A boy barely into his teenage years and driven by curiosity sexually assaulted a six year old girl. The assault was very serious. He penetrated her vagina with his finger. The girl - commendably and sensibly - immediately reported what had happened to her parents. The boy owned up straightaway.
The boy soon realised how serious his behaviour had been. He was arrested and charged with a crime. It was no ordinary crime. The crime is called sexual intercourse with a person under ten. It is made into a crime by s 66A(1) of the Crimes Act 1900, a law enacted by the Parliament of New South Wales.
Parliament regards that crime as so serious that it has fixed to it a maximum penalty of twenty-five years imprisonment. Not only that, Parliament has specified that a judge should take into account in sentencing a person for that offence - as a guide - that normally a person would serve a minimum of fifteen years imprisonment in full time gaol as a standard non-parole period for that crime.
The boy also realised the other consequences of his criminal behaviour. There was an estrangement between the two families, his and the little girl's family, who were formerly friends. There was a significant degree of active community disapproval within the small country town where he lives.
It is my job today to sentence the boy, having heard evidence from him yesterday and arguments from his barrister, Mr X, and the solicitor for the Director of Public Prosecutions, Mr Y.
First it is important to say that I have not referred to the name of the boy. These remarks that I am making in sentencing the boy are likely to be published. The boy will be referred to by a pseudonym. I will not refer to the town where he lives, and I will direct that in any publication of these remarks that there be no reference to where I am sitting in these sittings.
I should say briefly what is agreed between the prosecution and the defence as a statement of what happened.
R v Viridian [2014] NSWDC 265 | Case summary | Zoe
As I said, the victim was a six year old girl. The boy had just turned fourteen a month beforehand. Both families were friends. On 2 April 2014 the little girl was at a birthday party of the boy's sister. During the afternoon the boy and the little girl were in the yard when the boy asked the girl what she was wearing under her dress. She said "gym nicks" and he asked to see under them. What happened then is described in the agreed facts as follows - "He pulled down the nicks and placed his finger just inside her vagina. She asked him to stop as it hurt and he did so."
As I said, the little girl disclosed what had happened to her mother who immediately returned to the party and asked the boy's mother. They both asked the boy who confessed straightaway. He ended up at the police station where he appeared to the police officer "quite remorseful and continued to make admissions" about what he had done.
The little girl had to be taken to a hospital. She was examined by a doctor. The "results of the examination were consistent with the allegations" made by her. There were "no identified physical injuries" to her fortunately.
The boy was arrested and charged. The boy has no prior criminal convictions.
A victim impact statement has been prepared by the little girl's mother. I do not propose to read it all, but I am going to read parts of it. I have read it all and so has the boy, who read it all when he was giving evidence yesterday.
A conscious effort was made by the little girl's parents "to sever all ties with all members" of the boy's family. Beforehand "we were family friends and spent a lot of time together". The attendance at hospital which I referred to "was frightening" for the little girl. She had to be examined by a paediatrician and was …"not allowed to shower, felt dirty as she usually showers twice a day and was worried about her school uniform, underwear and school shoes being put in the brown bag as school photos were the following day". She was "scared, crying a lot in the first 24 - 48hrs, slept badly". The little girl's family live close to the boy's family and the little girl "was constantly scared about running into the offender". The family is aware that they might see the boy in town.
The little girl "asked many hypothetical questions on a regular basis", especially at night time. She "spent a lot of time thinking about the situation". She asked a lot of questions and slept badly compared to her sleep pattern beforehand. She needed constant reassurance that she would be all right "and that the offender would not come near her again". When she attends the local netball courts she is particularly nervous because that is not far from where the boy lives. She still worries and is thankfully in a very protected and supportive environment at her home.
The boy's sister "was our family baby-sitter and she spent a lot of time at our place and regularly stayed in our home". One consequence of the crime is of course that the baby-sitting relationship ended. The little girl "adored her" and has often referred to the situation and asked many questions.
The impact on the little girl spilt over into her schooling. Fortunately her work was not affected "but her need to discuss the incident with her close friends at inappropriate times became a concern". Of course she had missed some school at the time that it occurred in order to go to the hospital. She had missed the class photograph. The teachers are monitoring the little girl's behaviour and the parents have regular meetings with the staff at school.
The little girl's mother concluded that "this incident has had a dramatic effect on the way [the little girl] now lives". They minimise the time they spend in the country town where her family and the boy's family live. They have to change route when travelling. It is difficult to explain to the little girl and there is a "constant necessity in the need to avoid contact" with the boy in order to ensure that the little girl feels safe.
This statement graphically illustrates the kind of impact which this sort of crime can have on its victim, particularly a victim as young as this one. It is important that a judge always bears in mind in sentencing an offender just how serious the crime was. That is why I have set out at the start all that I have said about the offence, and the impact which it has had on its victim.
It is important to bear that in mind because a judge then also must take into account the personal circumstances of the offender himself or herself. That is an important aspect of sentencing. When offenders are represented in Court their lawyer will bring forth evidence about the offender's circumstances and personal features so that they can make arguments which might affect or reduce the sentence. This is the purpose of legal representation and the purpose of Court proceedings in this country.
The nature of Court proceedings in this country is adversarial. One party is the Director of Public Prosecutions and the other party is the offender in a case such as this. Each party is competently represented and the arguments on both sides are presented. That has happened competently and effectively in this case.
Having said that, I should now turn to some of the material which has been put forward about the boy offender.
One thing I say at the commencement is that he pleaded guilty at the earliest available opportunity. The law in New South Wales is this. A person can plead not guilty and go to trial. A jury is summoned, as will happen with another case in these sittings, to determine whether or not the prosecution has proved the guilt of the accused. That obviously takes many days and is a very costly process for the criminal justice system. If an accused person pleads guilty then the law recognises, as a practicality, the savings which the plea of guilty makes in the justice system. Other cases can be put in because the plea of guilty means that that particular case will be much shorter. It will take hours instead of days.
That has happened in this case. The law in New South Wales is that the earlier a person pleads guilty the higher the discount. In this case the prosecution and the defence agree that the boy has pleaded guilty at the earliest available opportunity. The law provides that he will get 25% discount on any prison sentence which I impose. I will be imposing a prison sentence although I have announced that I will suspend it. And I will be discounting the prison sentence by 25% in due course because of his early plea of guilty.
In this case there were two very helpful reports about the boy. When a child - that is, at law, a person under 18 - commits an offence, the New South Wales Juvenile Justice prepares a report. A very detailed report, dated 10 October 2014, has been prepared in this case. In addition in this case, Mr X and his instructing solicitor have obtained a report from a local clinical and forensic psychologist, dated 6 October 2014.
Both of those documents have been very helpful in assisting me with this case. Not only that, Mr X called his client to give evidence.
I said yesterday, and I repeat, I have heard evidence obviously in my professional capacity many times over the years. This boy's evidence was impressive. He struck me as insightful and sincere in what he said. He realised the impact which his behaviour had had, and its seriousness. He extended what appeared to me to be a sincere apology to the victim of his crime, the little girl, and to her mother, who was in Court at the time that he gave evidence. He extended his apology to his own family. I accept his evidence.
One more thing I need to decide, before giving detail about the personal circumstances of the boy, is to assess how serious an example of this crime this case is.
As I said in argument, this crime covers a lot of conduct. One has to be graphic in describing such conduct. In a hypothetical example, a forty-five year old predatory man could have full penile/vaginal sexual intercourse with a seven year old girl to the extent of ejaculating inside her without a condom. That is just an example, but it would be the same offence. He would be charged with the same crime. The fact that the boy's crime falls within the same law shows just how serious the crime is regarded by Parliament. But it is equally clear that, in the hypothetical example I gave, that is a far more serious instance of the offence than in this case.
