Regina v KBM

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0217 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60101/04

TOBIAS JA KIRBY J BELL J

Monday 3 May 2004 REGINA v K.B.M. Judgment 1 TOBIAS AJ: I agree with Kirby J. 2 KIRBY J: "KBM" (the applicant) is, at law, a child. He was born on 29 March 1988. He pleaded guilty to sexual intercourse with a person under the age of ten years, an offence under s66A of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. The offence was committed on 4 March 2002. The victim was nine years old. KBM was thirteen years old, it being approximately three weeks before his fourteenth birthday. On 5 December 2003, Puckeridge DCJ sentenced KBM to imprisonment for a period of three years, to be served in a juvenile detention centre. His Honour fixed a non parole period of twelve months to date from 5 December 2003 and to expire 4 December 2004. KBM appeals against that sentence, alleging that it was manifestly excessive.

The facts. 3 The circumstances in which the offence was committed are not in doubt. KBM and the victim attended the same school. The victim was in the habit of walking home from school. She lived with her mother in a caravan park which was close by. To get to the caravan park, she was required to make a short journey across a playing field. 4 The victim finished school on 4 March 2002 at 3.30 pm. She began walking home. She became aware that she was being followed. She looked behind her and recognised the appellant as a boy from school. She had met him at the home of a woman who was a friend of her mother. She knew his nickname. As she crossed the field he caught up with her. He grabbed her from behind, placing his hand over her mouth to prevent her from screaming. He dragged her behind a brick wall. The statement of facts, which formed part of the material handed by agreement to the sentencing Judge, included the following summary of what then occurred: "He pushed her to her knees, removed his penis from his shorts, and forced it into the mouth of [the victim]. [The victim], although trying to resist him from doing this, was unable to do so. The young person forced [the victim] onto her back and pulled her skirt around her waist. As she was resisting, the young person told her that if she did so, he would break her fingers. He also pulled her knickers down around her legs, and straddled her with his legs on either side of her. The young person attempted to force his penis into [the victim's] mouth as she was pinned to the ground." 5 Luckily the victim's mother was keeping a watch for her daughter. From the caravan park she had a view across the park. When she did not see her daughter shortly after 3.30 pm she decided to investigate. She set out for the school. As she walked across the park she heard her daughter's screams. She went behind the brick wall and saw KBM on top of her daughter with his penis in her mouth. She yelled and the young man fled. 6 The police and the ambulance were then summoned. The victim was taken to a local hospital and examined by a paediatrician. She provided a history which the paediatrician summarised in these words: "He attempted oral penetration but did not touch her genitals or attempt penile penetration ..." 7 The doctor noted a number of abrasions to the victim's nose, to her back and near her left breast. She had scratches to the right lower arm. There were other complaints of pain, although no suggestion of significant or lasting physical injury. 8 The victim was able to tell the police her assailant's nickname. He was arrested the following day, although allowed to remain at home. He agreed to participate in an identification parade. A number of parades were arranged on 21 March 2001. He was separately identified by both the victim and her mother. 9 A search warrant was executed upon KBM's home. Certain clothing was seized. It was sent for examination and DNA analysis. The report of that analysis was provided on 9 January 2003. It included an examination of the board shorts of KBM. That examination revealed both the DNA of KBM and that of the victim. 10 The effect upon the victim has been significant. It was obviously a terrifying experience. She has lost confidence and her sense of independence.

