REGINA v JDB

IN THE COURT OF CRIMINAL APPEAL CCA 2005/92

MASON P BARR J JOHNSON J

1 MASON P: The applicant, who appeals against sentence imposed in the District Court, was born on 10 July 1989. He is now 15 years old. He was aged between 13 years and 5 months and 14 years and 2 months at the time of the offences. 2 The sentence was a non-parole period of 12 months imprisonment commencing on 10 August 2004 and expiring on 9 August 2005, to be served in a detention centre. The balance of the sentence is two years commencing on 10 August 2005 and expiring on 9 August 2007. The applicant was directed to be released to parole subject to the supervision of the Department of Juvenile Justice at the conclusion of the non-parole period and other appropriate conditions (see RS 26-7). 3 The applicant is the only child of parents who separated when he was about 13 months old. Both parents have since remarried. His mother formed her current relationship in about 1992 and there is a daughter of this union. The applicant's father also married in 1992 and there are three daughters to this union, the applicant's half-sisters. 4 The offences involve the oldest of those three daughters, who was aged 8 at the relevant time. 5 The applicant lived with his mother except at weekends when he would visit the home of his father and step-mother. 6 On 4 October 2003 the victim EB reported something to her mother. Within days she and the applicant were interviewed by the police. With one exception, the applicant admitted immediately the conduct alleged. He was charged on 7 October 2003. Upon his plea of guilty to all charges, he was committed to the District Court for sentence in relation to four offences and a Form 1 document that set out two additional offences. 7 Each of the six offences was a contravention of s66A of the Crimes Act 1900, namely having sexual intercourse with a person under 10 years. 8 Offences 1 and 2 occurred between 1 November 2002 and 25 December 2002. The applicant was playing hide and seek. The victim and the applicant were in a toilet in the house. The applicant locked the toilet door, pulled his pants down and told the victim to bend over and touch the floor. He inserted his penis into her anus three times. The complainant smelt a funny smell after the anal penetration. This particular incident represents count 1, which was charged as a continuing act. The applicant then turned the victim around and inserted his penis into her vagina twice. This is the subject of the second charge. 9 At a later time, between 1 June 2003 and 1 September 2003, there was another visit to the father's home. The applicant told the victim to go to the toilet and wait for him. She complied. Shortly after he entered the toilet, pulled the victim's pants down and told her to bend over and touch the floor. Once again he inserted his penis into her anus three times. He then turned the victim around and inserted his penis into her vagina twice. These were the third and fourth offences for which the applicant was committed for sentence. 10 The two Form 1 offences relate to events that occurred between 1 January 2003 and 1 September 2003. Again there was a game of hide and seek. The applicant followed the victim into a toilet in the house, locked the toilet door, pulled down the victim's pants and inserted his penis into her anus. 11 There were adults in the house at the relevant times. The applicant told the complainant not to tell anyone what was occurring between the two of them as they would get into "heaps and heaps" of trouble and the applicant would be kicked out of the house. 12 The information supplied by the young victim, when she first spoke to her mother and subsequently to the police, shows that she felt confused, guilty and betrayed by these acts of abuse by an older step-brother whom she had previously trusted. 13 On 7 October 2003 the applicant was interviewed by the police in the presence of his father. He made admissions in relation to five of the six acts. He confirmed that he locked the toilet door so that nobody could catch him doing what he was doing to his sister. He was aware that what he was doing was wrong and he realized this from the first occasion. 14 The sentencing judge correctly recorded that these offences committed over a period of time were deliberate acts of sexual abuse of a child in circumstances where the young person, notwithstanding his considerable youth, knew that what he was doing was wrong and was fearful of the consequences of being found out. 15 The pleas of guilty were entered at the first reasonable opportunity. The sentencing judge allowed a 25% discount based upon their utilitarian benefit, including the sparing of the victim of the ordeal of having to give evidence. 16 His Honour also accepted that the plea was a reflection of the young person's remorse for his conduct. This last feature is also remarked upon in the psychologists' reports tendered at the sentencing hearing. There are some indications, particularly in the initial interview by the police, of attempts by the applicant to block out the memory of the events the consequences of which he was coming to regret. There were also some early qualifications in the offender's recognition of the full impact of his offences upon the young victim of the abuse. To my mind both of these matters are reflections of the offender's immaturity and inexperience as to the impact of sexual abuse. The later psychologists' reports and the affidavit from the applicant tendered in this Court on the usual basis shows an appropriate development on both of these fronts. 17 I am quite satisfied that the applicant now appreciates the immediate and long-term impact of his offending and the damage it has done to his sister and trusting relationships within the family as a whole. 18 The sentencing was not and is not an easy exercise. Abuse of this nature involving such a young person and his sibling is fortunately rare in the experience of the Court. 19 As the law stood at the time of the first two offences, the maximum penalty was 20 years imprisonment. For the remaining offences it was 25 years. The sentencing judge was however informed by the prosecutor at trial that the maximum was 25 years for each offence. The impact of this misapprehension on the sentences imposed and upon the challenge to them in this Court is unclear. I have found it unnecessary to resolve this matter. 