Regina v KLH

LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0193 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

• 9 - IN THE COURT OF CRIMINAL APPEAL 60187/04

GROVE J SIMPSON J SHAW J

Monday 13 September 2004 REGINA v KLH Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Taylor DCJ on 17 October 2003. Following trial in Goulburn District Court the applicant was convicted on three counts of sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900. The offences occurred between 4 May 2000 and 20 December 2000. The applicant was acquitted on a count charging aggravated indecent assault alleged to have occurred 27 January 2001. 2 The applicant was born on 28 January 1987 and was therefore aged thirteen years when the offences occurred. 3 His Honour structured the sentences by imposing two years imprisonment commencing on 17 October 2003 with a non parole period of one year expiring on 16 October 2004 on count 3; two years imprisonment commencing on 17 April 2004 with a non parole period of one year expiring on 16 April 2005 on count 1 and four years six months imprisonment commencing on 17 October 2004 with a non parole period of two years expiring on 16 October 2006 on count 2. The lastmentioned date was specified as the earliest date of eligibility for release to parole. Pursuant to the Children (Sentencing Procedure) Act 1987 it was directed that the applicant serve the sentence in a juvenile detention centre. 4 As can be seen in the foregoing, the sentences involved a minimum full time custody of three years. 5 The victim was the same in each case and was a boy born on 4 May 1993. He was aged seven years when the offences took place. It is obvious that the families of the applicant and the victim were acquainted and, on occasions when the victim's mother was away for purposes of her own, he stayed overnight at the applicant's home. The sleeping arrangement was for a makeshift bed in the applicant's bedroom to be used by the younger boy. All three offences occurred in the applicant's house. 6 The first count related to the boys going to the bedroom in order to sleep. The applicant commenced to kiss the victim on the mouth and intrude his tongue. He told him to remove his pyjamas and asked him to "suck his dick". After several requests to this effect, the boy complied in that the applicant then placed his penis in the boy's mouth. Then the applicant said he would show him "a new thing". He obtained some sort of lubricant from the bathroom which he placed on his penis and he inserted it in the victim's anus. This act constituted the second count. 7 On a later date, the victim's mother was again away and he was staying with the applicant's family. After some kissing, the applicant asked if they "could do it again" and he placed his penis in the victim's mouth. Count 3 was charged on those facts. 8 The objective seriousness of these offences requires no elaboration. The issues raised on appeal were expressed in two grounds: "1. The sentences imposed were manifestly excessive. 2. His Honour failed to impose a penalty which reflected the individualized treatment required when dealing with an offender who was thirteen years old at the time of the offences." 9 The offences had come to light in 2001 when the complainant was apparently again to go and stay with the applicant's family and he said that he did not want to go because the applicant had hurt him putting "something up my bottom". 10 There is no doubt that Taylor DCJ was faced with a difficult sentencing task. He acknowledged that the applicant's case was to be "considered by reference to the set of principles which are in part embodied in s 6 of the Children (Sentencing Procedure) Act 1987". He made no express reference to the regard which he had paid in accordance with the mandate within that provision in particular: "(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 the child to proceed without interruption; (d) That it is desirable, wherever possible, to allow a child to reside in his or her own home." 11 Several authorities referred to by his Honour and in this Court reflect similar themes and no point will be served by recitation of what can be read therein. There is an absence of practical precedent giving applicable guidance in these circumstances. 12 There are no Judicial Commission statistics relating to the commission of these offences by a thirteen year old offender. It is conceivable that there is no other. Senior counsel for the Crown fairly conceded that it must be the case that on any view the applicant is at the bottom of the age range of persons who physically could commit these offences in the sense that he must have been, at most, at the near threshold of sexual maturity. There was no evidence of what stage maturity he had reached when he offended, but, of course, it cannot be ignored that the jury found guilt, in particular of the ingredients making up count 2. 