Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
27 There is no reference to the section or its terms in the sentencing remarks but such a failure does not itself amount to an error of law: R v MHH [2001] NSWCCA 161. The section contains a statement of principles that before the enactment of the provision were to be found generally in decided cases and under the common law when sentencing young offenders: R v SDM [2001] NSWCCA 158. Without seeking to detract from their importance, they are hardly controversial nor did they have such peculiar or particular relevance to the sentencing exercise before her Honour that the failure to refer to them might have made a significant difference to the ultimate sentence to be imposed upon the applicant. Counsel who appeared for the applicant before her Honour recognised that the most favourable disposition was a control order under s 33(2)(g) and so it was taken for granted in the proceedings before her Honour that the applicant was going to spend some period in custody. This may perhaps account for the fact that there was no reference made to s 6 during the course of the addresses. There was never any suggestion by her Honour that the applicant was not going to require assistance and guidance, quite the contrary. Even if it is assumed that her Honour did not specifically turn her mind to the terms of s 6 because neither she nor counsel referred to them, I cannot see how that failure could have affected her Honour's determination of the appropriate sentence.
28 In any event the application of s 6 depends upon the nature of the offence charged as well as upon the age and circumstances of the offender: R v Voss [2003] NSWCCA 182. Less effect can be given to the principles in the section where the offence is one of substantial seriousness and where the offender acted as an adult. In my opinion the principles in s 6 had less of a role to play in the determination of the sentence, notwithstanding the age of the applicant, by reason of the seriousness of the offence and his attitude to the offending.
29 It was submitted under this ground that the Judge failed to adequately take into account the applicant's "immaturity and his intellectual deficits". Such a failure, if it occurred, would have as much to do with a failure to apply normal sentencing principles as with a failure to take into account the principles in s 6. The argument is really embraced in the assertion in ground one that the sentence was manifestly excessive because the argument is really that her Honour must not have given sufficient weight to this particular matter because of the length of the sentence imposed. However, I can see little significance in the present case that the applicant was as a result of psychological testing found to have marked deficiencies in his intellectual or verbal skills.
30 The simple fact is that the applicant determined to sexually assault the complainant even though he knew she was not consenting and at a time when she was being sexually molested by his companion. The difficulty in the task that confronted the sentencing judge was that, although the applicant was a child, he had committed a serious offence, he had shown no genuine remorse and, because of his attitude to women, he was at real risk of re-offending. I do not understand how the applicant's intellectual deficits could have been given much significance in the determination of the appropriate sentence in this particular case. There was no suggestion that the applicant did not have a full appreciation of what he had done because of his poor intellectual functioning. His apparent failure to appreciate the moral and criminal significance of his conduct had nothing at all to do with any defect in his intellectual abilities. His intellectual disabilities did not otherwise appear to affect adversely his ability to function appropriately in the community. Of more relevance was the fact that his intellectual deficits may have made effective counselling more difficult because of his trouble in understanding what is put to him and expressing his thoughts on complex issues. The psychologist reported that his impulse control was poor, but this was hardly a finding that gave confidence to his prospects of successful rehabilitation.
31 Although counsel for the applicant relied heavily upon his immaturity arising from his age and otherwise, this was not in my view an offence arising from the applicant's immaturity generally or in particular in respect of his attitude to women. This is notwithstanding that the Juvenile Justice officer acknowledged that the applicant might have been immature in many of his attitudes and beliefs about the needs and rights of others. But his attitude to women, and non-Moslem women in particular, does not appear to me to be a symptom of his immaturity. The immaturity of the applicant had little relevance, in my view, to an assessment of the proper punishment for the offence or his rehabilitation in respect of his attitude to women and the risk of re-offending that arose from that attitude.
32 It is asserted that the applicant's rehabilitation would have been best conducted in the community. Reliance was placed upon references before the Judge as to the applicant's general conduct and his efforts at obtaining and maintaining employment. But the applicant's rehabilitation was more concerned with his attitude to women than his general attitude to the community. This aspect of his functioning was to be addressed by professional help through sex offender courses, anger management and general counselling. Of course I do not intend not to suggest that he had to receive a longer sentence in order to address his rehabilitation and there is no suggestion in her Honour's remarks that she approached the sentencing task in this way.
33 Again these complaints really have little to do with whether the Judge failed to take into account the principles in s 6 but rather assert that the sentence imposed was so excessive that it indicates that her Honour was in error in the way she sought to address the various purposes of sentencing in this particular case taking into account the seriousness of the offence committed, the likelihood of re-offending and the fact that the applicant was aged 15 at the time of the offending.
34 Counsel for the applicant raised during oral submissions, although not in the written submissions filed, a complaint that her Honour erred in failing to take into account that, having regard to the offence as amended and to which the applicant pleaded guilty, the applicant would have been dealt with in the Children's Court and not committed to trial in the District Court because of his age. The submission was that in the experience of counsel an offence falling under s 61J(d) would inevitably have been dealt with in the Children's Court regardless of the seriousness of the actual facts of the offending having regard to the fact that the applicant was aged 15 at the time of offending. If this be correct, then it seems to me with respect, that those who would be responsible for making that decision are failing to take into account the provisions of s 18(1A) of the Act.
35 That section requires a court, when determining whether to proceed with the offender at law or under Division 4 of Part 3, to take into account, amongst other things, both "the seriousness of the indictable offence" and "the nature of the indictable offence" as well as "the age and maturity of the person at the time of the offence and at the time of sentencing". A decision that any particular indictable offence, "not being a serious children's indictable offence'' is to be dealt with in the Children's Court simply because of the age of the offender would be a breach of the mandatory requirement imposed by the Act to consider all the matters set out in the section when determining how the offender is to be dealt for the offence.
36 In my view this particular offence was so objectively serious that a proper application of s 18(1A) would have led to only one possible outcome: despite the applicant's age, he was to be dealt with at law. As there was no proper basis for the applicant to have been dealt with in the Children's Court, there was no basis for her Honour to take into account what sentence might have been imposed in the Children's Court had he been dealt with in that jurisdiction.
37 Before dealing with the general complaint that the sentence was manifestly excessive, I should address the fourth ground of appeal that asserts that her Honour failed to give the applicant sufficient credit for his plea of guilty and offer of assistance. Her Honour stated: