R v MW

Assessment

1. Before making a determination of the assessment of the objective seriousness of the offences it will be necessary to go to Exhibit 1 on sentence, a report by Mr John Sheppard, Psychologist.
2. At p 2 of the report the following appears: "While Mr W scores on the various sub-tests and his overall intelligence Quotient are not included in the Pre-sentence Consultation Report, it is clear that because he has been assessed as functioning within the range of intellectual disability his IQ, at best, is only 70. … As such Mr W meets the criteria for what, in Australia, is technically called mild intellectual disability. The word mild should not be misinterpreted in that the condition involves substantial deficits in reasoning, problem solving, planning, abstract thinking, judgements, academic learning and experiential learning."
3. In the decision of Tepania v R [2018] NSWCCA 247 Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
4. His Honour a little later on the issue of moral culpability said at [119]: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
5. Clearly, given the effect of the decision in Tepania, the issue of the offender's intellectual functioning will need to be factored in to the assessment of the objective seriousness of the matter.
6. Count 1 involves skin on skin contact with the offender placing his face on the bare vaginal area of the victim who was only 3 or 4 years of age at the time. The offender was 15. Any penetration would have resulted in a more serious charge. I observe however that the conduct in which the offender engaged came very close to cunnilingus, which is of course, sexual intercourse.
7. Generally, the younger the victim the more serious the offence will be regarded - see for e.g. R v AJP [2004] NSWCCA 434 at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].
8. Even making allowances for the intellectual functioning of the offender as required by Tepania, the criminality in count 1 is above mid-range.
9. I also observe that the matter on the Form 1 is no minor matter with the victim being six and the offending involving ongoing conduct of the offender placing his face at the genital area on the outside of clothing and then touching the victim's vagina with there being skin on skin contact. If it is necessary to make an assessment of that matter it is upper end of the mid-range.
10. Count 2 is also a very serious matter. The victim was four years of age and the offender 26 years of age. The nature of the conduct was serious in circumstances where the offender was supposed to be looking after the victim. The conduct involved some degree of force in pushing the victim against the television cabinet and removing her lower clothing. The touching involved parting the labia of the vagina. In all of these circumstances, again making allowances for the intellectual functioning of the offender, the matter is well above mid-range.