20 The District Court was required to deal with the applicant according to law because an offence under s66A of the Crimes Act is a "serious children's indictable offence". 21 Legislation dealing with standard non-parole periods found in Pt 4 Div 1A (ss54A-54D) of the Crimes (Sentencing Procedure) Act 1999 commenced operation on 1 February 2003. This also operated differentially on the matters before the court since it did not apply to offences committed before its commencement (see Schedule 2, cl 45(1)). This new regime did apply to the remaining offences, imposing a standard non-parole period of 15 years for a s66A offence. The general operation of this provision is outlined in R v Way (2004) 60 NSWLR 168. 22 These provisions are not adverted to on the face of the reasons, although there is a passing reference to a 15 year standard non-parole period in a hypothetical example given by the sentencing judge when he spoke directly to the offender explaining the sentence already imposed. The judge said he thought it unnecessary to apply Div 1A because of the plea of guilty (RS 29). This misunderstanding was not made the ground of appeal by either party in this Court. The appeal proceeded on the basis that the extreme youth of the applicant rendered the standard non-parole period of comparatively little gravitational force. I imply no criticism in this observation. 23 The learned sentencing judge set out the circumstances of the offences. 24 His Honour took full account of the complainant's Victim Impact Statement. The abuse greatly upset the complainant who still has disturbing dreams and occasional nightmares about it. There are however some encouraging signs of a lessening of her anxiety. She will doubtless bear the scars for a long time. 25 The judge was assisted by a detailed background report prepared by specialist counsellors of the sex offender program of the Department of Juvenile Justice. Extensive information was garnered about the social/developmental background of the applicant, his education, social competency, emotional regulation and psycho-sexual development. This report was prepared at a time when the applicant was on conditional bail awaiting sentencing in the District Court. It remains capable of application in this Court (cf Roos v Director of Public Prosecutions (1994) 34 NSWLR 254). 26 At the time of sentencing the applicant was residing with his paternal grandfather in a regional city near where the rest of his divided family lives. The grandfather swore an affidavit that was placed before this Court indicating his preparedness to have the applicant continue to reside with him when released from custody. The applicant was born in the vicinity of this regional city. His upbringing and schooling have also taken place there. 27 The separation of the applicant's parents was not amicable. They reported that it took approximately four years before the animosity "smoothed out". The applicant had been "pulled between them and at times utilised as a 'pawn'". Since he was about 8, the applicant spent periods living in both households. The parents themselves informed the counsellors that their parenting over the years had tended to be inconsistent, with punishments being rarely followed through. The applicant had become proficient in playing the two parents off against each other. 28 His situation as the only boy and the only child moving between the two households is very likely to have contributed to his anger and difficulty in anger control. Whether such source of anger contributed in any way to the particular offending is unknown. One of the psychologists adverts to a background of jealousy that is understandable, not that it justifies the offences in any way. 29 There were continuing behavioural problems including disruptive behaviour at school and frequent lying. 30 The applicant is of above average intelligence. His schooling has been disrupted to a degree by his disruptive behaviour. In 2004 he was in Year 9 at a Christian School in the regional city. That school has continued its pedagogical and pastoral responsibility for the offender and has, to its credit, indicated its willingness to receive him back upon his release from custody. 31 A good deal of the background report went beyond the matters required to be addressed by s25 of the Children (Criminal Proceedings) Act 1987. I imply no criticism. This was a matter in which the sentencing judge required as much assistance as possible in understanding the continuing impact of the offence upon the offender and his family, including of course the victim. 32 One matter that properly received considerable attention was exploration as to the reason for offending especially in the context of the risk of re-offending and the prospects of rehabilitation. 33 The abusive conduct was specific and repeated. It went beyond characterisation solely as a product of naughty curiosity. Yet there was (thankfully) no evidence of earlier offending in this or any other regard. The background report records no evidence of abusive sexual attitudes or behaviour (apart from that involving the complainant). 34 Those who interviewed the applicant found some difficulty stemming from his coyness in discussing the offending actions. This made it difficult to ascertain the level of his insight with respect to the behaviour and the degree to which he accepted responsibility for his actions. Nevertheless there is, as indicated, a clear sign of progression over time towards fuller understanding and fuller responsibility. The interviews obviously involved effective counselling as well as the mere recording of the subject's beliefs and attitudes. 35 The statutory background report dated 30 July 2004 was guarded in its risk assessment. It urged that the applicant continue to receive counselling that targeted his "general anti-social behaviour and entitlement belief system". Counselling for his primary carers was also recommended. 36 In his recent affidavit the applicant states: I have a very supportive family. I speak to them on the phone every night. My Mum, Dad and Step-Mother … also come to visit me once every couple of weeks or whenever they can get away. They come all the way from … to see me.