I do not isolate the fact that in the hypothetical example, I used penetration by the penis, whereas in this case it involves penetration with the finger. But all the circumstances of the hypothetical case are different to those of this case. The predatory nature of the man, the age of the man, the nature of the intercourse and unprotected ejaculation are all factors which are not present in this case.
In addition, it is clear from the helpful psychological report and from the boy's evidence, that the driving factor was more curiosity and inquisitiveness rather than a sexual drive and sexual satisfaction.
That does not make the act committed any less serious, but motivation is part of assessing the seriousness of the crime.
In this case, we have been told that the boy had inappropriate and unsupervised access to pornography on the internet. He had been viewing it for a couple of years, obviously as he matured into puberty and towards adulthood. He explained to the counsellor and to me in Court that part of the motivation was to see a vagina in real life. That is why he wanted to see, as he said, inside a vagina. He acknowledged in Court and to the counsellor "a degree of sexual arousal upon seeing the child's vagina".
The psychologist concluded that the boy "was considered to have been out of his depth in managing psychologically the impact of the viewing of pornography on him. There also appears to have been inadequate supervision of his use of the Internet and his mobile phone." This is important for me in assessing the seriousness of the case. As he said to the psychologist, he "had wanted to see a vagina in real life given his exposure to the pornography."
I also need to take into account that the victim of his crime was very young. It is obviously a more serious example of the crime if a victim is two or three years old than if a victim is eight or nine years old. So in this case the victim was six years old, well under the maximum age of ten for an offence to have been committed of this kind. Fortunately for the girl the penetration was "just inside her vagina" and the boy stopped as soon as she said that it hurt.
Mr X submitted that the offence should be regarded as towards the lower end of the scale in degree of seriousness. I agree with that submission. It was acknowledged to be an appropriate submission by Mr Y as well.
Given the age of the boy - just maturing through puberty into adulthood - and his motivation, but as well as taking into account the age of the girl, I regard it as quite low in the degree of seriousness, but not so low as to avoid a prison sentence.
As I said, the boy had just turned fourteen when he committed this offence. His father had died the same year that he was born. He has a stable and firm relationship with his mother and his brother and sister at home. He has also developed a relationship with the school counsellor at the school that he attends. She has been very supportive and intervened at various stages, particularly when the boy was subjected to rumours and bullying. The boy is continuing to see the counsellor in a constructive and helpful way.
The boy had some employment in the country town where he lived, but that employment was terminated. He was sacked. The boy's mother explained to him that that was because of what the employer had learned about what he had done. Not only that, the boy had been a member of the local swimming club for nine years - a long time given his age. The local swimming club had a meeting and resolved that the boy be expelled from the club and that his membership be cancelled, based upon misconduct.
I repeat, the boy has strong family support, especially from his mother. The Juvenile Justice report said that she "appears to be a very strong support and advocate" for the boy "whilst also being able to acknowledge the distress that the offence has caused to the victim and her family". The report noted that the boy's mother "has acted proactively in this matter" engaging the services of the psychologist to address the boy's needs very quickly after the incident occurred. The Juvenile Justice report indicated that assessments show that the boy "accepts full responsibility for the offence and displays signs of remorse and guilt". It noted his ongoing counselling with the counsellor and said that Juvenile Justice intervention "could include the development of an individualised case plan to address any other areas of need which are identified through ongoing supervision and assessment". I should add that the Juvenile Justice report confirmed the boy's expression of remorse and that he was prepared to accept full responsibility for what happened.
A Judge needs to look at the prospects that an offender whom the Judge is sentencing will be able to rehabilitate themselves. In fact that is specifically one of the purposes of sentencing which the law in New South Wales acknowledges as important. Again, it has set it out in the Crimes (Sentencing Procedure) Act 1999 that one of the purposes of sentencing, apart from making an offender accountable for their actions and denouncing the conduct and recognising the harm to the victim is "to promote the rehabilitation of the offender".