Method of approach to count 1

1. What follows under this heading is essentially a repeat of what I said in R v RP [2015] NSWDC 125. The offending occurred when the offender was 15 years of age and therefore a juvenile. Had the offences been reported at the time of commission or close to the time of commission the offender would have been entitled to be dealt with pursuant to the provisions of the Children (Criminal Proceedings) Act 1987. For example, s 14(1)(a) of that Act provides in essence that a child under 16 cannot be convicted by the Children's Court.
2. In R v AA [2017] NSWCCA 84 Beech-Jones J (Leeming JA, Hulme J agreeing) said at [64]-[67]: "[64] I do not accept that the sentencing judge merely referred to the provisions of the Children (Criminal Proceedings) Act as part of a recitation of the submissions made during the sentencing hearing. Instead, his Honour had regard to that legislation as a matter in mitigation of sentence. His Honour stated he would consider the regime for sentencing children "in the same way as I would take into account a different sentencing regime in other cases of, for instance, historical sexual abuse". This is clearly a reference to the arguably analogous proposition that in sentencing for offences involving historical sexual abuse it is proper for a sentencing court to take into account the sentencing practice prevailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time (R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J). [65] Neither of the parties referred to any previous decisions of this Court that have addressed whether a sentencing court, in dealing with an adult offender for an offence committed while they were a juvenile, can have regard to the sentencing regime available for juveniles had they been prosecuted earlier. However, this issue has been addressed by this Court. In TC v R [2016] NSWCCA 3, this Court found error in circumstances where a fifty-five-year-old offender was sentenced for an offence he committed when he was seventeen years old. The judge at first instance was found to have erred in failing to specifically address the statutory regime for the sentencing of children prevailing at the time the offence was committed (at [42] to [48] per Gleeson JA with whom Rothman and Bellew JJ agreed, at [88] to [89]). Similarly, in SHR v R [2014] NSWCCA 94, Fullerton J accepted that an offender who was thirty nine years old but had committed serious sexual assaults when he was 16 years of age had the capacity to "ask what might have happened had he been arrested and dealt with expeditiously after the offending" (at [50]; Basten JA and Davies J agreeing). However, it was of no assistance to the offender in that case as his offences were "serious children's indictable offences" that had to be dealt with according to law and not in accordance with the Children (Criminal Proceedings) Act (at [50] per Fullerton J). [66] It follows that so much of Ground 4 as makes complaint in relation to the sentencing judge's approach to the relevance of the Children (Criminal Proceedings) Act to the sentencing of AA for the first two offences, must be rejected. His Honour was entitled to adopt the approach that he did in relation to those two offences. [67] However, his Honour erred in his approach to the third offence in this respect. Given that it was, and is, a "serious children's indictable offence" it had to be dealt with according to law and that could not have included the imposition of a control order."
3. My researches have not been able to find any authority where the Court of Criminal Appeal has determined this issue relating to offending committed by juveniles but dealt with when they are much older following the insertion of s 25AA into the Crimes (Sentencing Procedure) Act 1999.
4. Section 3 of the Children (Criminal Proceedings) Act defines as a serious children's indictable offence as: (a) homicide, (b) an offence punishable by imprisonment for life or for 25 years, (c) an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989), (c1) an offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years, (d) the offence of attempting to commit an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989), or (e) an indictable offence prescribed by the regulations as a serious children's indictable offence for the purposes of this Act.
5. Therefore count 1 (and indeed the Form 1 matter) is not a "serious children's indictable offence". It follows that the offending would have been amenable to be dealt with to finality by the Children's Court had it been reported and had the offender been charged before he turned 21. Consistent with the decision in R v AA, I will consider this is a matter in mitigation in respect of counts 1 and the matter on Form 1, but it cannot be a matter in mitigation in respect of count 2. In respect of count 1 and the Form 1 matter it is my opinion that the offender is entitled to substantial mitigation because of this issue. However as the offender was aged 26 at the time of the commission of the offence to which count 2 relates, youth is not a relevant factor to be considered in the instinctive synthesis approach to sentencing in respect of count 2.
6. If the offending had been reported earlier and had the offender been dealt with pursuant to Division 4 Part 3 of the Children (Criminal Proceedings) Act even taking into account the matter on the Form 1 document it would not have been inevitable that a sentence of full time custody, meaning a full-time Control Order pursuant to s 33(1)(g), would necessarily have been imposed. This is particularly so in light of the issue of intellectual functioning. I am very much aware of the limitations on statistics, particularly where the sample is small (see for e.g. Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J), but I note from the JIRS statistics kept in respect of matters dealt with in the Children's Court that out of a sample of 124 only 7.3% - or nine cases - received a full time (as opposed to suspended) Control Order in respect of offences contrary to s. 61M(2) of the Crimes Act.
7. In regard to the general principles in sentencing juvenile offenders I note and have regard s 6 of the Children (Criminal Proceedings) Act, and further the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] inclusive and BP v R [2010] NSWCCA 159.

Criminal History

1. The offender has nothing recorded against him as a juvenile. However he has a number of traffic matters including Drive Vehicle with Illicit Drug in blood or oral sample and a special range drink driving offence. In 2018 he was convicted and sentenced to imprisonment for Use Carriage Service to Threaten to Kill.
2. In respect of count 1 the offender is entitled to be dealt with on the basis he was of prior good character. However, given the offending to which count 1 relates - as Mr Keller correctly concedes in his outline of submissions MFI 1 -the offender is not entitled to any particular leniency in respect of count 2.

Sentence Assessment Report (SAR) and Structured Case Note

1. The court is assisted by a Sentencing Assessment Report (SAR) to which is annexed a document titled, "Structured Case Note for Pre-Sentence Report".
2. The SAR sets out that the offender's family is aware of the matters but remain supportive of him and have visited him in custody. The offender has now accepted his behaviour and it would seem has some insight into the long term effects of the offending on the victims. However, at p 3 the author of the report recommends that a professional psychologist assess the extent or lack of insight.
3. The offender attended a residential rehabilitation programme in 2016 but soon returned to using alcohol and illicit substances on release. He is currently receiving treatment for symptoms of depression and anxiety. The offender is assessed as being at a medium/high risk of reoffending.
4. The author recommends that in the event of any supervised order being made, conditions relating to abstinence from alcohol and other substances and participating in mental health intervention be included.
5. The Case Note document is also helpful. At p 2 the author sets out that the offender's family has a history of illicit substance abuse, that his mother administered amphetamines to him when he was younger, that his mother was herself an addict. He was diagnosed with ADHD when he was 11 and was prescribed dexamphetamines and he commenced using cannabis when 14 years of age. He was sexually abused by an uncle when younger and participated in group sexual activity with his uncle and his uncle's wife. The report writer notes, "Mr [W[ experienced a dysfunctional upbringing leading to the use of a reliance on ilicit substances".
6. There was no challenge to any of this in the course of the offender's evidence and accordingly I proceed on the basis that the information is accurate. This material is sufficient to enliven to some extent the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37, reducing to some extent the moral culpability of the offender.
7. The Case Note also notes that the offender has been admitted to mental health units on two occasions and is currently prescribed a low dose antipsychotic medication. He has received six sessions of psychological contact, three of which related to issues of self-harm.
8. At p 3 of the Case Note is a notation to the effect that the offender has been assessed as functioning within the range of intellectual disability. The matter was listed for the sentence hearing earlier in 2019 however when I read that part of the Case Note I indicated rather strongly to the parties that I was very reluctant to deal with the matter until more information about that issue was available. The report of Mr Sheppard to which I earlier referred is now to hand.
9. The author of the Case Note assesses that the offender is in the average risk category of re-offending relative to other male sex offenders.

Report of Mr Sheppard - exhibit 1 on sentence

1. I referred to this report when dealing with the objective seriousness of the offending. The findings as to the IQ of the offender were set out earlier in these remarks and I will not repeat them. I note that the IQ of the offender places him in the bottom 2% of the population, i.e. 98% of people of the same age tested obtained a higher score than the offender.
2. Mr Sheppard notes at p 3 of his report that it would appear that the offender has had a significant intellectual disability since birth and this would have been present in his offending as a 15 year old and the more recent offending as an adult.
3. In the Curriculum Vitae attached to the report Mr Sheppard sets out that he has had experience as a Senior Psychologist at Junee Correctional Centre, Mannus Correctional Centre and NSW Community Corrections. At p 3 of the report Mr Sheppard opines that from his experience it is highly unlikely that the offender will be accepted for entry into any sex offender programme as his level of intellectual ability would detract from his ability to complete the more frequently available programmes.
4. Mr Sheppard also opines that it would be desirable for the offender to engage with an appropriately qualified psychologist in order to develop treatment plans to minimise risk of further offending.
5. In Muldrock v The Queen [2011] HCA 39 the court said at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
6. Clearly the level of intellectual functioning and the effect on the moral culpability of the offender is a significant factor in determining the appropriate sentence in this matter. The sentence that is ultimately imposed would have been longer but for the issue of the intellectual functioning of the offender.

Other subjective material

1. The offender gave evidence at the sentence hearing. He is now working as a sweeper in the pod in which he is housed at the Junee Correctional Centre. He has been teased by other inmates, being called a "sex pest", and had other abuse "hurled" at him. He has been assaulted in gaol but has not made a complaint about it because he feels safe in the pod in which he is housed and does not want any further trouble from the other inmates.
2. Before going into custody the offender worked in the abattoir in Cowra as a slaughterman for about four years. He has also worked in the Young abattoir. He has done other manual type work. Exhibit 2 on sentence is a letter from Cowra Meat Processors confirming that the offender had been employed there. A little later in his evidence he said that upon his eventual release he will live with his father in Ingleburn and intends to obtain employment concreting or labouring.
3. When asked about literacy skills the offender seemed a little embarrassed and non-committal in his answers. He conceded he has difficulty with numeracy. However, he was able to obtain his learner's licence and his provisional licence on the first attempt. His father assists him in filling out forms for housing.
4. When asked about the offending he said that he was really sorry for what he had done, that he accepted that his behaviour would have a big effect on the little girls and that he can't begin to understand what the effects on the victims might be. These answers indicated that the offender has some insight into his offending and the effects on the victim. The answers also entitle the offender to a finding on balance that he is remorseful. As I observed in the sentence hearing it is refreshing to hear expressions of remorse in the words of the offender rather than the more usual, "I am very remorseful" which all too often gives the appearance of being learnt by rote.
5. The offender also said that in future he will never babysit for anyone. Further that he understands he will be placed on the Sex Offender's Register and he will comply with his obligations. Under cross-examination the offender said that he was drug affected ("ice" or methamphetamine) but he is now abstinent.
6. There are some positive signs however any assessment as to the long term prospects of rehabilitation at this stage must be guarded. I note that Mr Keller for the offender accepted as much at the sentence hearing. Much will depend on the manner in which the offender engages. I am simply unable at this point to make a finding on balance that there are good prospects of rehabilitation.
7. Noting the offending to which the counts on the indictment relate and the Form 1 matter and the time between counts 1 and 2 on the indictment, together with the assessment by Community Corrections in the SAR that the offender is at a medium/high risk of reoffending, I am unable to make a finding on balance that the offender is unlikely to re-offend. Counsel for the offender did not argue otherwise.
8. There must be a substantial finding of special circumstances. Although the offender was sentenced in the Local Court that sentence commenced from the date on which he went into custody following his arrest for these matters. For all practical purposes this is his first time in custody. He is in his late 20's. Noting the issue of intellectual disability and the nature of the offending there is a particular need for intensive and extensive supervision to ensure that the offender remains offence free and free from illicit substances. There is also the issue of effective reintegration into the community, part of which is ensuring that the offender receives appropriate treatment for his mental health issues.
9. On the issue of the sentence imposed in the Local Court for Use Carriage Service to Threat to Kill a non-parole period of 4 months was imposed. In the interests of totality I propose to date the sentence to be imposed in this matter from 24 May 2018. I indicated as much at the sentence hearing. I did not understand either party to dissent from that indication.

