R v RB

District Court of NSW|2020-06-16|Before: Ms J

REMARKS ON SENTENCE

The offender appeared at the Wagga Wagga Local Court on 1 April 2020 and pleaded guilty to one charge, namely: "That (he) (on or about) 27 February 2010 at [a town] in the State of New South Wales did have sexual intercourse with MC, who was at that time under the age of ten years, (namely) of the age of 5 years".
The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 4 June 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. There is an additional matter which in the submission of counsel for the offender entitles the offender to a further numerical discount. I will deal with that later in these remarks.
I note that the maximum penalty for the offence at the time of the offending was 25 years imprisonment and that Parliament specified a standard non-parole period of 15 years imprisonment in respect of the offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principle guideposts are the maximum penalty and the standard non-parole period.
However, it seems to me that the standard non-parole period does not apply in this matter. Section 25AA(2) of the Crimes (Sentencing Procedure) Act, 1999 provides: (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.
It is uncontroversial that a standard non-parole period does not apply to juveniles even if they are being dealt with according to law. The offender was a juvenile at the time of the offending and therefore if the matter had been reported promptly and he was dealt with according to law close to the time of the offending the standard non-parole period would not have any application.

Facts

The facts are before the Court by way of a set of agreed facts. One of the many complicating factors in this matter is that the offender was aged 14 years and one week at the time of the offending. He is now 24 years of age. The matter has only been recently reported.
The complainant was five years of age at the time of the offending. The complainant and her brother attended a day care centre conducted by the offender's mother at her home. The offender lived with his mother at that address.
On either Saturday 27th February or Sunday 28th February 2010 the complainant attended the day care centre and was dropped off there by her mother. While the complainant was at the day care centre the offender asked the complainant to go with him to his bedroom. Once in the bedroom the offender closed the door and sat next to the complainant on a lounge in his room, placing an arm around her shoulders.
The offender then pulled down the complainant's pants and pushed his finger on top of the complainant's underwear through the crotch area such that it went slightly into the complainant's vagina for a short period of time. The offender stopped when the complainant told the offender that it was hurting and began to cry.
The offender's mother then knocked on the bedroom door and told the offender and the complainant to come out for lunch.
The facts go on to recite that, "When the complainant was collected from day care that evening her mother noticed blood on the inside crotch area of the complainant's underwear". She made enquiries with the complainant as to whether she was hurt or someone had touched her and she replied no. The complainant was examined at the local medical centre on 3 March 2010 and the treating doctor noted that her vulva was red and had mild inflammation.
On 11 August 2019 the complainant disclosed the conduct to her mother and the matter was reported to the police.
On 13 November 2019 a lawfully recorded conversation between the offender and the complainant took place. The complainant told the offender, "I'm very angry about what you did to me when I was younger, and I was thinking about taking police action and I was thinking I just wanted to let you know". The offender responded "Okay" and shortly after that, 'I am really truly sorry that, do what you need to do and I'll take it". He later indicated that, "The impact that it would have had on you is what hurts me the most", to which the complainant replied, "Yeah should have thought of that" to which the offender responded, "I really should have".
On 15 November 2019 the offender was arrested and charged with the offence and following provision of his legal rights agreed to be electronically interviewed during which he admitted to police that the incident had occurred, apologised, indicated that he felt "horrible" and acknowledged that his conduct had caused the complainant harm.

Assessment

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)."
Generally, the younger the victim the more serious the offence will be regarded - see for e.g. R v AJP 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]. In the matter presently under consideration the complainant was 5 years of age at the time of offending.
In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]: "As was observed in R v Gavel : '[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 offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].'"
His Honour went on to say at [45]: " … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: '[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.'"
In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J's statement in Saddler, said: "[57] Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse."
On the issue of the sexual assaults being of limited duration there is the decision of R v AA [2017] NSWCCA 84, which was an unsuccessful Crown appeal. Beech-Jones J at [56] said: "…While the short duration of a sexual assault "would not ordinarily be considered as a factor which reduces the objective seriousness" of such an offence (R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])".
Fullerton J in her judgment in R v PGM 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 Crown appropriately refers (MFI 1 on sentence) to the age disparity between the offender and the victim. The victim was aged five and the offender was 14 at the time. The Crown submits that the matter is below mid-range but the matter is not at the bottom of the range of seriousness. Although the age difference is significant it is also relevant that the offender was 14 years of age at the time.
At the sentence hearing I gave an indication of a preliminary opinion that the matter was substantially below mid-range but not at the bottom of the range of seriousness. Towards the end of the sentence hearing I inquired of Mr Heazlewood whether he took issue with that assessment and he responded in the negative.
The intercourse was digital penetration. The extent of the penetration is described in the facts as "slightly". The penetration was digital of the victim's vagina for a short period of time. The penetration ceased when the victim said that it hurt and began crying. Any threats or admonition not to tell would make the matter more serious but neither of those matters is present in this matter.
In all of the circumstances the matter is substantially below mid-range but given the age of the victim and the disparity in ages between the offender and the victim the matter is not at the bottom of the range of seriousness. This assessment is in the context of matters of this type (that is offences of sexual intercourse with a child under 10 years of age) that come before the Court. Be that as it may the maximum penalty of life imprisonment is indication enough of the very serious nature of the offending.