The subjective case. 11 KBM is his mother's fourth child. His three siblings are somewhat older. They share the same father, whereas KBM has a different father, whom he has not met. His father is aboriginal. KBM has met his paternal grandparents and, to a degree, identifies with his aboriginal heritage. He has expressed the wish to meet his father. By any standards his childhood has been deprived. He describes it as having been unhappy. His mother lives alone. She is poor and has suffered from depression. They have lived a nomadic existence which has necessitated frequent changes of school. 12 At the age of eleven KBM was given into the care of a trusted friend, a man aged about 50. He remained with that person for about three months. During that time he was sexually assaulted, both orally and anally. To add to the torment, he was shown forged letters which suggested that his family did not want him home. He felt frightened of this man. Ultimately he disclosed to his mother and sister his fears and described his treatment. He was then rescued. The man was charged. He later committed suicide. 13 At the age of thirteen, that is in the year before this offence, KBM began smoking marijuana. Sometimes he smoked every day. He also experimented briefly with LSD. Approximately seven months before the offence he attempted to hang himself. He was found by his sister, although he said that even had he not been found he would not have gone through with it. At the time he was in conflict with his mother. 14 After the offence the family, including KBM's mother, recognised that his interests required a more stable environment than his mother could provide, by reason of her mental health. His sister then looked after him. She is 22 years old and he did well under her care. He attended school regularly, completing assignments that had been given to him. His academic progress to that point had not been good. 15 The Children (Criminal Proceedings) Act 1987 requires that a child (defined as "a person under the age of eighteen years") who is brought before the Court must be examined by a counsellor from the Department of Juvenile Justice, who then reports to the Court (s25(2)). KBM was examined by Ms Jeannette Liva. A report was prepared. Ms Liva noted that KBM had been diagnosed with ADD, but was not on medication. She recorded the following observation made by his school principal in the months before the offence: "[The principal] was very supportive in her assessment of [KBM]. [He] would occasionally spend some time during school holidays at [the principal's] house. [She] observed [KBM's] escalating overt sexualised behaviour at school and became involved with the school counsellor and [KBM's mother] in efforts to gain a referral for [KBM] to attend Rivendell. It was hoped [KBM] would receive intensive counselling to address his sexualised behaviour and thinking errors. [The principal] attended case conferences that included an Adolescent Psychologist who was completing the assessment. The referral did not happen and this was the cause of much frustration for everyone involved. [The principal] reports that herself and the school counsellor assessed [KBM] as being severely emotionally disturbed. She states [KBM] displayed bizarre behaviour in the classroom and gave an example of a time when [KBM] deliberately tipped red paint all over himself." 16 Ms Liva was involved in the Sex Offenders Programme of the Department of Juvenile Justice. She recommended that KBM be given a supervised community order, subject to the following: "1. To accept the supervision of the Department of Juvenile Justice. 2. To attend and fully participate in counselling as provided or approved by the Sex Offender Program, Department of Juvenile Justice. 3. To have no unsupervised contact with children under the age of 12. 4. Not to change residence without the prior approval of the Department of Juvenile Justice." 17 Ms Liva gave evidence before the sentencing Judge. KBM had expressed deep shame and remorse concerning the offence. He had empathy for his victim, which was a positive sign in terms of his rehabilitation. Almost two years had elapsed since the offence. There had been no further reports of overt sexual behaviour. Were he to remain with his sister, Ms Liva did not believe he presented "a high risk to the community, provided he continued to have a stable and secure environment". 18 In cross examination, Ms Liva was asked to comment upon the desirability or otherwise of a custodial sentence. She said this: (T9) "Q. Now if he was to be sentenced to serve time in a detention centre, would that be in the community's or his best interests in your opinion? A. It would be in no one's best interests. Research shows that incarceration can increase the risk for recidivism rather than minimise it. To minimise any risk to the community would be for him to be in the community receiving intensive therapeutic intervention. HIS HONOUR: Q. I'm sorry, I didn't hear that? A. The best possible thing for the community is for him to be - have a supervised community based order and receive intensive therapeutic intervention." 19 There was conflicting evidence concerning KBM's intellectual capacity. He was referred to a psychologist, Dr Hayes. Dr Hayes carried out a number of tests. They revealed borderline intellectual disability and some deficits in complex problem solving ability. There was evidence of moderate anxiety and depression. Dr Hayes thought that KBM would benefit from extensive counselling. On the other hand, the actor, Ms Rachel Ward, who worked with KBM, found him to be "bright". In the stable environment of his sister, his academic work had markedly improved.

