R v Warner

District Court of NSW|2020-09-18

ikely to lead to the identification of the offender or other children. Identifying information has been removed from the published version of the judgment to comply with the statute.

Introduction

From October 2011 to January 2013 the Warner family fostered two sisters and their younger brother, Alison then aged 14 and Kate then aged 10. Their brother was then aged 11. The girls lived at the Warner family home in southern Wollongong. Joe Warner (Warner), then aged 14, apparently interacted well with his foster siblings. The foster children moved to another foster family in 2013.
In mid-2016 the girls complained to their then foster mother that Warner had sexually interfered with them. The girls were interviewed by specialist police in September 2016. Police sought advice from the Director of Prosecutions (DPP) in May 2017. The DPP responded in November 2018. On 3 August 2019 Warner was charged. In total 13 counts were put before the court for trial. It was alleged that on 5 occasions he indecently assaulted Alison: s 61M(2) Crimes Act 1900. And that on one occasion he had sexual intercourse with her by digitally penetrating her vagina: s 66C(1) Crimes Act 1900. So far as Kate was concerned, it was alleged that on 6 occasions he indecently assaulted her: s 61M(2) Crimes Act 1900.

Facts for sentence

The jury were directed about the need to focus on the evidence relating to each count and about not compromising when determining whether counts had been proved beyond reasonable doubt. The jury were given, what is commonly referred to as, a Markuleski direction: Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82. The only evidence implicating Warner on each of the 13 counts charged came from the complainants. Counts 5 and 11 were the only matters where both complainants gave an account of the same incident.
After the verdicts were returned I indicated I intended to sentence on the basis of the version given by each of them in their police interviews that were played to the jury as their evidence in chief. That suggestion was accepted and adopted by the parties and the following summary was prepared jointly by them.

Count 10 - Aggravated Indecent Assault

One day, between May 2012 and December 2012, Kate was in her bedroom playing with her toys. The offender entered the complainant's room and said, "Hey, come into my room. I want to play a game and watch some TV with you. The complainant said, "I don't want too." The offender said, "Come on. Please. I won't do anything." The complainant agreed and went into the offender's bedroom.
The complainant sat on the offender's bed whilst he sat on the black footstool at the end of his bed and they watched some TV. After a while, the offender said, "Come play down here. We can play with some of my toys." The complainant moved off the bed and sat on the floor near the offender to play with his toys.
The offender said, "Lay down." The complainant said, "Why?" The offender said, "Just lay down." The complainant lay down on the floor. The offender then lay on top of the complainant and commenced rubbing his body against her, moving his stomach and lower body against hers.

Count 5 and 11 - Aggravated Indecent Assault

As the offender was laying on top of Kate and moving his body against her, Alison came into the room. She said, "What are you doing to my sister?' The offender said, "Nothing" before asking Alison to sit with them. Alison sat down next to the offender and Kate.
The offender sat between both victims and commenced rubbing both victims on their vagina with his hand on the outside of their clothing. After a short while the offender stopped and Alison left the room.

Objective seriousness

Every act that involves the sexual interference with a child is serious. There is an absolute prohibition on sexual activity with children. The laws prohibiting such crimes and the heavy penalties usually imposed are intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity": Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56.
The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of indecent assaults against children: Corby v R [2010] NSWCCA 146; Van Ryn v R [2016] NSWCCA 243.
Here, the offences occurred in the family home where both complainants were entitled to feel safe and secure. The offender was effectively their older brother. The offending occurred on the one day. The offending involved the offender initially lying on top of Kate (who was 8 or 9 years old at the time), and later sitting between both victims and rubbing their pubic area on the outside of the clothing for a short period of time. Alison was 13 years old at the time. The offending against Kate is more objectively serious due to the larger gap in age between her and the offender.
As the Crown properly submit "The offending is not the most objectively serious for matters captured by this offence, but it is also something a bit more than a brief touching:" MFI 1 - sentence.
Mr Fraser, for Warner, submitted that the lack of opposition shown by the complainants was relevant to my assessment of the objective gravity of the offending. He referred me to R v Nelson [2016] NSWCCA 130, R v Hogan [2008] NSWCCA 43 and Wakeling v R [2016] NSWCCA 43: MFI 2. With respect, given the age of both complainants relative to the offender, their position as foster children in his home and their evidence that they submitted reluctantly to what was done to them "lack of opposition" here could not reduce the seriousness or gravity of the offending.

