(2002) 56 NSWLR 146
Clarke-Jeffries v R [2019] NSWCCA 56
Engert (1995) 84 A Crim R 67
KT v R [2008] NSWCA 51
Source
Original judgment source is linked above.
Catchwords
(2002) 56 NSWLR 146
Clarke-Jeffries v R [2019] NSWCCA 56
Engert (1995) 84 A Crim R 67
KT v R [2008] NSWCA 51
Judgment (5 paragraphs)
[1]
sentence - ex tempore revised
Steven Young was born in 1987. He is presently 33. His parents are Brian Young and Susan Young. Donna Young, the complainant, in this matter was born in 1992. She is now 28. Her mother is now deceased. Susan Young, Donna and her sister were placed in Department of Community Services (DoCS) care and foster homes. Eventually she and her sister came to live their grandfather, Brian Young. Steven Young, his half-brother, Matthew, and mother also lived in the home. The complainant witnessed Brian Young physically and mentally abusing Steven, Matthew, Susan and her sister. She herself was flogged. Charges relating to sexual abuse of her by her grandfather, Brian Young are before this Court. His trials are listed for later in the year [Note; now concluded]. There is also material before me that shows Steven Young was also physically and sexually abused in the family home, as were other children.
It is in that context that the matters for sentence today occur. The genesis for the offender's behaviour was the complete lack of sexual boundaries in the home presided over by the grandfather, Brian Young, and the violence and sexual violence he inflicted on his wife and all the children in the household.
A number of important but conflicting sentencing principles are raised today But what is clear from all the material before me is that, as the poet, Philip Larkin, said that, "Man hands on misery to man. It deepens like a coastal shelf".
The complainant in this matter never had an opportunity to live a normal childhood. Her life with her mother was blighted. She was put into DoCS care and foster homes, and then placed in a home with the Youngs. There violence and sexual violence became normalised. She was only 9 when sexual acts between her and Steven Young began. The offender was then aged 14. The matters for sentence occurred when the complainant, was aged between aged 10 and 16.
Section 80AF, Crimes Act 1900 applies, and I must, and do, sentence according to the age range set out in the charges and their maximum penalties. The offence's age range means that the complainant was at the very bottom of that range, and that when the offences first occurred the offender himself was just over the age of criminal responsibility.
There are three matters for sentence;
1. Sexual intercourse with a person aged between ten and 16; an act of oral intercourse: s 66(1) Crimes Act 1900. The maximum penalty at the relevant time was eight years imprisonment.
2. Sexual intercourse with a person aged between ten and 16; an act digital penetration.
3. Attempt sexual intercourse with a person aged between ten and 16; attempted penile/vaginal intercourse: section 66D(1) Crimes Act 1900. The maximum penalty, as that section then was, was eight years imprisonment.
The maximum penalties are one important guide to the exercise of my sentencing discretion and the proper application of sentencing principle in 2021. In relation to each of the charges, there is to be taken into account on Form 1, Criminal Procedure Act 1986, counts of sexual intercourse with a person aged between ten and 16, contrary to section 66(1) of the Crimes Act,. They do, here, operate to increase the sentence for the matter for sentence. I do so in accordance with the principles explained in the guideline judgment giving greater weight to personal deterrence and community protection: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146. They also provide some context to the two incidents which led to the charges for sentence.
The first count, relates to an incident where when the offender and the complainant were both at the younger age of the range I have already outlined. The offender placed a piece of rubber shaped like a hose into the complainant's vagina while at the same time masturbating himself Form 1. He then inserted his penis into the complainant's mouth and she sucked him until ejaculation: First Count
The next incident, again involved the insertion of a piece of rubber hose into the complainant's vagina. Form 1. The offender then, the inserting his fingers into her vagina to stretch it: Second Count.
He then where he moved on top of her and tried to insert his penis into her vagina: Third Count, the attempt matter. This caused the complainant pain. She screamed and squirms and he immediately stopped, moved away and apologised. He then inserted his penis into her mouth: Form 1.
It is accepted that and these are representative incidents. The offending ceased when Young moved out of the family home at the end of 2003. The complainant did not come to police attention until 2018.
The offender was arrested in July 2020. He initially denied the offences, but entered the pleas of guilty in the Local Court. Those early pleas spared the complainant the indignity of having to give evidence in court and repeat these allegations in public. It has considerable utilitarian value and attracts the full 25% reduction for that value: s 25D Crimes (Sentencing Procedure) Act 1999. It also indicates an acceptance of responsibility; which is a relevant factor when I come to consider Steven Young's prospects for the future.
The offences occurred in the family home. Ordinarily, this is a matter of aggravation. Here, however, the complainant could not have treated her home as one of safety and refuge. The offences occurred in the context of gross dysfunction within the family, including sexual and other violence. But each of the offences was individually serious, and although the attempt offence could not be punished as if there was full penetration, and it was brief and stopped as soon as the complainant cried out, each offences involved gross exploitation of a child's body for personal gratification of the offender.
In most such cases principles of general deterrence are properly invoked. Here, given delay and the fact that there were no further sexual offences on his record, there is no need to take into account in a significant way specific deterrence.
So far as general deterrence is concerned, it should be obvious to any adult and thinking person that to sexually abuse a child is grossly wrong and will have continuing impact on that child. One important fundamental of our law and legal system is to protect children from abuse. Matters such as this, no matter when or where committed, require adequate and appropriate punishment designed to have an element of retribution attached to it. Retribution which recognises the harm done by such offences to individuals in the community and is meant to vindicate the dignity of a victim of a sexual offence and recognise in the community's eyes how wrong such behaviour is. Only custodial sentences could properly reflect those purposes of sentencing.
Returning briefly to the facts of the matters. In his written submissions Mr Fraser, counsel for the offender indelicately but unintentionally referred to the complainant as being "unwilling." In his oral submissions he made it absolutely clear that he was not suggesting there was consent rather he urged the Court to look at the context in which these offences occurred; noting the absence of any aggravating circumstance.
While there was a lack of resistance by the complainant, but she had been groomed by her grandfather. She had no positive context to allow her understand what was occurring. It is the innocence of her childhood being exploited that is a relevant factor here. That said, as the subjective material will indicate, those factors also apply to the offender himself.
He was very young. He was immature. His life had been blighted by his father's abuse. It is entirely unsurprising that he showed little regard for the complainant and used her to pleasure himself, using objects which if used by adults would be regarded as humiliating. A number of disturbing features in his background were carefully and diligently set out in a comprehensive report by Ms Assaf. They are not controversial. They require understanding and flexibility in how they are approached and synthesised in sentencing process.
The interplay of considerations in any sentencing exercise can be complex. Here they are intricate. There can be no automatic consequences from the presence or absence of particular factual circumstances:
"In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case in the light of the purposes to be served by the sentencing exercise"; Engert v R (1995) 84 A Crim R 67.
Had these matters come to light in 2002 or 2003, as they not being serious, indictable children's offences, it is possible, and in my view, probable, that they would have been dealt with in the Children's Court. Given the current age of the offender when these matters commenced I must sentence him as an adult recognising, however, that these offences occurred when he was a child.
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of the young people to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-twenties: Clarke-Jeffries v R [2019] NSWCCA 56; KT v R [2008] NSWCA 51; (2008) 182 A Crim R 571.
Those difficulties have been compounded by the delay. When sentencing a young 14 or 15 year old for sexual offences involving the penetration of an even younger child, those considerations require a court to ask three questions;
1. How did the child offender's youth impact on his offending?
2. Did it play any role in diminishing his responsibility?
3. Have the prosecution, taking into account section 6 of the Children (Criminal Proceedings) Act 1987 put forward any evidence to suggest rehabilitation should not be the paramount consideration of the sentencing process.
Here, the evidence requires that questions 1 and 2 be answered yes. Question 3 requires more nuance. That brings me to the question of delay; a matter that always requires sensitive consideration.
The offender is not now a child. A sentence which focuses solely on his rehabilitation so far as sex offences occur would ignore his history since then. He now must be dealt with as an adult and accept responsibly for his crimes as a child as an adult.
In some cases, a delay can enable a person to demonstrate progress towards rehabilitation; to only a very limited extent has that occurred here. Steven Young has offended many times in the past but it is important to note he has no history of any sexual offending. In some cases, it is said that a person is able to live in the community without the stigma of being outed and recognised as a sex offender and therefore gains no real benefit from the delay. Here, again more nuance is required.
Had this matter come to light earlier, both the complainant and the offender would have had their history of childhood trauma addressed much earlier. Here, a history of trauma has led to a cycle, so far as the offender is concerned, of crime and gaol. In more recent years his time in the community has been longer and he has demonstrated that for periods, particularly where he is in work and given strong family support, he can be relatively crime free.
I recognise, so far as the complainant is concerned, all forms of child maltreatment present significant risk for later physical and emotional wellbeing. Those considerations also apply to the offender. It is commonly noted that child sexual assault can lead to inappropriate, dysfunctional interpersonal relationships, feelings of betrayal, trust, powerlessness, guilt. There are longer term impacts of child sexual assault including post-traumatic stress disorder, adjustment and personality disorder, further offending, occupational underachievement, self-harm and suicidality.
There is a Victim Impact Statement before the Court. In it, the complainant sets out a history that reflects some of those matters. She was diagnosed with severe depression and anxiety; she has attempted to kill herself, she has little understanding of her emotions, she has suffered social anxiety; she has struggled with stable relationships and has major trust issues; she has problems sleeping and often wakes up screaming; she has used illegal substances to help her cope; she struggles with her eating and maintaining a healthy weight; she has not been able to settle. All those matters must be taken into account.
The offender has a similar history. This is not a case of making false equivalences, it is simply a matter of recognising that he, as a result of his upbringing suffers significant trauma, and has been profoundly affected by his childhood. That background has impacted on every stage of his life. It is highlighted in this case by the number of people associated with this family who have taken their own lives, and the evidence of the offender suicidality. It is not at all surprising that he and his victim both turned to the use of illicit drugs to dull the pain and help them cope with their past.
The offender's history of significant social disadvantage is demonstrated in the evidence here. It must and should be taken into account. He has a number of psychological problems; which would also mean that he is a poor candidate for a deterrent sentence. He has demonstrated, as I have said, some capacity to lead a normal community life but there is a regular cycle of self-destruction and self-sabotage; which Ms Assaf indicates has its genesis in his childhood.
At about the time of his arrest for these matters he came to the notice of the courts. Ms Assaf's report was before Girotto LCM when she sentenced him for a number of serious offences. She carefully structured a sentence to enable him to have a lengthy period supervised in the community on parole.
This sentence must be accumulated in part upon that sentence. And there must be a measure of independent punishment, that is, gaol time for those offences. The principle of totality applies. It is not necessary in this case to simply add one offence on the other; matters relevant to the structure of the sentence apply in both instances.
There are three matters for sentence here. There are two incidents. There must be some independent punishment for each matter. The process of accumulation must also take into account the context in which the three offences for sentence occurred. They were not isolated incidents.
I note that he has been in custody during the COVID pandemic since 11 April.
[2]
Submissions
I have the benefit of written submissions from Ms Bird Solicitor for the Director of Public Prosecutions and Mr Fraser. They have had a chance to speak to those submissions and we have discussed them this afternoon.
[3]
Synthesis
There must be custodial sentences indicated for each three offences to properly recognise the harm done to the victim. Mitigating factors will be given appropriate weight but there must be a penalty that has some proportionality to the gravity of each of the offences to vindicate the dignity of the victim and to express the community's disapproval of that offending. There can be no equivalence here, however, between a sentence that would be imposed upon an adult offender or even a child who did not suffer the deprivations this child did, but there must be custodial sentences imposed.
[4]
Orders
Synthesising all of those matters, and taking into account the 25% reduction for the plea of guilty, and the Form 1's, I indicate:
1. For the first count of sexual intercourse without consent, the sentence of one year and ten months.
2. For the second count of sexual intercourse - one year and ten months, and
3. For the attempt sexual intercourse, one year and six months.
I set an aggregate sentence of three years' imprisonment. It will date from 9 February 2021. Release to parole 8 August 2022; parole period of one year and six months, which represents a finding of special circumstances because of the need for the offender to get as much assistance as possible in dealing with his multiple traumas and to facilitate his rehabilitation into the community, and to recognise the accumulation on the magistrate's sentence.
To repeat non-parole period of one year, six months' to date from 9 February, expire 8 August 2022. Parole period of one year six months from 9 August 2022, the sentence will on expire 8 February 2024.
[5]
Amendments
15 August 2022 - [5] Amendment to the section - from s 88 to s 80AF
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Decision last updated: 15 August 2022