The sentencing remarks. 20 In respect of certain offences, a young offender may be dealt with under a less punitive regime established by the Children (Criminal Proceedings) Act 1987. However, where a child has committed "a serious children's indictable offence" (as defined), there is an obligation to deal with the offender "according to law" (s17). The principles under the Crimes (Sentencing Procedure) Act 1999 then apply. 21 Here, the offence under s66A of the Crimes Act 1900 has been prescribed by regulation as "a serious children's indictable offence" within s17 of the Children (Criminal Proceedings) Act. As such, it had to be dealt with according to law. The maximum penalty for that offence is 25 years imprisonment. 22 His Honour, having described the offence and the subjective details of KBM's life, remarked that many of the circumstances of the case were tragic for both the victim and the offender. He then said this: (p7) "I, of course, take all matters referred to in the report of Susan Hayes, and the counsellor, into account. They are certainly mitigating factors, but I cannot remove from my consideration, the gravity of the offence on a child under ten years of age, and the effect, and according to her statement, the continuing effect on that child." 23 His Honour then considered the alternatives to a custodial sentence, as advocated by the counsellor, Ms Liva. He said this: (p 9/10) "That evidence has led me to carefully consider the preferred option as to whether or not it would be better for the offender to remain with his elder sister, and to receive supervision from the Juvenile Justice Department. In particular, supervision and counselling under the direction of Jeanette Liva. With the best will that I have to the offender, however, I cannot escape from the gravity of the offence that was committed on a young child under the age of ten years. But for the plea of guilty, which the accused entered at Lismore Court on 22 May 2003, and taking into account all the circumstances as referred to in s21A of the Crimes (Sentencing Procedure) Act, I would consider that the minimum non parole period would have to be a period of custody of sixteen months. I consider that the plea was entered at the earliest possible time, and that the offender is entitled to a full discount of 25 percent. That being the situation, the term of imprisonment which I impose, that is the minimum term of imprisonment that I impose, will be a period of twelve months, which period of imprisonment is to commence from today's date, 5 December 2003 and to expire on 4 December 2004." 24 His Honour ordered that the term be served in a Juvenile Detention Centre. Thereafter his Honour said this: (p11) "The normal additional term is one-third of the sentence. There are, in this case, ample special circumstances to indicate that it would be appropriate that that additional sentence be longer. It is to be the situation that on the 4 December 2004, the offender is to be released on parole and subject to the supervision of the Juvenile Justice Department and to obey all directions of that department, particularly in relation to sexual counselling and anger and drug abuse." 25 His Honour indicated that he had taken into account s6 of the Children (Criminal Proceedings) Act 1987, which set out the principles relating to the exercise of criminal justice in respect of children. The grounds of appeal. 26 The application for leave to appeal identified eight grounds. The grounds are not stated in the form of propositions, but rather are discussed in counsel's written submissions. Paraphrasing the complaints made by counsel in respect to the sentence, they are as follows: Ground 1: That the sentence was manifestly excessive. Ground 2: This his Honour sentenced according to the current sentencing regime introduced on 1 February 2003, whereas the offence occurred in 2002. His Honour was required to sentence in accordance with the previous regime. Ground 3: His Honour failed to take account of the fact that the offence was committed by a young person upon another young person. Ground 4: His Honour failed to give weight to the applicant's plea of guilty. Ground 5: His Honour failed to give sufficient weight to the views of Ms Liva, the specialist counsellor. Ground 6: His Honour undervalued the appellant's prospects of rehabilitation and its relevance to the sentence to be imposed. Ground 7: His Honour overvalued the gravity of the offence. Ground 8: His Honour failed to give weight to the appellant's aboriginality.

Error Acknowledged. 27 It is, however, unnecessary to deal with each ground. The Crown drew attention to a recent decision of this Court, R v Mako [2004] NSWCCA 90 which dealt with the same issue as raised by ground 2, concerning the changes to s44 of the Crimes (Sentencing Procedure) Act 1999, by the amending Act of 2002 (Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002). The amending Act, as the name implies, introduced "standard non parole periods" for certain offences committed after 1 February 2003. The standard non parole period was to be imposed unless the court determined (with reasons) that a longer or shorter period was appropriate. To fit in with that requirement, s44 was amended so as to read as follows: " s44 Court to set non-parole period (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 28 Before the amendment, s44 was, relevantly, in the following terms: " S44 Court to set term of sentence and non-parole period (1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision." 29 KBM committed the offence on 4 March 2002. The offence was, as mentioned, a "serious children's indictable offence" as defined by s3 of the Children (Criminal Proceedings) Act 1987. His Honour was obliged to deal with KBM "according to law" (s17). Although sentenced on 5 December 2003, that is after the amending Act, it had no application. It only applied to offences committed after 1 February 2003. His Honour, therefore, was obliged to sentence according to s44 in its previous form. 30 The terms of the sentence made it clear that his Honour applied the new regime. The Court in R v Mako (supra) determined that to be an error. The Crown therefore conceded error and that it was open to this Court to intervene if it believed that a sentence other than that imposed was warranted in law (s6(3) Criminal Appeal Act 1912).