Victim Impact

The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s 30E (5) Crimes (Sentencing Procedure) Act 1999 (C(SP) Act.)
Behavioural responses to child sexual abuse vary; no unique set of behavioural constellations have been identified. Responses vary because of the diversity of abuse experiences. A sentencing court must recognise that all forms of child maltreatment present significant risks for later physical and emotional well-being. Any sexual interference with a child can led to developmentally inappropriate and dysfunctional interpersonal relations, feelings of betrayal of trust, powerlessness and guilt and shame about the experience. Significant longer term effects have also been identified: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11.

Maximum Penalty

The maximum penalty for a s 61M(2) offence was 8 years imprisonment. That maximum is one important guide to the exercise of my sentencing discretion. The standard non-parole period does not apply if the offender was under the age of 18 years at the time the offence was committed. S 54D (3) C(SP) Act.

Delay

Section 25AA C(SP) Act applies to these proceedings. In some cases an offender will not benefit from an extensive delay in the revelation of offences even if they not offended again. That is because during the delay they have escaped justice and enjoyed a life free from opprobrium or punishment for their crimes: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.
But any sentence after a long delay requires a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59 at [14]. Here, Warner offended on one occasion and apparently ceased offending without formal intervention. The delay in bringing the matter before the court operates to his advantage as it gave him the opportunity to demonstrate his capacity for maturity and rehabilitation. It also indicates his capacity to lead a pro-social life and makes it less necessary to punish him in order to deter future offending.
Section 25 AA does not preclude the applications of legal principles relating to the sentencing of those who offend while young. If anything, in recent years sentencing patterns and parties have reflected a greater understanding of crimes committed by the young and immature and the need to take care in assessment of their moral culpability. Further, Warner has lost the opportunity of being dealt with in the Children's Court. Had these matters been reported in 2012 they would, in all probability, and more appropriately, have been dealt with the Children's Court; ss 17 & 18 Children (Criminal Proceedings Act 1987 (C (CP) Act). The probability of summary disposal here is a mitigating factor: Zreika v R [2012] NSWCCA 44; R v El Masri [2005] NSWCCA 167. Had Warner been sentenced by the Children's Court convictions could not have been recorded: s 14 (1) C (CP) Act. See [32-36] below.

Offender's Subjective case

Warner gave evidence at his trial. He denied and continues to deny the offending. He is not to be punished in any way for exercising his right to trial but he can gain no benefit from any evidence of remorse or contrition. He has no criminal convictions.
Reports were provided by Ms Van De Velde a Forensic and Clinical Psychologist and Mr Hayes prepared a Sentence Assessment Report (SAR). What is set out in the reports relating to the offender's personal circumstances is not controversial.
In summary Warner reports a happy childhood with his parents who regularly fostered other children. Following his parent's separation he moved with his mother to Queensland and lost contact with his father. His relationship with his mother deteriorated as he got older and there was conflict with his step-father. He now lives locally with his father and Grandmother.
He self describes as "shy." He is in a "relationship" but as she is in Queensland contact with her is limited to electronic communications while the State border remains closed. He does not drink but is a regular marijuana user. He has a 'lazy eye' and that condition has led to bullying and social isolation.
He engaged well with Ms Van De Velde, who detected no mental health difficulties. In her opinion he poses a low risk of offending. She said that measure could be put in place to reduce any risk even further and increase his insight into his offending behaviour. A treatment plan involving motivational interviewing, seeing a psychologist trained in dealing with adolescent sexual offending and Cognitive Behaviour Therapy is recommended. He would also benefit from drug relapse prevention counselling and vocational training.
Community Corrections could implement a supervision plan to confirm he is living a stable life in the community and refer him to a Community Corrections senior psychologist for comprehensive risk assessment and consideration of intervention options.

Submissions

I have considered and addressed the comprehensive written and oral submissions of the parties in coming to my determinations as to the appropriate sentences in each matter. In short summary Mr Fraser, Public Defender, for the offender submits all the purposes of sentencing could be meet by a Conditional Release Order without a conviction being recorded, noting what was said in R v Mauger [2012] NSWCCA 51 and R v Ingrassia (1997) 41 NSWLR 447 at 449.
Mr Coulton, Solicitor Advocate for the Director of Public Prosecutions, submits a conviction and a Community Corrections Order with conditions designed to encourage engagement in Ms Van De Velde's treatment plan could meet all the purposes of sentencing.