Offender 14 years of age at the time of offending

Section 3 of the Children (Criminal Proceedings) Act, 1987 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.
The offence for which the offender appears for sentence is a "Serious Children's Indictable Offence" within the meaning of s 3(b) of the Children (Criminal Proceedings) Act and therefore would have not been amenable to disposition in the Children's Court even if the matter had promptly been reported to the authorities. However, had the matter been dealt with while the offender was still a juvenile the court would have been required to apply the provisions of s 6 of the Children (Criminal Proceedings) Act in passing sentence. If a custodial sentence had been imposed it would have been served in a juvenile justice institution rather than an adult correctional centre. Further, had the matter been dealt with while the offender was a juvenile, the sentencing court would have been obliged to take into account decisions such as KT v R [2008] NSWCCA 51 at [21]-[26] per McClellan CJ at CL and BP v R [2010] NSWCCA 159 per Hodgson JA at [84]-[85] and per Johnson J at [98]-[103].
Moreover, the other significant benefit the offender would have received had the matter been dealt with while he was still a juvenile is that there would be no doubt that the standard non parole period would not apply.
I have mentioned a number of times already that the offender was aged 14 years and one week at the time. Had the offending occurred a week or so before it did the offender potentially would have had the issue of doli incapax available to him. Despite the offender being 14 years of age at the time of the offending the Crown maintains that only a sentence of full time custody is appropriate.
Since submissions were taken, the Court of Criminal Appeal has handed down the decision in LS v R [2020] NSWCCA 120. I had my Associate refer the parties to this decision. Rothman J (Simpson AJA & Bellew J agreeing, both with separate additional comments) said at [58]: "The proposition, that the Applicant was to have been sentenced in accordance with law, does not diminish the relevance and significance of the Applicant's youth. Moreover, the fact that the Applicant is to be dealt with according to law does not displace the general provisions in the Children (Criminal Proceedings) Act concerning the treatment of children under the criminal law: see s 6 of the Act and Paul Campbell v R [2018] NSWCCA 87, [25]-[29]."
In that decision Bellew J in his additional comments at [96] said: "As his Honour has pointed out, the applicant was 16 years of age at the time of the offending. The fact of the applicant's age directly engaged the principles applicable to the sentencing of young offenders. A number of those principles were set out by McClellan CJ at CL in KT v R including the following: 1. considerations of general deterrence and principles of retribution are, in most cases of sentencing young offenders, 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; 2. 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; 3. 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; 4. 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 and there remains a significant public interest in deterring antisocial conduct; 5. 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 a crime of considerable gravity; 6. in determining whether a young offender has engaged in adult behaviour, the Court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. 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; and 7. the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A child offender of almost 18 years of age cannot expect to be treated substantially differently from an offender who is just over 18 years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth."
The decision in LS v R dealt with an offender who was sentenced for the Production of Child Abuse Material and Sexual Intercourse with a Child Under 10. As Rothman J explained at [59] the first of the Child Abuse Material was produced when the offender was 14 and the sexual intercourse (cunnilingus) occurred when the offender was 16.
The representatives were given the opportunity to make any further submissions in writing when my Associate advised them of the decision in LS v R. Mr Heazlewood responded with further written submissions (MFI 3), essentially putting the matters set out by Bellew J in LS v R should be applied to the matter presently under consideration.
Mr Heazlewood goes on to submit on [71]-[72] of the decision in LS v R, namely: "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. [72] 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."
Some of this is applicable in the matter presently under consideration but the appellate in LS v R had autism and this offender does not.
Mr Heazlewood correctly submits that s 25AA of the Crimes (Sentencing Procedure) Act applies in this matter. That is to say that the Court takes into account the maximum penalty applicable at the time of the offending but applies the standards and principles of sentencing that apply at the time of sentencing. The court however is not sentencing a 24 year old male for offending when he was that age but rather the court is sentencing a 24 year old for offending committed when he was 14 and in this case only just 14.
In his written submissions (MFI 2 on sentence), Mr Heazlewood refers the court to the decision of the Court of Criminal Appeal in SW v R [2019] NSWCCA 194. Davies J (Bathurst CJ, Bell P agreeing) said at [34]-[38]: "His Honour rejected any suggestion that s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) was intended to displace rules that applied to the principle of delay. Nor, his Honour said, did s 25AA prohibit him from taking into account that the offences were committed by a child on another child. His Honour noted further that, had the applicant been dealt with as a child, a different sentencing regime would have applied to him; a regime with greater focus on rehabilitation than the retributive regime that applies to an adult. [35] His Honour said that the applicant's demonstrated progress to rehabilitation and the fact that there has been no offending of a similar nature were important matters that operated to the applicant's advantage and were matters that his Honour had to take into account. [36] His Honour said (at ROS 8): 'I also have to, so far as I am able, apply principles that relate to the sentencing of young and immature offenders. …The fact that the offences occurred as a child does not minimise their objective seriousness, but I recognise that there is a vast difference between a young immature offender committing offences when they are not neurologically able to think as an adult, and when one comes to sentence a mature adult who offends against a child. The child's criminal actions, even sexual actions, are generally not regarded as being as morally reprehensible as if the offences had been committed by an adult.' [37] Finally, his Honour said (at ROS 13): 'There are a number of important factors in this case. The delay, the fact that the offender was himself a child at the time, requires a sentence which by comparison with that which would have been imposed on an adult, might be considered lenient.' [38] Despite the allowances that his Honour made for the youth of the applicant at the time of the offending, and the delay, there were a number of significant matters that resulted in his Honour forming the view that there had to be a period of full-time imprisonment."
I note that in SW v R the matter involved multiple offending. However it appears to me, as Mr Heazlewood submits, that it is tolerably plain from the decision that the age of the offender at the time of the offending remains a relevant consideration. I agree with the submission (para 27 of MFI 2 on sentence) that s 25AA of the Crimes (Sentencing Procedure) Act does not displace rules that apply to the principle of delay or prohibit the court from taking into account that the offence was committed by a child on another child.
In his later submissions (MFI 3) Mr Heazlewood directs my attention to the decision of Corliss v R [2020] NSWCCA 65. Johnson J in that decision said at [85]-[87]: "The text of s 25AA, confirmed by relevant extrinsic material, makes clear the intention of the legislature to abolish forthwith for the purpose of all sentencing decisions for child sexual offences falling within s 25AA(5), the general law principle with respect to past sentencing patterns and practices for historical child sexual offences. The intention of the legislature having been made clear in this way, it is the duty of sentencing courts (including the Court of Criminal Appeal) to give effect to that legislative intention. [86] To the extent that considerations of fairness to offenders who have committed historical child sexual offences arise for consideration, it was the clear legislative intention to require attention to be given to contemporary sentencing patterns and practices, with s.19 confirming that the maximum penalty for the relevant offence is that which applied at the time of the commission of the offence: s 25AA(4). In addition, s 25AA(2) makes clear that any relevant standard non-parole period is that which applied at the time of the offence and not at the time of sentencing. [87] These features constitute the express statutory qualifications to the otherwise absolute operation of the provision which confines the attention of all sentencing courts to current sentencing patterns and practices for child sexual offences.
Lonergan J at [170] expressly agreed with the remarks of Johnson J in respect of s 25AA of the Crimes (Sentencing Procedure) Act at [65]-[100] of the decision. Brereton JA dissented (see [21]).
The Crown is silent on this issue of s 25AA of the Crimes (Sentencing Procedure) Act in the brief outline of written submissions (MFI 1 sentence). In oral submissions the Crown, as I understood the submissions to be, maintained the position that only a sentence of full time custody would be appropriate and the issue of the age of the offender at the time of the offending could be attended to by a finding of special circumstances.
Given the offender's age at the time of the offending but also his age at the time of sentence, I note in addition to KT v R and BP v R the decisions of R v Hearne (2002) 124 A Crim R 451 at [27], Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296 at [41]-[49] per RA Hulme J and Thammavongsa v R [2015] NSWCCA 107 at [84]-[90] per Bellew J (Simpson J - as her Honour then was - generally agreeing but dissenting as to the ultimate disposition of the appeal, Hulme J agreeing). Clearly the age of the offender at the time of the offending and his immaturity are all factors taken into account in the instinctive synthesis approach to determining the appropriate sentence. With unfeigned respect I endorse what my colleague Haesler SC DCJ said in first instance in SW v R in that: "…but I recognise that there is a vast difference between a young immature offender committing offences when they are not neurologically able to think as an adult, and when one comes to sentence a mature adult who offends against a child."