In addition, in a case where a Court is sentencing a child - again, I mean a person who is under eighteen - the law provides for certain principles to be taken into account. They are set out in s 6 of the Children (Criminal Proceedings) Act 1987. The principles include that children committing offences bear responsibility for their actions "but, because of their state of dependency and immaturity, require guidance and assistance". It is desirable "to allow the education or employment of a child to proceed without interruption". It acknowledges a child's "rights and freedoms before the law" equal to those of adults. It acknowledges the importance of allowing a child to stay at home and acknowledges the desirability that "children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties." It acknowledges as well the importance of consideration to the effect on the victim which I have acknowledged in this case.
The boy's prospects of rehabilitation are, in my opinion, very good. He is in a supportive family and is getting active assistance from the psychologist and from the school counsellor. I repeat, I was particularly impressed by the boy volunteering his insights about the effect which the pornography had on him. He had learned this through counselling. His schoolwork has in fact improved and he is managing to maintain some friendships, although others have obviously been affected.
I think it is unlikely that he will re-offend in this way. I do not say that lightly, but I say it based upon the evidence before me. The Juvenile Justice report includes standard assessments, which indicate that the factors pointing towards rehabilitation are not elevated in the boy's case. The psychologist's report also said that based on "the information gained during the course of assessment and treatment, it is considered he is in the low range in relation to risk of re-offending". The psychologist has set out a plan for dealing with ongoing treatment. He has already had five sessions with the counsellor.
Mr X pointed to the significant degree of extra curial punishment. That means this. Sometimes an offender who is being punished by way of sentence by the Court comes to Court with a history of punishment already inflicted legally but outside the Court system. This case is a classic example. We know from the evidence that the boy has been excluded from his local swimming club. I do not comment on the appropriateness or inappropriateness of that exclusion. It is not my business. But it is the case that the boy who was a member for some nine years can no longer go there. He has lost his job and because knowledge of his crime is apparently known generally within the community of the town, his prospects of re-employment may be slim. He avoids the sport of basketball which he used to enjoy because of the fear that he would not be accepted back. As a result of his crime, an apprehended violence order has been taken out which limits his behaviour extensively. The effect of it is that he can no longer attend the Church he used to attend and needs to avoid any contact with the little girl. Once again, I do not comment on the appropriateness of this, but the impact is that he is suffering from an extensive social punishment as well as the punishment that I will impose. Mr X emphasised, and I accept, the impact which this kind of extra curial punishment has particularly in a small country town.
There is also an impact on the boy's own family which has to be acknowledged.
Mr X argued that this may be a case where I could proceed without imposing a conviction under s 10 of the Crimes (Sentencing Procedure) Act. Mr Y argued on the other hand that this case was entirely inappropriate for such a course.
I am inclined to agree with Mr Y. The statistics produced by the Judicial Commission of New South Wales seem to support Mr Y. No-one else has received the benefit of an order under s 10, despite the small database of some thirty-one offenders. People are either sent to full time gaol or given prison sentences, which are suspended.
I repeat, this was a serious offence. Just because it is at the lower end of the scale of seriousness compared to other hypothetical examples does not mean that it is not serious. A Judge has to bear in mind that Parliament has fixed the maximum of twenty-five years imprisonment and envisages that normally an offender may spend fifteen years in gaol before getting parole.
The little girl in this case was only six. For that reason I think that the only appropriate sentence in this case is one of imprisonment. The question is how that should be served. I might add that I accept Mr Y's submission that a good behaviour bond under s 9 would also fall short of an appropriate punishment.
I should correct myself. A question to determine before how the prison sentence should be served is how long the prison sentence should be. Having regard to the seriousness of the offending behaviour I would regard an appropriate prison sentence as being one of two and a half years or thirty months in prison. However, the boy has pleaded guilty at the earliest available opportunity. I therefore will discount that sentence by 25%, as the law provides. I will round that discount off to twenty-two months, or one year and ten months in prison.