This is an encouraging sign that the whole family is continuing to recognise their responsibility for the applicant's ongoing welfare. 37 The key recommendation of the background report was that there should be sentencing by way of a probation order subject to appropriate conditions including ongoing supervision and sex offender counselling through the Department of Juvenile Justice. 38 Two psychological assessment reports were tendered for the defence. These on the whole presented a slightly more favourable position than the statutory background report. Each report documented genuine remorse, a growing sense of responsibility stemming from various matters including the impact of the legal process that had been set in train. Both of these reports also recommended against a custodial sentence. 39 The primary judge was nevertheless of the view that (RS10): … The seriousness of the conduct of the young person is so great and the need in my opinion to denounce the young person and to ensure there is some punishment for his conduct is so great that I could not accord with those recommendations that have been made in these reports.

See also RS 7. 40 The judge quoted the reports extensively, much more so than the summary I have given. Having done so, he restated his conclusion that "these matters are too serious to be outweighed in their seriousness by considerations such as the remorse expressed by the young person" (RS18). 41 Since each offence was a serious indictable offence the judge was required to deal with the applicant according to law. He was thus unable to make an order pursuant to s33 of the Children (Criminal Proceedings) Act 1987 that the applicant be released on probation. He was not, however, obliged in law to impose a custodial sentence. Nevertheless, he signalled his intention to sentence to a term of imprisonment with a non-parole period, with a direction that the applicant serve the term in a detention centre. 42 Relevant to the structure of the sentence, there were what I regard as key findings in his Honour's conclusions that the applicant was safe to remain within the community (RS19) and that he was a person of previous good character and with good prospects of rehabilitation (RS23). The judge also accepted that the applicant had shown remorse for the offence and that because of his age he may not have been fully aware of the consequences for his victim of his conduct. 43 A critical portion of the reasons stated (RS23, emphasis added): In my view it is important primarily in this matter to ensure that the young offender is adequately punished for the offence and to prevent him from committing further offences by deterring him. The need to protect the community from the offender is not great in this matter and I trust that the non-parole period that I fix promotes his rehabilitation. However, the young offender has to be made accountable for his actions and he must understand the harm that he has done to the victim and I believe no other order can be made to reinforce these matters given the other material before me. In relation to s21A upon which I was addressed by the learned Crown Prosecutor, it is quite clear that the primary aggravating matter in these offences were that the offender sexually assaulted a vulnerable victim . It is not an abuse of a position of trust in the way in which a parent could be claimed to have breached a position of trust. It is clear, however, that the young child would have trusted the offender when agreeing, at some early stage, to remain in the toilet with him. The offender did not have, in any meaningful way, any responsibility for the care of the victim. I am sentencing the offender for a multiple series of criminal acts and there was an element of planning in the offences committed by the offender. I accept as an aggravating factor that the emotional harm and injury to the victim could be described as substantial.