Victim impact statement

As is often the case, the victim impact statement speaks eloquently of the short and long-term effects of this type of offending on young victims. It is very clear that the offending has had and continues to have an effect on the victim.
However, without deprecating the undoubted effects of the offending on the victim, noting the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, I could not take the contents of that statement into account in finding some factor of statutory aggravation. However, the effects of the offending on the victim are taken into account in the instinctive synthesis approach to the determination of the appropriate sentence pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act.
In dealing with the victim impact statement I also observe that the obvious long term effects on the victim speak eloquently of the harmful effects of such offending on young children referred to by Price J in Cattell v R [2019] NSWCCA 297 at [109]ff.

Criminal History

The offender was born on 22 February 1996 and accordingly is now 24 years of age; as already stated he was just 14 at the time of the offending. He has been convicted of Drive Vehicle with Illicit Drug Present in Blood or Oral Fluid and separately for Drive While Suspended. Modest fines were imposed in respect of each matter. He has also been convicted of a common assault in respect of which he was released on a Community Correction Order. There is nothing of a sexual or indecent nature on the offender's record.
However at the date of the offending the offender had nothing recorded against him.

Subjective Case for offender

The offender gave evidence at the sentence hearing. He was not an impressive witness - at least superficially. As I observed in an exchange with counsel for the offender in the taking of submissions at the sentence hearing the offender appeared as a very immature 24 year old. He had significant difficulty expressing himself. I did not glean that that was because he was being evasive; but rather it was because of his immaturity and the position in which he was at the time. He was very anxious and nervous.
The offender said that he told Mr John Sheppard, the psychologist who prepared exhibit 1 on sentence, the truth. Initially he said that he was six to eight when he began sniffing petrol. This was later changed to about 10 years of age and in the psychological report (exhibit 1) he was in his teenage years when he began sniffing petrol.
There was some cross-examination of the offender on this point during which he denied he was simply trying to invoke the court's sympathy. I was left with the impression that certainly the offender did sniff petrol in his formative years but he has no clear recollection of when that was.
Clearly the offender had significant issues with this mother during his formative years. He had no father figure.
The issues with his mother continued into adulthood. The offender explained the circumstances of the conviction for Common Assault on his criminal history. There was an incident involving his mother and her partner during which the offender grabbed his mother's then partner by the wrists and took that persons mobile phone.
The evidence continued that the offender lives with his sister and travels to Wagga Wagga on a daily basis for work as a cleaner.
So far as the offending is concerned the offender said that at the time of the offending the seriousness of the offending did not occur to him but he "began to work it out a couple of years later". When confronted with the allegation he admitted his conduct.
The facts set out that he told the victim in the recorded call that he was really truly sorry. He confirmed that in evidence. The victim was present in court. He said that he was aware that his offending would have had an impact on her. A little later he went on to say words to the effect that what hurts most is that it will always have some effect on the victim.
I have already commented that the offender was not an impressive witness. The offender indicated more than once that he was having difficulty expressing himself. He is most certainly not articulate. I maintain the observation that I made at the sentence hearing that it was more the presentation of the offender in the witness box that assisted in the finding of remorse.
The Crown put to the offender that he was merely tailoring his answers to invoke the sympathy of the court. Without being pejorative I very much gained the impression that the offender simply does not have the guile to do that. The Crown also explored the statement within the psychological report (exhibit 1) that the offender suffered a nervous breakdown. He gave details of having suicidal ideation and of breaking down to one of the ladies at the clinic at his workplace at the time.
A report from John Sheppard, Psychologist, was tendered and became exhibit 1 on sentence. The report recounts that the offender grew up some 40 kms from Wagga Wagga and that his father was involved in his life only until he was six years of age. He has occasional contact with the mother's parents. His mother started the day care business when he was eight years of age.
Mr Sheppard goes on to note that the offender had a "fragile relationship" with his mother growing up. He described his mother as an alcoholic. The offender's mother also abused prescription medications and was addicted to codeine. He experienced a degree of physical and emotional abuse from his mother. The offender's sister supported what the offender told Mr Sheppard. The offender dealt with this by isolating himself in his room attempting to distance himself from the situation.
No real detail is given as to the severity or frequency or even the nature of the physical and emotional abuse. I inquired of Mr Heazlewood whether he was submitting that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 were enlivened. He answered that he did not mention that decision in his submissions. Reasonable minds may differ but despite counsel's approach I am prepared to find that those principles are enlivened but to a very limited extent. The moral culpability of the offender is reduced to that very limited extent.