13 Neither are there collated statistics relating to the sentencing of persons aged under eighteen years for this offence. It is significant however that impositions for these offences upon adults are the subject of statistical survey and the effective sentence in this case lies above the middle of that statistical range. Counsel for the applicant contended that this observation could be made and was not contradicted by the Crown Prosecutor. 14 Hence it was submitted that it must follow that these sentences upon a child offender were manifestly excessive. I consider the submission has been made good and the sentences should be set aside and this Court should proceed to resentence. 15 The objective seriousness of the offences may be taken as a constant varying neither at the time of commission, when the applicant appeared for sentence, nor at the present time when considering resentence. The learned sentencing judge recounted the many substantial physical handicaps that had afflicted the applicant and the extensive surgical and other procedures which he has undergone during this lifetime to date. Further surgery is forecast. His physical incapacities have been the subject of teasing by other school pupils in the past and to an extent it would be reasonable to infer he felt excluded from aspects of socialization with his peers. 16 At the time the applicant appeared for sentence, his Honour was provided with an assessment indicating that the applicant's psycho-sexual development was by that time unexceptional. His Honour described an assessment based upon juvenile sex protocol which indicated lower risk of potential future offending as a significant finding and I see no reason to depart from that observation of his Honour. It is noted that the applicant has no convictions other than the present. 17 In order to proceed to resentence, this Court has a considerable advantage in being able to observe the effect upon the applicant of the custody which he has undergone to the present time. His response has been extremely creditable. 18 In an affidavit he describes going into custody at the centre at Kariong where he continued with HSC studies for a time but it became clear that this was a difficult election. Among other things, the disability in his back made attendance in a classroom for extended periods painful and he candidly concedes that, stressed by this, his behaviour included being rude to teachers. A decision was made with his parents' support that he commence available courses of horticulture and car detailing. These have been very successful. He has been able to participate in suitable sports. Within weeks of arrival he was classified as entitled to maximum privileges and he has not lost that classification. He describes his relationship with Mr Lowe, his "key worker", as excellent and he is getting on well with other inmates who recognize his health problems and deal with him accordingly. 19 What the applicant has said is confirmed in an affidavit by Mr Lowe. Included in his testimony is the following: "K is a great kid. His behaviour and attitude is exceptional. He has no problems ….. he is excelling in horticulture and recently completed a car detailing course. ….. I am also K's confidante. He comes to me with his problems, e.g.. problems when he was at school, back problems ….. his footwear had to be adjusted because one leg is longer than the other …. He will be going under the knife. When he was little he had a metal plate put in his back because he has grown it has to be adjusted …. K is very active with sport even with his problem. He has earned the respect of the other boys because of this. They're aware of his charges but don't hold it against him, which is unusual. He gets on very well with everyone. … K's got great family support. Going back to them will be a big plus for him. His parents and young brothers visit fortnightly. I don't think he will have a problem. I don't think it will happen again." 20 It is now approaching four years since any offence was committed. There has been no suggestion that the applicant has given any sign of similar urges which led to them. Of course he has gained in years and experience. He has also had, it appears, proper and appropriate guidance. As noted by Mr Lowe he has good family support. 21 Paying particular attention to the applicable principles when sentencing a juvenile offender, I would resentence the applicant so as to structure the sentences enabling him to return home after one year's detention. His continued progress in rehabilitation is a reason for departing from the proportion between head sentence and non parole period specified in legislation. 22 I propose the following orders:

(1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof the applicant sentenced as follows:

On count 1, to imprisonment for one year six months to commence on 17 October 2003 with a non parole period of nine months commencing on 17 October 2003 and expiring on 16 July 2004.

On count 2, to imprisonment for two years commencing on 17 October 2003 with a non parole period of one year commencing on 17 October 2003 and expiring on 16 October 2004.

On count 3, to imprisonment for one year and six months to commence on 17 October 2003 with a non parole period of nine months commencing on 17 October 2003 and expiring on 16 July 2004.

(5) The sentences to be served concurrently. (6) The applicant ordered released to parole on 16 October 2004. (7) The sentences directed to be served in a juvenile detention centre pursuant to s 19(1) of the Children's (Sentencing Procedure) Act 1987. 23 SIMPSON J: I agree with Grove J.

24 SHAW J: I agree with the reasons of and orders proposed by Grove J and wish to add a short observation of my own. 25 Although the learned trial judge referred to the importance or rehabilitation and the youth of the applicant (namely 13 years at the time of the offences) it does not seem to me, with respect, that he gave adequate weight to the principle "that the courts have taken the view that, the younger the offender, the greater the weight to be afforded to the element of youth" (see Murray Walter Hearne (2001) 124 A Crim R 451 at [27]; and generally at 457 - 459). Although the sentencing judge cited R v GDP (1991) 53 A Crim R 112, he did not mention specifically or expressly the principles applicable, such the notion "that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance": see s 6(b) of the Children (Criminal Proceedings) Act ; GDP (1991) 53 A Crim R 112 per Matthews J at 115 (with whom Gleeson CJ and Samuels JA concurred).

I adhere to what I said (dissenting) in Regina v AO [2003] NSWCCA 43: 58 Section 3 of the Children (Criminal Proceedings) Act 1987 affirmatively states that a person under the age of 18 years is a child. However, s 5 of the Act declares that it is ' conclusively presumed' that children over the age of 10 years must bear responsibility for actions classified as criminal. The principle that balances these two provisions is identified in s 6(b) of the Act, which relevantly states:

6 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:

… (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and emotional immaturity, require guidance and assistance,

59 The regime for sentencing a child is therefore considerably different to sentencing an adult.

60 In sentencing any offender once the minimum period of actual incarceration necessary to reflect the proportionate punishment of an offender has been determined (see Power v The Queen (1974) 131 CLR 623), in some ' special circumstances ' the assessment that an offender has better than usual prosects of rehabilitation is reflected in a shorter period of incarceration than would otherwise be appropriate to allow a longer than usual period of supervision whilst reunited with the community from which they have been excluded ( R v Simpson (2001) 53 NSWLR 704). General deterrence is one factor amongst many to be considered in setting that required minimum period of incarceration ( R v Moffitt (1990) 20 NSWLR 114). However it is generally accepted that in sentencing young offenders considerations of general deterrence are not as significant as in the sentencing of an adult. This reflects an accepted norm that the community interest reflected in the sentencing of a child is not advanced by using him or her as an example but rather in seizing the opportunity to direct the child into rehabilitative efforts: Smith [1964] Crim LR 70; Bellavia (Unreported, Hunt J, 16 August 1980); GDP (1991) 53 A Crim R 112 per Matthews J.

61 Considerations of deterrence are not displaced by a consideration of the rehabilitation of a child: Broad (Unreported, Street CJ, 30 March 1984). In some cases this will override all other considerations: AEM (Snr), KEM, and MM [2002] NSWCCA 58. A proper consideration of the appropriate rehabilitative efforts for the child may even result in an assessment that a long period of time in a detention centre is required: see C, S and T (Unreported, NSWCCA, 12 October 1989) per Gleeson CJ at par 14.

62 As a point of principle, an assessment that the prospects of rehabilitation are poor should not preclude a consideration of those relevant circumstances that proceed on the basis that children are to be sentenced according to a different regime to adult offenders. This is a statutory direction to the courts as well as an ethical, social and intellectual duty for the courts. In this case the emotional immaturity of the applicant, as a child of fourteen at the time the offences were committed, is a material factor that requires a proper assessment of the rehabilitative efforts that may go to at least a distinct possibility of preventing the applicant from re-offending in the future. 26 Nor do I think the proceedings at first instance gave sufficient weight to the opinion of the specialist counsellor (Susan Fawaz) to the effect that the applicant's behaviour and the risks relating to it were "manageable within the community."

27 I would hold that, although "rehabilitation" is mentioned in the remarks on sentence, sufficient weight was not given to its primacy when sentencing a person as young as the applicant, an age which commonsense suggests is about the youngest offender who could or would commit offences of this character.

28 The result was an effective total sentence of five and a half years imprisonment with a non-parole period of three years, a sentence which statistics indicate is at the top end of the range of sentences imposed on persons committing offences of this nature by persons under 21 years of age.

29 The offences are clearly grave. However, in all of the circumstances, I am of the view that the sentences when looked at collectively are excessive and that this court should re-sentence the applicant.

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