at the time of the offence, however in spite of his current knowledge to the contrary, Mr L continues to minimise his responsibility and demonstrates little empathy for the victim.

The report also referred to an assessment completed by the Respondent at the Community Health Centre in Orange on 16 August 2004. The psychologist who completed that assessment advised the Probation and Parole Service that "after some initial hesitancy Mr L was open and responsive during interview" and "indicated some insight into his behaviour taking ownership for what had occurred". 34 In the result, despite that conflict, his Honour was persuaded that there was no need to subject the Respondent to further supervision. The Crown largely repeated the submissions on sentence which had been made on the prior occasion. The Crown conceded that the sentencing exercise was a difficult one. 35 More particularly, the Crown insisted that, "in relation to [the imposition of a s 10 bond] … whether he goes on the register or not is not a matter that should be affecting your Honour's decision as to the manner in which this matter is disposed of. It is a consequence of an order that the Court makes in respect of this matter. It should not be taken into account as to whether or not a conviction should or should not be recorded in this instance." (T p 9, 8 April 2005) 36 In response to this submission, his Honour expressed the view that he was obliged to take the consequences of a conviction into account: There are two penal consequences that flow from the conviction for sexual assault. One is perhaps a gaol sentence. The other is the requirement that the person's name be put on a register and kept on that register forever basically and so if people commit these sexual offences they can expect a number of penalties that flow from it. (T p 10, 8 April 2005) 37 His Honour went on to refer to the requirements imposed under the Offenders Registration Act 2000. His Honour was of the view that the requirements as to registration and the restrictions on employment where children might be involved were life-changing consequences and that in those circumstances: The question really is whether I should say that because he's 19 and not 25 or 26 or 35 or something and because he believed this girl was over the age of 16 I should treat it by way of giving a sentence where in effect no consequence of any kind follow. There is no conviction, there is no registration, there's nothing. For a serious offence carrying 8 years imprisonment that would have to be an exceptional course I would have thought. (T p 10, 8 April 2005) 38 Shortly thereafter his Honour repeats the observation that a s 10 dismissal is meant for cases of an exceptional nature and acknowledges that matters of the instant kind generally involve a sentence of imprisonment. 39 Before turning to the remarks delivered on sentence on 8 April 2005, it is pertinent to note that in respect of the three issues canvassed by his Honour in the course of his remarks on 4 June 2004, namely, the Respondent's belief in the complainant's age, the extent of the Respondent's remorse and the potential impact of the Offenders Registration Act, nothing had changed in the interim. The Probation and Parole officer was still at odds with the Community Health Centre psychologist, the state of the evidence on the Respondent's belief as to the complainant's age had not been supplemented and the effect of a conviction was a given. 40 In the course of his Honour's remarks on 8 April 2005, the offence was described in these terms:- The circumstances of the offence itself are not very pleasant … He got her consent, grudging though it may have been. He exploited the situation. She may have appeared to be over the age of 16, but clearly she was a 12 year old. Once he had sex with her he just went away. … I cannot base a sentence on feelings of exploitation or upset. … The fact that [sexual activity] is exploitative in nature may affect, may be a matter of morality, but it is not a matter of criminality. In this case, criminality is involved because, in fact, she was under the age of 16 and it is no defence to say that he believed a 12 year old was a 16 years old - even if he had every good reason for believing it. … I think also the facts enable me to say he was not fully aware of the consequences of his actions, because he did not know her age - he thought she was over the age of 16. I think it unfortunate that he should have had the attitude that, as a 16 year old, she would be good for a bit of seduction. It is an exploitative attitude. (pp 4 - 5, T 8 April 2005). 41 The tenor of these remarks suggest that his Honour assessed the Respondent's culpability in terms of the sexual exploitation of a 16 year old. The Respondent's counsel argued on the hearing of the appeal that his Honour was entitled to view the objective gravity of the offence in this way and that to do so was consistent with the approach taken by the Court in R v Sea CCA (unreported) 13 August 1990. Relying upon the judgment of Badgery-Parker J in that case, the Respondent's counsel submitted that in the circumstances of this case, the Respondent could not be said to have exploited the youth of the complainant, once it was accepted that he believed her to be 16. 42 It is trite to observe that sexual intercourse with a child of 12, knowing the child's age, is objectively more serious than sexual intercourse with a child of 12, in ignorance of the child's true age. However, it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence; R v T (1990) 47 ACrimR 29.

43 The complainant was just over 12 years of age. She was closer to ten than she was to 16, yet that feature of the offence was largely disregarded, in favour of the mitigation constituted by the Respondent's mistaken belief as to her age.

44 Following a brief reference to the available sentencing options, his Honour excludes a sentence of imprisonment and a community service order (the former on the basis that the Crown had not argued for imprisonment and the latter on the basis that Probation and Parole had assessed the Respondent as unsuitable). Of the remaining options, a s 9 bond or s 10 disposition, his Honour determines the outcome by having regard to the consequences of a conviction pursuant to the Offenders Registration Act (T p 7, 8 April 2005). His Honour repeats the observations made on 4 June 2004 regarding the requirements of registration and restrictions on employment under the Act. These obligations are described by his Honour as "a very severe consequence" of a conviction. The Respondent is described by his Honour as but one example of "young selfish men, who are mistaken about somebody's age, and who show no sexual abnormality about them" (T p 8). This class of offender is, according to his Honour, not predatory and therefore not the target of the Offenders Registration Act. Accordingly, the Respondent was placed on a bond for two years under s 10. 45 Having made that determination, his Honour says that he has "taken into account his character, his antecedents, his age and his apparent mental condition". His Honour then refers to "the extenuating circumstances in which the offence was committed, that is, that he believed he was having sex with a girl over the age of 16 years." (T p 9) 46 It is well settled that s 10(3) of the Crimes (Sentencing Procedure) Act requires the court to have regard to all four factors listed under that subsection. His Honour did not have regard to s 10(3)(b), that is, the trivial nature of the offence. Whilst it is not necessary that a finding be made as to the trivial nature of the offence before proceeding to disposition under s 10, it would seem anomalous to make an order under s 10 in the face of an express finding that the offence was not trivial. Yet that is what his Honour did. (See R v Paris [2001] NSWCCA 83; Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2004] NSWCCA 303.) 47 It is apposite to revisit what Howie J said in Re Attorney-General's Application under s 37 at par 132:- But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration. However, just as the discretion inherent in the section cannot be limited by the application of some overreaching general principle, neither can it be broadened simply because a court does not agree with Parliament's view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable. (2004) 147 ACrimR 546 at 557 to 576. 48 This was an objectively serious offence given the complainant's age. It may have been towards the lower end of the spectrum for offences of this kind, but the Respondent's belief as to the complainant's age could not of itself deprive it of that character. General deterrence was an important factor in sentencing, particularly where the Respondent's community consisted of like-minded young men who were prepared to uncritically accept what they were told as to a girl's age. The scope for the operation of s 10 was, in my opinion, misconceived by his Honour, the more so because he sought to factor in the so-called punitive effects of a conviction. 49 Before leaving this aspect of the matter, I doubt that, in the circumstances of this case, the requirements as to registration under the Offenders Registration Act could be properly characterised as extra-curial punishment entitling the Respondent to any mitigation of penalty. The Respondent was not, at the time of sentence, or likely in the future to be, pursuing an occupation which gave him access to children. Many pieces of legislation require persons to register their details with police or other public authorities, in the interests of public health and safety, for example, legislation relating to the possession of firearms. The cases which have thus far considered the notion of extra-curial punishment have been restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence. (See generally R v Daetz: R v Wilson [2003] NSWCCA 216). 50 I do not mean to suggest that there could never be a case where extra-curial punishment might arise from the requirements of the Offenders Registration Act, but this case fell far short of any penal consequence being visited upon the Respondent because of a conviction. Even allowing for some regard to the requirements of registration and the potential restriction on employment, that factor deserved very little weight; R v Daetz at par 62. 51 In my opinion, the Crown's submissions in respect of specific error in the sentencing exercise have been made good. His Honour failed to observe the requirements of s10. In particular, his Honour failed to have due regard to the complainant's age in assessing the objective gravity of the offence, and his Honour allowed the consequences of a conviction to override considerations of punishment and general deterrence. 52 Whilst the discretion to re-sentence must be exercised with appropriate regard to the double jeopardy faced by the Respondent, I am of the view that the intervention of this Court is called for. The very least sentence which is capable of reflecting the objective gravity of this offence, allowing for the Respondent's early plea of guilty, and strong subjective case, is the recording of a conviction. The order pronounced at the hearing was the appropriate one in all the circumstances of the case, given that the offence was committed over two years ago and the Respondent has been subject to a bond since April of this year.

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