The report continues, noting that the offender completed Year 10 but left school in Year 11. He commenced working with a local bakery hoping that he might obtain an apprenticeship as a baker. However, the family moved to Canberra so that was not possible. The offender has completed a number of employment related courses. He has had other unskilled employment including at the local meatworks in Wagga Wagga. He told Mr Sheppard he suffered a "nervous breakdown" and was unemployed for two years. No further exploration was apparently undertaken of what the offender described as a nervous breakdown. I have already referred to this issue being pursued by the Crown in the cross-examination of the offender. The offender has been constantly employed as a cleaner at Charles Sturt University for which he required a Working with Children check.
The offender began sniffing petrol in his early teens and also experimented with cannabis. From the ages of 16 to 18 he regularly consumed alcohol with his mother but the offender told Mr Sheppard that excessive alcohol consumption is no longer an issue.
The report notes that the offender "severely regretted his actions at the time and pleaded guilty at the first opportunity" and that "it was not a planned or premeditated action but at the time he felt lost in his life and curious about sexual matters". Given this, together with the offender's evidence but particularly his presentation at the sentence hearing and with what the offender said to the victim during the recorded conversation and the plea of guilty, I am prepared to find on balance that the offender is remorseful.
Mr Sheppard notes that the offender appears to have made a significant attempt to stabilise his life and move forward. He also notes that risk assessment tools are available to assess the risk of sexual reoffending for adults however these are not directly applicable to a young person who committed a sex offence when he was 14 years of age. Further Mr Sheppard opines that there is no evidence of indication that the offender maintains a deviant sexual interest in children. He goes on to opine that there is no evidence of any current deviant sexual urges, paraphilias, lack of empathy, impulsivity, pro-sexual assault attitudes, unmanaged anger, low self-esteem or poor self-management skills. Towards the end of the penultimate page of the report Mr Sheppard says: "Mr [RB]'s offence appears to have been largely opportunistic and unplanned and possibly incorporated both elements of sexual curiosity and gratification. It sems to have occurred at a time when he had no supportive relationship with any significant adult in his life and was sniffing petrol on a regular basis. He was struggling to find himself at any important stage of his adolescent development".
It is Mr Sheppard's opinion that the offender "represents a low risk of further sexual offending and does not need to attend a formal sex offender treatment programme.
Noting that the offending occurred ten years ago and there has been no further sexual offending, taken with the opinion of Mr Sheppard, I am prepared to find on the balance of probabilities that the offender is unlikely to re-offend. Noting those matters plus the employment history I am also satisfied on balance that the offender has good prospects of rehabilitation.

Delay

Mr Heazlewood on behalf of the offender raises in his written submissions (MFI 2 on sentence) the issue of delay and raises the decision of the Court of Criminal Appeal in R v Todd (1982) 2 NSWLR 517 at 519. Latham J (Hidden and Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. At [45] her Honour extracted from the judgment of Buss JA in the Western Australian decision of Scook v R (2008) 185 A Crim R 164.
Latham J went on to say at [49]: "There is nothing in this Court's consideration of the issue of delay in Fahda, Khoury, Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook, with the exception of the last factor (a mitigated penalty as a mark of disapproval of tardy prosecutorial conduct) in Buss JA's judgment. I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been 'dilatory or neglectful'. Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it."
This matter was one that had to always be dealt with according to law. However, as I commented earlier, had the matter been quickly reported the offender would have had the benefit of being dealt with in circumstances where all of the relevant principles relating to dealing with juvenile offenders being applied. Those principles remain of some relevance when considering the appropriate sentence in this matter.
Neither party referred the court to the decision of the Court of Criminal Appeal in the Crown Appeal of R v Cattell Price J (Hoeben CJ at CL, Campbell J agreeing) said at [134]-[135]: "In many cases where the issue of delay has been considered, Todd and Mill have been distinguished as the delay in Todd and Mill was due to the operation of the criminal justice system. [135] In historical sexual assault cases, a child sexual offender does not necessarily benefit from an extensive delay in the revelation of offences. In Hornhardt v R, [32] the offender pleaded guilty in 2015 to seven offences of child sexual assault that occurred between 1965 and 1978 but were reported to police in 2014, Hoeben CJ at CL (with whom Price and Adamson JJ agreed) in answer to the submission that the sentencing judge did not adequately take into account the delay in prosecution said at [53]-[55]: 'This is a somewhat bold submission. It is notorious that offending of this kind by its very nature causes victims to be reluctant to come forward and make a complaint. This is particularly so where close family relationships are involved, such as we have here. It is a significant distortion of the reality of the situation to argue that in some way the applicant has been disadvantaged because his criminality has remained undetected for almost 50 years when that lack of detection is directly related to the nature of the offending.'"
The factual situation in Cattell is very much different to the matter in which I am passing sentence. In Cattell the offending occurred when the offender was an adult in circumstances where he used his position of trust as a priest to access his victims. The delay in the matter I am dealing with has operated in my opinion quite substantially to the detriment of the offender, in particular noting that had the matter been reported promptly all the principles relating to the sentencing of juvenile offenders would be been applied. Further the offending in the matter with which I am dealing was one isolated event as opposed to multiple offending over a period of time.
However, the delay has also enabled the offender to demonstrate rehabilitation and that he is unlikely to reoffend. As Mr Heazlewood puts at paragraph 29 of his written submissions, the offender's development and maturity did not involve repeated offending.