I now, in the correct sequence, turn to the question of how the prison sentence should be served. Mr Y acknowledged that it would be not inappropriate for the sentence to be suspended. Mr X said that his fallback position would be that a prison sentence should be suspended. I think, given the importance of rehabilitation in this case and the active measures which the boy is taking to rehabilitate himself and the importance of the factors which I have mentioned for me to take into account in sentencing children, that it is an appropriate course in this case to suspend the sentence.
In due course when I make the formal orders I will impose a suspended sentence of one year and ten months.
HIS HONOUR: Now Mr X and Mr Y, in suspending the sentence I need to impose some conditions on the bond. Obviously good behaviour. Now what did Juvenile Justice say about supervision?
X: Your Honour, can I just raise one thing?
HIS HONOUR: Yes.
X: I don't think it was actually raised in the submissions from either my friend or myself. It's been brought to my attention by Mr Z that one aspect, and I'm not sure if your Honour's going to address this, but I'll raise it. Concerning s 19(1) of the--
HIS HONOUR: I know, I am coming to that in a moment. I was alerted to it by something here, in fact the last paragraph in the Juvenile Justice report I want to come to that. Can I just look at the conditions first. They said somewhere they could help - I read it out, I quoted it.
It is on p 7 of 8: "Due to [Angus Viridian]'s ongoing engagement in specific counselling with Dr [Name], casework intervention from Juvenile Justice could include development of an individualised case plan".
HIS HONOUR: So I just need your help Mr X and your help Mr Y as to how to formulate the conditions of the bond so far as Dr [Name] and Juvenile Justice are concerned.
Y: I guess the base provision would be to accept the supervision of Juvenile Justice as they deem fit.
HIS HONOUR: If they want to.
Y: If they want to, yes.
HIS HONOUR: Yes.
Y: So if he - I guess if he's part of their programme for six months and they deem that he doesn't need to be any more then--
HIS HONOUR: Well that is all right. Or indeed if they think well he can stay with Dr [Name] and we do not really need to step in--
Y: That's fine.
HIS HONOUR: --then that is appropriate.
Y: But if you make a general order under the supervision of Juvenile Justice until they deem - something along those lines--
HIS HONOUR: What about Dr [Name]?
Y: Well I guess they could incorporate that themselves. If they see that Dr [Name]--
HIS HONOUR: Well I thought, yes.
Y: Mr Z's just pointed out that to attend other counselling or like services as directed by Juvenile Justice. So that way essentially Juvenile Justice want to ensure he goes to see Dr [Name] so--
HIS HONOUR: So we put it with Juvenile Justice, okay.
Y: --means that they can say "You have to go see him, it's part of the - our supervision"--
HIS HONOUR: So I do not make a direct order about Dr [Name], but I would make an order to accept supervision from Juvenile Justice and to take whatever their recommendations are for treatment.
Y: That way it gives more flexibility to Juvenile Justice and just in case - I mean Dr [Name], who knows, if they leave and you've made a specific order for that.
HIS HONOUR: So he'll see somebody else.
Y: So there's flexibility I think in that--
HIS HONOUR: All right, Mr X what about the school, have a think about the school counsellor as well. Yes?
X: I think if your Honour mentions the whole - the trio, the school counsellor, Ms [Name], Dr--
HIS HONOUR: [Name].
X: --and just under an umbrella of being directed by Juvenile Justice.
HIS HONOUR: What if I put him in supervision of Juvenile Justice and for him to attend such other psychologists, or counsellors as they direct.
X: Direct and approve.
HIS HONOUR: Direct and approve. And as Mr Y says, if you know somebody leaves a practice or changes schools or something, it means that they have the flexibility whereas if I limit it to Dr [Name] and Ms [Name], then that is less flexible.
X: I understand and I think it's quite clearly a situation - particularly with the Juvenile Justice report, they understand where the benefits are coming from--
HIS HONOUR: Yes they do.
X: --from Dr [Name] and Ms [Name], so I wouldn't expect there to be any change.
HIS HONOUR: I think you are right, so they can just coordinate and let it happen with Dr [Name] and Ms [Name], all right. Now what does s 19 say?
X: It goes to your Honour directing that a sentence of imprisonment, as is your Honour's intention with this matter, be served by the offender as a juvenile offender.
HIS HONOUR: Thank you yes. And so it is a s 19(1) direction.
X: Right. So for example if the offender were to breach your Honour's order would there be some assistance given at a later date as to how it should be served?
HIS HONOUR: Well the sentence is only twenty-two months, so he is not going to reach eighteen - sorry I am just reading, subs (3) which they referred to, so that is not relevant. And I do not think I fix a non-parole period for a suspended sentence.
X: No.
HIS HONOUR: All right good, let us formulate some orders. If you would stand up Angus Viridian.
I sentence you to twenty-two months imprisonment. Under s 12(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order suspending the execution of the whole of the sentence for the whole period and I direct that you be released from custody on condition that you enter into a good behaviour bond for twenty-two months. The conditions of the good behaviour bond - I will explain them to you in a moment, but I should state them formally - are these: That you be of good behaviour; that you accept supervision from Juvenile Justice and accept all reasonable recommendations and directions as to treatment by a psychologist or a counsellor as they make; and that you accept any individualised case plan that Juvenile Justice develops.
Under s 19(1) of the Children (Criminal Proceedings) Act 1987 I make an order directing that the whole of the sentence of imprisonment be served as a juvenile offender.
I note that under s 14 of the Children (Criminal Proceedings) Act I have not exercised my power to proceed to or record a conviction.
HIS HONOUR: Now Angus Viridian, you have heard everything that I said - and it took much longer than I thought, it always does - and I have had to sentence you for that very serious thing that you did to that little girl. I have given you a prison sentence. It is one year and ten months, but I have suspended it which means it is up there hanging over you. You have got to stay out of trouble for the next twenty-two months. You are not allowed to commit any of the things that sometimes teenage boys get up to, which might attract the attention of the police. You have got to stay out of trouble. You have got to allow Juvenile Justice to supervise you and help you, do you understand that? They will no doubt say good, keep up the good work with Dr [Name] and [Name], that is very good. And if there is any change in either of those they will help you. They might develop a plan with you to help you into the future. You have to let them do that.
Another condition which I will now fix is, which I forgot, that you attend Court if called upon to do so and another condition is that you notify the registrar of this Court of any change in your residential address.
HIS HONOUR: They are formal but important. If you change your address, if you mum moves and you have moved with her to another address, your mum or you have to ring up the Court here and tell them where you are, so that if they need to come and find you they know where to find you. And if you get a notice saying to come to Court you come up, you do not have the sheriff or the police chasing you. I am confident I will not see you again and nor will any other Judge or magistrate because of what I have said. I am also confident of the progress you are making to sort yourself out and deal with this very serious problem that has cropped up early in your life, but you have got many, many years of life ahead of you and I expect that it will probably make you a more mature person as you go through life with this experience, but we have got to deal with that now. I have not recorded any conviction, so you do not go into life with a criminal record. One important thing that Mr X and Mr Z will explain to you regarding a suspended sentence and the good behaviour bond, it is really important that you do not breach it because what happens if you breach it, you know if you pinch a car, or something like that, you come back before the Court because you have breached your bond, and I am doing cases like that in these sittings with adults, my hands are tied, I have pretty well got to send you to gaol, which you do not want to do. The law makes it very strict. So they will both explain that to you. They will take you to the Court Registry this morning where you will have to sign a bond, probably with your mother as a witness I imagine, and they will explain to you, or one of them will, the bond. So do you understand all that? Do you want to ask me any questions, feel free to ask questions? Okay, all right.
HIS HONOUR: Now I have done my job of sentencing you. It has taken a long time because it was a very serious crime, but you are a quite young offender, very young offender, and so you have heard me give all the reasons and things that I have to give in dealing with it. But it is now finished and it is over to you. I repeat, I am confident that with your mum's support, and your family support and that counselling that you will move on in life and do everything that is expected - that you hope to do. So good luck, all right.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 February 2015