Is another sentence warranted? 31 The offence was plainly serious. The effects upon the victim were not likely to be short lived. Although the offender had to be dealt with "according to law" that did not require that he should be dealt with as though he were an adult. The principles set out in the Children (Criminal Proceedings) Act 1987 relating to the administration of criminal justice, in the context of a child, had application (R v WRK (1993) 32 NSWLR 447, per Hunt CJ at CL at 449). The Act provides as follows:

" s6 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." 32 Commenting upon these principles Mathews J (with whom Gleeson CJ and Samuels JA agreed) in R v GDP (1991) 53 A Crim R 112, said this: (at 116) "Some of these guidelines consist of sentiments and admonitions which are so general as to be of little assistance in the sentencing of young offenders. However due regard must be paid to subss (c) and (d), both of which would favour a non-custodial penalty being imposed on the present applicant." 33 That was a case involving a series of offences, all serious. The offender was 15 years old when sentenced. He had pleaded guilty to two counts of maliciously destroying or damaging property. He and a number of others had broken into a factory at Parramatta. Once inside, they had endeavoured to open a safe, using a power drill. They were unsuccessful. They had ransacked the premises, and then set them on fire. Damage totalling $550,000 was caused. 34 Some of the group, including GDP, thereafter went by train to Seven Hills. They broke into another factory. Again they ransacked and vandalised the premises, before setting the premises on fire. Damage of approximately $1 million was caused, although the fire was said to be the consequence of actions by a co-offender rather than GDP. The sentencing Judge imposed a sentence on GDP of 12 months incarceration in a juvenile detention centre, with supervision for a further period of 12 months. The offender appealed, asserting that the sentence was excessive. 35 On appeal, the Court emphasised the importance of rehabilitation. In R v Smith [1964] Crim LR 70, the Court said this: "In the case of a young offender there can rarely be any conflict between his interest and the public's. The public have no greater interest than that he should become a good citizen." 36 Adopting these remarks, Yeldham J in Wilcox (Supreme Court (NSW), unreported, 15.8.79) said this: "... 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." 37 Citing these cases and applying these principles, Mathews J said this: (at 116) "Returning then, to the case of the present applicant. Had it been an adult who had committed these offences, then the principles of retribution and, more importantly, general deterrence, would have demanded a custodial sentence of considerable length. But rehabilitation must be the primary aim in relation to an offender as young as this applicant. The evidence indicates that he has already rehabilitated himself to a substantial degree. He has now commenced Year 12, and thus faces the Higher School Certificate later this year. He is performing well in his studies, and is an outstanding sportsman. It would, on all accounts, be positively damaging to his rehabilitative prospects to remove him from this environment and return him to custody." 38 The Court ordered the offender's immediate release on probation. 39 As an offender increases in age and approaches adulthood it may be appropriate, depending upon the nature of the crime, to strike a different balance between rehabilitation, deterrence and denunciation. In R v Pham (1991) 55 A Crim R 128, Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) said this, in the context of one offender who was 17 and another who was 19: (at 135) "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes." 40 Here, the offender was very young indeed. He was approaching 14 years. His immaturity was relevant to the offence in a number of ways. He had failed to exercise self control. He was bound to be found out. The person he attacked was someone who went to the same school, who knew him. 41 In determining whether another sentence was warranted and whether this Court should intervene, the question becomes what is most likely to assist in KBM's rehabilitation, which is not to say that deterrence and denunciation are completely irrelevant. 42 The Juvenile Justice counsellor, Ms Liva, was in no doubt that KBM should remain with his sister, attending at the local High School where he was making good progress. In the passage set out above, she made it plain that she thought incarceration would impede his rehabilitation. She took that view for a number of reasons. First, research demonstrated that incarceration of youthful offenders increased the risk of recidivism. Secondly, KBM needed counselling and therapy, which is simply not available in a juvenile detention centre. In her evidence, she described what she believed KBM needed in these words: (T9) "Q. What do you anticipate you could do for [KBM] over the period? A. The department would provide weekly sessions, weekly one hour sessions with [KBM] initially, and that would, depending on [KBM's] level of participation, that would gradually ease off. We would be looking at a period of two years."