Assistance

Mr Heazlewood rather boldly (a euphemism) submits that the offender is entitled to a discount of 50% for past assistance, making 75% combined discount for assistance and the plea of guilty. These figures were submitted by counsel with some apparent reluctance and only then after he was pressed a number of times by me as to what he submitted the assistance was worth. The Crown opposes any discount for assistance. I will deal with the Crown's submission after extracting the material on which the offender's counsel relies.
Essentially as I understood counsel's submission on this issue, it is put on behalf of the offender that the discount should be extended to him because of his admission of penetration. Part of the material annexed to counsel's submissions (MFI 1 on sentence) is one page of the offender's record of interview with police and the entirety of the record of interview between the JIRT officer and the victim. The offender clearly does admit to the digital penetration. At paragraph 43 of his submissions (MFI 2 on sentence) Mr Heazlewood sets out the parts of the victim's interview upon which he relies. They will need to be extracted within these reasons. Q 33: OK all right,..[M]…, do you know why you've come to talk to me today? A; Yeah Q 34: OK, so, why is that? A: Um, when I was 6 my mum took me to day care on a Sunday. I'm pretty sure. And while I was in their care, their oldest son, he um took me to his room and he locked his door, and he made me, he pulled my pants down and he made me sit on the couch with him. Q 35: OK, so pull pants down, sat on the couch with him, yes. A: And he told me to be quiet and had his arm over me and he tried to push his finger in through the underwear. … Q 42: OK, and you said he tried to push his finger in through the underwear, what part of the underwear? A: The, the part over the--- Q 43: You can say it, it's OK, no need to be--- A: ---near vagina. Q 44: Sorry, the? A: Vagina. Q 45: Oh, the part over the vagina. Yeah, it's OK, you don't need to be embarrassed with using any of those words, or, you know, I'm very used to that, so that's OK. So, so, he tried to push his finger in through your underwear, the part of the underwear that sits over the vagina. A: Yep Q 46: OK, how far did the finger go? A: I don't remember that part, I just remember that it hurt. … Q 58: What happened next? A: And he sat me on his lounge and put his arm over me. Q 59: Yes? A: And he tried (to) put his finger in through the underwear. Q 60: Yes A: Um, it was hurting so, I started crying and he kept tellin' me to be quiet. … Q 82: So, could you tell me a little bit about when you first started going to that day care? A: Ah, my mum would take us there about 6.00 in the morning. Q 83: Yeah A: Maybe earlier, and [B] would take care of us all day. And if it was on a school day, she'd get us on the bus and we'd go to school, and she'd feed us, and yeah. Q 84: So, how many days a week did you go there? A: Mum had a very weird work schedule, so, we went depending on what day she worked. So, sometimes it could be 4 days, 1 day. Q 85: OK, where did your mum work? A: [Redacted] Q 86: OK, all right. So it was not regular days, so, some days 4 days a week, some days? A: Yeah … Q 91: Why, who do you, re, why do you say that, what makes you remember that you were 6 and it happened on a Sunday, the day [RB] did this? A: Because I was not going to school that day. Q 92: Yep. A: And my mum took me on the next free day she had after she's found blood in my underwear. Q 93: OK, so, sh, so, say that again. So, your mum found blood in your underwear, and what did she do after that? A: Took me to the doctors the next free day she had, which is on the Wednesday. … Q 108: Yeah, and what makes you think the blood in your underpants was connected to what happened that Sunday? A: He pushed really hard and it caused a lot of pain. … Q 112: OK, un, now you said…you found the doctor's records A: Uh-huh Q 113: Tell me about that…what have you read or seen from the doctor's records? A: Ah, it said I had an inflamed vulva. … Q 135: OK. Um, so you told me that he came out, um, and asked you to come in with him, do you know what time of the day that was? A: It was before lunch. Q 135: Yep A: Maybe about 10, 15 minutes before we had lunch. Q 137: OK, um, and what did you say when he asked you to go in there? A: I didn't think of, think of it, 'cause my brother went in there occasionally and they'd played games and stuff. … Q 175: So, he was holding you onto the couch? A; Uh-huh Q 176: But you were in a sitting up position? A: Yeah Q 177: OK, Um, and then you said he, OK, then he tried to put his finger in through your underwear, the part that covers your vagina? A: Uh-huh … Q 188: And you're saying he used his other hand--- A: Yeah Q 189: ---to push through A: Uh-huh, yep Q 190: OK, so um, do you know what part of his hand he used? A: His finger Q 191: OK A: And he, like, he, like covered the top and tried to push it through. Q 192: OK, so, when you say, cupped the top--- A: Like, he covered the top and tried to go through Q 193: Oh, oh, OK, so , covered the top. A: Yeah Q 194: And then, and you're using, you're showing me this middle finger? A: Uh-huh Q 195: Is that the finger? A: I'm pretty sure it was this one. Q 196: Oh, so, the one from, next one from the thumb? A: I'm not sure, it was one of the two. Q 197: OK, and how far did the finger push through? A: I'm not sure, he might've only just touched, yeah Q 198: OK, um, you said, he pushed really hard and it caused a lot of pain. A: It did Q 199: OK, all right, um, can you describe the pain? A: Ah, it was burning and it was, like, it was, like, a stabbing pain because he kept pushing down while he was trying to go through it. Q 200: OK, pushing down on what? A: The vagina. Q 201: OK, so pushing down on the vagina--- A: Yeah Q 202: ---and then, tr, step [sic], did you say stabbing--- A: Yeah Q 203: ---with the finger? OK, did the finger feel like it actually went in with the underpants over, or? A: A little bit, but not all the way. Q. 204: OK, so, when you say, all the way, what would all the way be? A: It, the whole finger. Q 205: So, it didn't go the whole finger, but you felt like it went--- A: In a little bit, so, maybe that, to like, there. Q 206: OK. A: So, maybe the top bit. Q 207: The top, OK, So you said he was stabbing. A: Uh-huh
Mr Heazlewood on behalf of the offender points to the number of occasions in the parts of the victim's interview extracted above that the words "try", "trying" and tried were used. The submission is made that without the admission of the offender the Crown would have very considerable difficulty proving beyond reasonable doubt that there was actually penetration. The submission continued that if penetration could not be proved beyond reasonable doubt the Crown would be left with an aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900, which is not a "Serious Children's Indictable offence".
The Crown submits that the answers in questions 203 to 205 inclusive as extracted above taken with the medical evidence summarised in the agreed facts that the Crown was always able to prove penetration beyond reasonable doubt. The agreed facts set out that the victim's mother found blood in the victim's underpants, and that the examining doctor "noted that her vulva was red and had mild inflammation". I understood the Crown to also submit that the discount of 25% for the plea of guilty takes into account the admissions made by the offender.
The medical evidence would not in my opinion prove that penetration had occurred. The answers given in answer to questions 203 to 205 inclusive were after the victim had been participating in the interview for some time. On many occasions prior to giving the answers that she did to questions 203 to 205 the victim used the word "tried". On the material with which I have been provided it occurs to me that it was not an entirely forgone conclusion that the Crown could prove penetration beyond reasonable doubt without the admissions from the offender.
The admissions made in the recorded call were made during the currency of the police investigation. The same can be said for the record of interview. It is not the situation as in R v AA [2017] NSWCCA 84 where the offender went to the police before a formal complaint was made to them. The authorities were very well aware of the alleged offending and were investigating that allegation. The issue is whether the offender should be given some nominated numerical discount for assistance in circumstances made it inevitable that he would be found guilty of an offence involving penetration. The argument for the offender, at least as I understand it, is that he ought to be given some discount because of his admission of the more serious conduct making the finding of guilt of that more serious conduct inevitable.