General Remarks

1. Mr Keller, referring to my decision in R v RP, submitted that it would be appropriate to deal with the offender by way of Community Release Order in respect of count 1 on the indictment. The Crown correctly submitted that in respect of count 1, given the age of the offender at the time and the issue of the intellectual disability, it would not have been inevitable that had the matter been dealt with by the Children's Court at the time of the offending that the offender would have been sentenced to a full time Control Order. I agree with the Crown in this respect and in respect of count 1 in all of the circumstances I am unable to conclude that the matter crosses the threshold of section 5 of the Crimes (Sentencing Procedure) Act, 1999.
2. However, I am of the view that a Community Corrections Order is a far more appropriate manner of dealing with count 1 than a Community Release Order. One of the principal reasons for this is that a Community Corrections Order can be for three years whereas a Community Release Order can only be for two years. There is also the nature of the offending to be taken into account.
3. Mr Keller argued for a finding of special circumstances. The Crown did not oppose a finding of special circumstances. For the reasons already enunciated earlier in these reasons there must be a substantial finding of special circumstances. Mr Keller submitted that it may be possible for Mr Sheppard to consult with the offender in gaol. If that is possible it would certainly be to the offender's and the community's benefit.
4. Counsel put that with a finding of special circumstances and given the issue of the intellectual functioning of the offender, the sentence to be imposed would be such that although the offender would not be immediately released he would have not have a great deal further to serve. In all of the circumstances I am of the opinion that the remainder of the non-parole period is to be measured in months rather than years.
5. The Crown made brief oral submissions, some of which have already been dealt with, such as the value of the pleas and the appropriate sentence in respect of count 1. The Crown also indicated that no particular issue was taken with the submissions of counsel for the offender. In fairness to the Crown, I did not specifically ask whether that related to the submission dealt with in the paragraph immediately above.
6. I will need to give proper effect to 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.
7. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. For reasons already given earlier in these remarks I am of the opinion that even when the Form 1 matter is factored into the sentence, the offending to which count 1 relates does not cross the threshold provided by s 5 of the Act.
8. The situation so far as count 2 is entirely different. There must be a sentence of full time imprisonment imposed in respect of that matter. I note that no contrary submission was made by counsel for the offender.

Orders

1. In respect of counts 1 and 2 on the indictment to which the offender pleaded guilty, he is convicted.
2. In respect of count 1 and taking into account the matter on the Form 1 document the offender is released on a Community Corrections Order for a period of 3 years. Such order is conditioned that the offender: 1. Commit no further offences; and 2. He appear for sentence in respect of any breach within that period; and 3. Notify the Registrar of this court of any change of address; and 4. For the period of the Order or such shorter period as might be deemed appropriate he submit to the supervision of the Department of Community Corrections; and 5. For the period of the Order the offender must abstain from alcohol; and 6. The offender must undertake and maintain Alcohol and Other Drugs programmes and counselling if directed to do so; and 7. The offender must if directed by the relevant Officer of the Department of Community Services to participate in mental health intervention; and 8. The offender must not contact, communicate with, watch, stalk, harass or intimidate either of the victims.
3. In respect of count 2 the offender is sentenced to a non-parole period of 1 year 9 months to date from 24 May 2018 and which will expire on 23 February 2020. Thereafter there will be a balance of term on parole of 1 year 9 months to commence on 24 February 2020 and which will expire on 23 November 2021.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The starting point for the sentence was 4.5 years from which was deducted 20% for the utilitarian value of the plea resulting in a total sentence of 3.5 years after some minor mathematical rounding down in favour of the offender.
6. The non-parole period is 50% of the total sentence which indicates a very substantial finding of special circumstances, the reasons for which have been given earlier in these remarks.

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