When cross examined by the Crown, Ms Liva said this: (T11) "Q. But it is the case that in the setting of a detention centre for juveniles, there is facilities for behavioural therapy, isn't there? A. Very limited. The psychologists that work in the detention centre have an incredibly high workload, and they're usually, if you talk to them, they're usually fire fighting. They don't have a lot of time to put into interventions." 43 Thirdly, it is likely that KBM will at some point be transferred to a centre with older boys, known as "Acmena". Ms Liva identified the likely consequences of that transfer as follows: (T12) "Q. You've given some evidence about the position with respect to [KBM] residing with his family, and you've made references to the need for a stable consistent environment? A. Correct. Q. That's something that the system of detention centres for juveniles also aims to achieve isn't it? A. It is. The peers that he would be - one of his major problems is his lack of peer relationships. The peer relationships that he could build within Acmena would not be what we would deem appropriate." 44 I am persuaded that a different sentence is warranted. The Court should intervene and resentence. The Court was furnished with material describing KBM's position since he was sentenced. On 16 December 2003 (a matter of weeks after the sentence was passed), Ms Liva furnished a further report. The report warned of possible victimisation in a detention centre. Ms Levi also said this: "[KBM] demonstrates symptoms of Post Traumatic Stress Disorder, these symptoms could be exacerbated by the fear of further abuse within detention centres." 45 That was, of course, a reference to the sexual abuse suffered by KBM at the age of eleven years (supra para 11) . Ms Levi repeated in her further report the substance of what she had said to the Court, namely: "[KBM's] sister, T, has undertaken to provide a stable home life, provide supervision and ensure that [KBM] maintains a high level of attendance at school. This is in contrast to his transient background and an essential component of future risk reduction for [KBM]." 46 Unfortunately it appears that Ms Levi's prediction of harassment has proved accurate. A report of 8 April 2004, prepared by the centre where KBM has been held, included the following: "On 5.12.03 [KBM] was admitted to Reiby JJC. He was A classified due to the severity of his offence. He has now been reclassified to B status. Since his admission he has not presented as a management problem. He has not to date received a minor misbehaviour and is on the highest level within the incentive scheme. Although [KBM] is compliant and able to relate well to staff, he has difficulty establishing friendships with his peers. [KBM] is a young man who is not interested in the traditional male adolescent activities. He stands out as different from the main population in custody. He has been the victim of harassment and one serious incident on 15.1.04 when he was taken hostage by another detainee. Although he has learnt coping strategies to better manage within a custody environment he still suffers anxiety attacks. The frequency and intensity of these attacks are reducing. [KBM] has been the victim of harassment and trauma both in custody and in the community and he strongly identifies in the victim role." 47 The report, however, was not entirely bleak. It also included these words, which are important to KBM's prospects of rehabilitation: "[KBM] is currently completing his year 10 through distance education. He has demonstrated the ability and application to achieve his School Certificate. He is also enrolled in TAFE Textiles and hospitality course." 48 It is apparent from the report that, in terms of the juvenile justice system, KBM is at the cross roads. He has turned sixteen years. He is about to be transferred to Acmena. 49 However, in my view KBM's rehabilitation is best served by his immediate release into the custody of his sister so that he can be supervised thereafter by the Department of Juvenile Justice in accordance with the recommendation of Ms Levi in her report.

Order 50 The order I propose therefore is as follows:

3. The sentence of Puckeridge DCJ of 5 December 2003 is varied in respect of the non parole period which is to date from 5 December 2003 until today, 3 May 2004. KBM is to be released forthwith into the custody of his sister, Teboni, and to be subject to her supervision and that of the Department of Juvenile Justice, including the sexual and other counselling recommended by the Department in its report of 5 December 2003, such supervision to continue until 4 December 2006, being the expiration of the sentence. 51 BELL J: I agree with Kirby J. **********

Last Modified: 05/06/2004 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.