If the offender is to be extended any discount for assistance in this regard it will need to be quantified. In Panetta v R [2016] NSWCCA 85 Adams J (Ward JA as her Honour then was, Bellew J agreeing, both with separate additional comments) said at [33]-[34]: "Here, the primary judge followed what was the preponderant view in this Court (contrary to my own: see Raad v R [2011] NSWCCA 138; Ehrlich at [28]ff; R v Z [2006] NSWCCA 342; 167 A Crim R 436 at [116]ff), that "the weight of authority suggests that any Ellis discount should not be specified" by reference to R v Borkowski [2009] NSWCCA 102 at [32] per Howie J, R v Windle [2012] NSWCCA 222 where Basten JA (with whom Price and SG Campbell JJ agreed on this aspect) referred to Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [15] to suggest that it was not appropriate to give any numerical indication as to the degree of leniency which should be accorded and, lastly, a passage in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [34]. However, this matter requires reconsideration in light of the decision in CMB v Attorney General for New South Wales [2015] HCA 9, which was delivered on 11 March 2015 (four days after the judgment under appeal). Amongst other things, the appeal in CMB involved the question whether an Ellis discount fell within s 23(3). French CJ and Gageler J said - '[41] … [The Ellis discount] now finds statutory expression in the Crimes (Sentencing Procedure) Act, s 22 of which concerns confession of guilt, and s 23 of which encompasses the provision of assistance to law enforcement authorities including by disclosure of the commission of an offence. In each of these circumstances, by operation of ss 22(1) and 23(1) respectively, a sentencing court may impose a lesser penalty than it would otherwise impose …' Kiefel, Bell and Keane JJ (at [71]) pointed to s 23 of the Act as allowing the Court to impose a lesser penalty than otherwise where the offender has "assisted (or undertaken to assist) law enforcement authorities in the prevention, detection, or investigation of the offence (or any other offence)", whilst s 23(3) limits the extent of the reduction. [34] Once it is accepted that the Ellis assistance falls within s 23(1), it necessarily falls within the other sub-sections, in particular s 23(4), imposing on the Court the requirement, in substance, to make explicit the nature and extent of any reduction of the sentence from that which otherwise would have been imposed absent the assistance. The mere fact, as pointed out by the Crown prosecutor, that the Court in CMB did not refer to sub-s 23(4), does not affect this reasoning."
However, I also note what Bellew J said at [71]-[72], namely: "Further, and although voluntary disclosure of offending is to be encouraged, the determination of an appropriate sentence in any case will obviously depend upon the consideration of a range of factors. For that reason I am unable to agree with the observation of Adams J (at [51]) that persons should not be deterred from voluntarily disclosing their offending by the prospect of a custodial sentence which is "too lengthy". In my respectful view, such an observation has the capacity to convey some expectation that voluntary disclosure of offending will, without more, result in the imposition of a sentence within a low range. In my view, consistent with principle, it needs only to be stated that persons who are minded to voluntarily disclose their offending can proceed in the knowledge that taking that course will entitle them to an element of leniency on sentence: Ellis at 604 per Street CJ. The degree of leniency will necessarily depend upon a number of factors. In the present case, the appellant's voluntary disclosure was made in circumstances where he was not a suspect in the investigation. The agreed facts make it clear that in the absence of the appellant's admissions, there was no prospect of the deceased's murder, or the appellant's involvement in it, coming to light. Considerable leniency must be extended to the appellant in those circumstances: Ellis at 604 per Street CJ."
Beech-Jones J in giving the judgment of the Court in R v AA said at [47]: "In this case there are reasons to doubt whether the form of 'assistance' that AA provided on the evening of 23 October 2015 would fall within the passage from Ellis set out above. By the time AA attended the police station, the process for reporting BB and CC's complaints to the police was already in train. Nevertheless, his actions in attending the police station in advance of the police being notified of the complaints, and in admitting some of the abuse, does fall within s 23(1)."
The matter presently under consideration can be distinguished on the basis that not only had the police been advised of the complaint by the victim but the police had actively commenced investigating the complaint. It is not a case of the offender attending the police station in advance of the police being notified of the complaint.
However, in the matter presently under consideration, while it is most certainly not the case that there was no prospect of the offender's conduct coming to light without his admissions, there was certainly a real possibility that he would not be found guilty of the more serious offending involving penetration. In these circumstances noting that minds may differ on whether or not such an allowance should be extended to the offender, I am prepared to extent a small numerical discount for assistance. The question then arises as to the extent of that discount.
Section 23 of the Crimes (Sentencing Procedure) Act relevantly provides: 23. Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
In the matter presently under consideration the significance and usefulness of the offender's assistance is that it made his conviction for the more serious offending involving penetration inevitable. There is no reason to doubt the truthfulness of the assistance. The nature of the assistance is in the form of an admission. The assistance came in the course of the police investigation and accordingly is timely. The only benefit the offender will receive is the small numerical discount. There is no evidence that the offender will suffer harsher custodial conditions because of the assistance. There is no evidence of any injury suffered by the offender or the offender's family or risk of such injury and the assistance concerns the matter for which the offender appears for sentence.
Any discount for assistance will be for past assistance.
As stated earlier, in the course of the sentence hearing I inquired of Mr Heazlewood as to what he submitted was the value of the combined discount for the plea and the assistance. He replied with words to the effect of that he had given the matter some thought and went on to submit, rather boldly in my opinion, a combined discount of 75%. With respect to a very able and experienced counsel he clearly had not given the matter sufficient thought.
On the issue of quantum of the discount to be allowed for assistance the Court of Criminal Appeal Harrison J, (Beazley JA (as her Honour then was), Hislop J agreeing) reviewed a considerable number of authorities in R v AD [2008] NSWCCA 289 at [63]-[67]. There is also the decision of SZ v R [2007] NSWCCA 19; (2009) 168 A Crim R 249. Buddin J in that decision (Simpson J - as her Honour then was - agreeing and with the additional comments of Howie J), Howie J agreeing with additional comments) said at [53]: "However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47."
The additional comments of Howie J essentially went to factual errors in his Honour's judgment in El Hani v R. Howie J in SZ v R said at [3]: "I acknowledge the factual error in the last sentence of the passage of my judgment in R v El Hani [2004] NSWCCA 162 quoted by Buddin J. As counsel for the applicant, quite justifiably, sought to use those errors to undermine the authority of that decision, I should indicate that having reconsidered the matter I do not recant from my view that in general a combined discount for pleas of guilty and assistance should be given and that such a discount should not normally exceed 50 per cent."
It is obvious from the authorities that a combined discount of 50% is reserved for the exceptional case. The matter presently under consideration in my opinion is nothing like such an exceptional case. In all of the circumstances and considering the various authorities to which I have referred the discount for the assistance in this matter is 5%, meaning a combined discount for the plea of guilty and the assistance is 30%.