44 This passage reveals the complexity of the sentencing exercise. It also explains why counsel for the applicant in this Court recognised that it was open to the sentencing judge to find that some custodial term was warranted. 45 According to Mr Smith's most helpful submissions, the second paragraph of the passage just quoted discloses a specific error in that the judge viewed as a "primary aggravating matter" the fact that the complainant was "a vulnerable victim". It is submitted that this remark betrayed error in that the concluding portion of s21A(2) of the Crimes (Sentencing Procedure) Act 1999 enjoins the court not to have additional regard to any aggravating factor in sentencing if it is an element of the offence. In the present case the age of the victim of the sexual assault is such an element. 46 The Crown argued that the balance of the second paragraph reveals that the judge had regard to more than just the age of the victim. In truth, the vulnerability stemmed from a combination of her age and her relationship with the offender. I strongly doubt that this does justice to his Honour's expressed reasoning. I read everything but the first sentence of the second paragraph as addressing and ultimately rejecting the argument that there was an abuse of "a position of trust or authority in relation to the victim", which is mentioned as a separate aggravating factor in s21A(2)(k). I therefore conclude that there is a particular error disclosed in the reference to "a vulnerable victim". But if that error stood alone I would not be persuaded that a sentence other than that imposed by the primary judge was "warranted in law" ( cf Criminal Appeal Act 1912, s6(3)). 47 My greater concern lies with the earlier paragraph that gives express primacy to deterrence and relative insignificance to rehabilitation, which is mentioned almost as an aside in the phrase "I trust that the non-parole period that I fix promotes his rehabilitation". The primacy of deterrence and denunciation is also observable in earlier passages at RS 7 and 10 that have already been cited. 48 The impact of these offences on the victim and indirectly the family is significant and inescapable. So too is the objective seriousness of the offences bearing in mind the element of planning and the threats. The offender knew that he was doing wrong. All of these matters must be acknowledged. But so too must the very young age of the offender. His immaturity undoubtedly contributed to his lack of insight into the impact of his wholly selfish action. It was also a factor which, coupled with his dysfunctional family situation, contributed to a lessening of the constraints against wrongdoing that hopefully attend a well-formed moral and social conscience. 49 Mr Tyrer, a psychologist who provided a report for the applicant, expressed his conclusion in the following terms: I believe that J would benefit from a clear, concrete reminder of the seriousness of the situation, although I am confident that J is safe to continue dealing with these issues from within the community. He has worked hard during our counselling sessions and he and I are both happy to continue this supportive arrangement. Another option would be for this work to be continued through the Office of Juvenile Justice. I do not believe that the best interests of the community or J require a custodial sentence. The process of maturation for J is clearly continuing, with issues that need addressing by his family. However, he has shown remorse, responsibility and appropriate planning for the future sufficient for me to recommend to the Court the continuation of community based management and support. 50 The sentencing judge was not bound to accept this opinion. He does however appear to have taken up the first half of the opening sentence of Mr Tyrer's concluding opinion in a sense contrary to that intended by the psychologist. 51 It was open for his Honour to do so, as the applicant concedes in this Court. The sentence is however appealably excessive, in my opinion, because of the matters to which I have referred and because of the duration of the custodial sentence which of necessity has had to be served by the applicant in Western Sydney some considerable distance away from the place of his family support. 52 His Honour determined to administer a "sharp shock", but it was in all of the circumstances too long a one, in my opinion. For an offender of this age, facing his first time in custody, extreme youth should have meant that rehabilitation and not deterrence was the primary focus of attention (see generally GDP (1991) 53 A Crim R 112). 53 The delay between admission of the offences and the sentencing was too long, even allowing for the need to get the various assessments. When, after various interruptions, the matter was addressed in mid August 2004 the sentence imposed bore unnecessarily harshly upon the offender in that it disrupted his education over two school years. In light of s6(c) of the Children (Criminal Proceedings) Act and the reports, it would, in my opinion, have been more appropriate for full time custodial sentence to have ceased before the start of the academic year in 2005. The orders that I propose are designed to address this matter in particular. 54 Hopefully the applicant will continue to draw positive responses from the strong legal denunciation of his conduct and the ongoing supervision that forms part of the varied sentence. 55 The reasons for special circumstances are as stated by the primary judge. The age of the offender, the need for significant counselling as he attempts to reintegrate himself into society and his family amply justify departure from the statutory norm. 56 The form of the amended sentences reflects the fact that the first two offences predated the repeal of the former s44 of the Crimes (Sentencing Procedure) Act. 57 I propose the following orders:

3. Quash the sentences imposed in the District Court on 12 August 2004.

4. In lieu thereof: (i) On the first two charges, sentence the appellant to a term of imprisonment for 3 years, commencing on 10 August 2004 and ending on 9 August 2007, to be served in a detention centre; set a non-parole period for the sentence expiring on 24 March 2005; (ii) On charges three and four, sentence the appellant to a non-parole period commencing on 10 August 2004 and expiring on 24 March 2005 with the balance of a three year sentence expiring on 9 August 2007; (iii) At the conclusion of the non-parole period the appellant is to be released to parole subject to the supervision of the Department of Juvenile Justice and subject to the parole conditions set by Norrish DCJ on 12 August 2004; (iv) In sentencing the appellant upon the first charge, I have taken into account the two matters contained on the Form 1. 58 BARR J: I agree with Mason P. 59 JOHNSON J: I agree with Mason P. **********

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