Youth

The principles governing the sentencing of children are well recognised. Some are set out in s 6 C (CP) Act. Courts recognise and emphasise the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during childhood: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; Howard v R [2019] NSWCCA 109. In R v GDP (1991) 53 A Crim R 112, the court referred to the decision in R v Wilcox (15 August 1979, unreported) where Justice Yeldham remarked during the course of sentencing a young offender that "... in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation."
Those principles have particular application here as Warner is still young and relatively immature and they would have been given full effect had the matters been disclosed when Warner was still a child..

Disposition

Although Warner was 14 when the offences occurred he was 21 when he was arrested. He must be dealt with according to law and not by the Children's Court: s28(1)(c) C (CP) Act. The penalty regime in the C (CP) Act does not apply: s16. He must be punished according to law.
Section 14 (1) C (CP) Act prohibits the recording of a conviction in "relation to a child who is under the age of 16 years." There is some ambiguity in the language of that section. To give proper effect to the intent of the section a conviction must not be recorded if the offender is under 16 years 'at the time of the offence.' That interpretation would accord with the purposes and structure of the C (CP) Act and longstanding principles relating to how the law applies to those who commit crimes when aged just 14: Bignill v DPP [2016] NSWCA 13; s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
If Warner cannot be dealt with or punished under the Children's Court regime does s 14 apply to him? Section 14 (2) C (CP) Act provides that 14 (1) "does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily." Accordingly, I must deal with Warner according to law and s14(1) does not apply - the delay in charging him until he turned 21 has left open the option of convicting him even though had he been charged at the time or a few months earlier convictions could not have been recorded.
The importance of not recording a conviction for offences committed by children and the requirement that full effect be given to a period of not offending were recently reinforced, all be it in a different context, by the Court of Criminal Appeal: Dungay v R [2020] NSWCCA 209.
There are options available for sentencing adults without proceeding to conviction, but they are limited. I can discharge Warner without conviction after having regard to his character, antecedents, age, health and mental condition, and any other matter that the court thinks proper to consider. I can also make him subject to a conditional release order if it is expedient to do so: ss 9 &10 C (SP) Act.

Registration - Child Protection (Offenders Registration) Act 2000

Although Warner committed the offences while he was child he is still a "registerable person" under the Child Protection (Offenders Registration) Act 2000 as he committed more than one offence involving sexual touching or a sexual act: s3A.
While the fact that a person may be subject to an order pursuant to the Child Protection (Offenders Registration) Act 2000 cannot be taken into account as a mitigating factor on sentence: s24A C (SP) Act, I do however have a discretion to make an order declaring that the person is not be treated as a registrable person in respect of the offences: s3C.
There is no evidence before the Court, other than for the matters he faces sentence, that the offender poses a risk to the lives or sexual safety of one or more children, or of children generally. Here given his age and immaturity when he committed the offences, that this appears to be a "one off" incident and his otherwise good character since 2012 there is no utility in him being placed on the register.

Synthesis

Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence for sentence. Sentencing courts have an obligation to vindicate the dignity of each victim, particularly child victims of indecent assaults and courts have a duty to express the community's disapproval of such offending. Here however having regard to the relatively low level nature of the assaults and the relative ages of the children involved and Warner ' otherwise good character, his age when he offended and his age now and his treatment needs, it is inexpedient to convict and impose any penalty other than a conditional release order.

Orders

In accordance with the jury verdicts there will be findings of guilt in relation to counts 5, 10 and 11.
Count 5 Indecent assault person under 16 years of age (DV) - Without proceeding to a conviction I discharge the offender on a Conditional Release order for a period of 9 months.
Count 10 Indecent assault person under 16 years of age (DV) and Count 11 Indecent assault person under 16 years of age (DV) - Without proceeding to a conviction I discharge the offender on a Conditional Release order for a period of 1 year 6 month.
The standard conditions of the order apply to each Conditional Release order: You must not commit any offence and you must appear before the court if called on to do so at any time during the term of the order.
The following additional conditions apply to each Conditional Release order: 1. Report within 7 days to Wollongong Community Corrections. 2. Engage in psychological treatment as directed 3. Engage in drug relapse and prevention treatment as directed: s10(1)(b) & s 9 C(SP) Act.
I declare that the offender is not a registerable person pursuant to the Child Protection (Offenders Registration) Act 2000.

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: 01 October 2020

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