Submissions

Despite the Crown's robust attitude I am not favoured with any decisions or statistics. This court is becoming increasingly weary of robust submissions being made by one party or the other (and in this case both) and there being no effort to assist in underpinning that submission with authorities or other material. On this issue I particularly note Mr Heazlewood's submission as to the value of the assistance.
I inquired of the Crown at the sentence hearing as to whether the Crown would still submit full time custody was the only appropriate sentence if the court was dealing with the offender when he was aged 14 years. The Crown was quick to remind the court that the offending was such that it always had to be dealt with according to law and answered in the affirmative also putting that a finding of special circumstances could be made. The Crown also puts in written submission, "The Crown submits that removal of suspended sentences, the legislature's restrictions on sexual offences being dealt with by way of Intensive Correction Order are also signposts available for consideration of the Court in determining the appropriate penalty to be imposed." Those are valid submissions but rather tend to overlook the age of the offender at the time of the offending.
On the issue of the court not being able to deal with the matter by way of Intensive Correction Order I note the decision of Tsokos v R unrep. NSWCCA 16.6.1995. In that decision RS Hulme J (Gleeson CJ and Powell JA agreeing) said: "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."
In the matter presently under consideration the choice of sentencing options is stark: a Community Corrections Order or, if I find the threshold in section 5 of the Crimes (Sentencing Procedure) Act is crossed, full time imprisonment.
Otherwise I have dealt with the various submissions of the parties.

General Remarks

Price J (Hoeben CJ at CL, Campbell J agreeing) said in R v Cattell at [123]: "When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing judge should: (a) Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned; (b) Determine the facts as now available to the court; (c) Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence; (d) Identify where the offence falls in the range of objective gravity of that offence; (e)Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSP Act; (f) Set a non-parole period in accordance with s 44 of the CSP Act as it operates at the time of sentence, and (g) Fix the balance of the term of the sentence."
Given the age of the offender at the time of the offending it is difficult in the extreme to discern a sentencing pattern. Despite s 25AA of the Crimes (Sentencing Procedure) Act it cannot be that an adult who offended when a juvenile is sentenced according to his age at sentence. I am fortified in this given what the court said at [18] in BM v R [2019] NSWCCA 223, which is extracted below in these remarks. I have set out the facts in some detail. I have noted the maximum penalty and the relevant standard non-parole period. I have made an assessment on the objective gravity of the offence. I have set out the various aggravating and mitigating factors. The issue remains as to whether the threshold as set out in s 5 of the Crimes (Sentencing Procedure) Act is crossed.
Accepting that MC v R [2017] NSWCCA 317 is authority for the proposition that judicial memory is not always reliable on the issue of past sentencing trends, it occurs to me that if the court was dealing with a fourteen year old offender when he was that age it is not inevitable given the findings as to objective seriousness and the various subjective matters that a sentencing court would find that the threshold in section 5 of the Crimes (Sentencing Procedure) Act is crossed.
I accept that ordinarily with offending such as the court is dealing with in the matter presently under consideration general deterrence is a very significant issue in the sentencing exercise. Ordinarily in cases involving sexual assault on children there is a strong need for general deterrence to be factored into the sentence. This goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said: "The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]: "It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: 'This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].'"
In the matter presently under consideration the impact of general deterrence is significantly lessened because of the age of the offender at the time of sentencing.
Price J in R v Cattell also said at [116]: "The absence of any reference to the consideration of s 25AA(1) in his Honour's sentencing remarks leads to the inference that the judge may have overlooked the requirement that he was obliged to sentence the respondent in accordance with the sentencing patterns and practices that applied at the time of sentencing for those child sexual offences that fell within the definition in s 25AA(5)."
I am very much aware of s 25AA of the Crimes (Sentencing Procedure) Act. One of the significant complicating features in this matter is the age of the offender at the time of the offending.
I must give proper regard and 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.
I have undertaken what research I can. There is the decision of Cogswell SC DCJ in the matter of Viridian v R [2014] NSWDC 265. The facts are quite similar to the matter with which I am dealing, noting that the victim was six and the offender was 14 and a few months. The matter involved digital penetration in circumstances not dissimilar to the matter with which I am dealing. The offender was still a juvenile and the matter had been reported promptly to police. The matter was dealt with by a sentence of 1 year 10 months suspended upon the offender entering into a bond to be of good behaviour pursuant to what was s 12 of the Crimes (Sentencing Procedure) Act. Cogswell SC DCJ declined to exercise the discretion to record a conviction. There is no such discretion in the matter presently under consideration noting the present age of the offender.
In another matter the details of which I cannot obtain a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 was imposed for a period of 12 months.
There is however the decision of BM v R where the applicant (i.e. BM) was between 13 years 10 months and 15 years of age at the time of offending. That matter involved multiple offending that occurred over a few years. The matter presently under consideration involves one isolated offence. However BM had in his favour in mitigation that he was suffering from a mental condition. The Court (Payne JA, Fullerton and Bellew JJ said at [12]-[14]: "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. [1] Other than a sentence of full-time imprisonment, his Honour had only the option of imposing a Community Correction Order, perhaps including community service work as a function of that Community Correction Order. [13] We do not accept that the sentencing judge erred in concluding that the s 5 threshold had been reached in respect of counts 1 and 2. The determination of where an offence lies on the scale of objective seriousness is an evaluative decision not lightly interfered with by this Court. It is only when a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration that this Court should intervene. This was a case where it was open to the sentencing judge to find that the s 5 threshold had been crossed. It was open to his Honour to conclude that no sentence other than full-time custody was warranted. We also reject the submission that it was not open to the sentencing judge to conclude that the fact the offending took place in the victim's home was an aggravating factor. In our view, it was. The young victim was entitled to feel safe in her home. [14] We have concluded, however, that despite the care which must be taken in intervening in relation to a sentencing judge's assessment of objective seriousness, this is a case where intervention is warranted as the sentencing judge has failed to take into account a material consideration."
Their Honours went on to say at [18]: "As to the first matter, the age of the applicant at the time that counts 1 and 2 occurred, the Crown in this Court very fairly accepted that the applicant was entitled to be sentenced on the basis that he was 13 years and 10 months old at the time of the offences in counts 1 and 2. If the age of a young offender who had committed child sexual assault offences is properly to be taken into account in an assessment of objective seriousness of the offence, the offender's age at the time of the offending must first be determined by the sentencing judge. Here, the agreed facts provided that the applicant "would have been aged 13, 14 or 15 years" at the time counts 1 and 2 occurred. In providing the context relevant to an assessment of objective seriousness, there will usually be a considerable difference between a young male offender aged 13 and a young male offender aged 15. The age of the young offender, being a matter relevant to the assessment of objective seriousness of the offence, is a matter required to be proved by the Crown. The most the Crown proved here, by reason of the plea of guilty and the agreed facts, was that the applicant was 13 years and 10 months at the time of the offences in counts 1 and 2. The sentencing judge did not proceed on that basis."
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. In the matter presently under consideration given that the offender was only just 14 years of age at the time of the offending taken with the assessment of the seriousness of the offending I am of the opinion that this matter can be dealt with by other than a sentence of imprisonment. This should not be taken as any type of precedent. The particular factual circumstances in this matter are very unusual.
The plea also assists the offender in this regard. I note what was said by Spigelman CJ (Wood CJ at CJ, Foster AJA, Grove & James JJ) in R v Thompson & Houlton (2000) 49 NSWLR 383 at [160 (iv)], namely: "(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."

Orders

In respect of the offence: "That (you) (on or about) 27 February 2010 at [a town] in the State of New South Wales did have sexual intercourse with MC, who was at that time under the age of ten years, (namely) of the age of 5 years". You are convicted.
I release you on a Community Corrections Order for a period of 3 years. The conditions of that order are the standard conditions, namely: 1. You do not commit any further offences; and 2. You appear for sentence in respect of any breach of that order.
The additional conditions are: 1. You perform 235 hours of unpaid community work; and 2. For the period of the order for such lesser period as might be deemed appropriate you are to accept the supervision of the Department of Community Corrections and obey any reasonable direction of the officers of that Department.
I have concluded (see [110]) that this matter can be dealt with other than by way of sentence of imprisonment. The findings relating to assistance do not affect this finding. Therefore effect must be given to the 5% discount for assistance as the discount for assistance. I have applied the numerical discount for assistance to the hours of unpaid work with the starting point for the work hours of 250 hours less 5% with some minor mathematical rounding down.

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