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Court of Criminal Appeal 13 September 2004

Regina v KLH

[2004] NSWCCA 312

Also reported as (2004) 148 A Crim R 515
Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE SEXUAL OFFENCE OFFENDER AGED THIRTEEN COMPLAINANT AGED SEVEN ADULT OFFENDER STATISTICS

Citation: Regina v KLH [2004] NSWCCA 312
Court: New South Wales Court of Criminal Appeal
Date: 13 September 2004
Judge(s): Grove J, Simpson J, Shaw J

Background

The appellant was convicted in the Goulburn District Court on three counts of sexual intercourse with a child under ten years, contrary to s 66A of the Crimes Act 1900. The offences occurred between May and December 2000. The appellant was thirteen years old at the time of the offending, and the victim was a seven-year-old boy whose family was acquainted with the appellant's family.

Taylor DCJ sentenced the appellant to a total effective term of five and a half years imprisonment, with a non-parole period of three years. By direction under the Children (Sentencing Procedure) Act 1987, the appellant was to serve the sentence in a juvenile detention centre. Two grounds of appeal were raised against that sentence.

The appeal came before the Court of Criminal Appeal, which also had the benefit of observing the appellant's conduct and progress during the period of custody already served.

  • Whether the sentences imposed were manifestly excessive, particularly when measured against Judicial Commission statistics for adult offenders committing equivalent offences.
  • Whether the sentencing judge gave sufficient individual weight to the appellant's age of thirteen at the time of the offences, in accordance with the principles in the Children (Sentencing Procedure) Act 1987.
  • Whether adequate primacy was given to rehabilitation as a sentencing objective when dealing with an offender of this age.

Decision

The Court found that the sentences were manifestly excessive. A critical observation was that there are no Judicial Commission statistics for thirteen-year-old offenders committing offences of this kind, and no collated statistics for offenders under eighteen. However, statistics do exist for adult offenders, and the effective sentence imposed on the appellant sat above the midpoint of that adult range. The Crown did not contradict this point. The Court held that a sentence for a child offender falling above the middle of the adult statistical range could not be sustained.

The Court also found that the sentencing judge had not given sufficient weight to the mandatory principles in s 6 of the Children (Sentencing Procedure) Act 1987, including the recognition that children bear responsibility for their actions but require guidance and assistance due to their immaturity and dependency. The judge had mentioned rehabilitation in the sentencing remarks but had not treated it as the primary consideration that the statute and established principle require when sentencing a child of this age.

The Court noted several significant features bearing on resentence: the appellant had serious physical disabilities and had faced social exclusion as a result; a specialist counsellor had assessed his behaviour and associated risks as manageable within the community; and his response to custody at Kariong had been described as "extremely creditable." His psycho-sexual development was assessed as unexceptional by the time of sentence, and the risk of future offending was rated as low under the juvenile sex offending protocol.

The Court allowed the appeal and proceeded to resentence the appellant, treating the objective seriousness of the offences as unchanged while affording greater weight to rehabilitation and the individualised approach required for child offenders.

Orders Made

  • Appeal allowed.
  • Appellant resentenced.

Key Takeaways

  • Where an offender is a child, the Children (Sentencing Procedure) Act 1987 imposes a statutory obligation to apply individualised sentencing principles, including giving primacy to rehabilitation rather than treating it as merely one factor among equals.
  • A sentence imposed on a thirteen-year-old offender that exceeds the midpoint of the statistical range for adult offenders committing the same offence is liable to be characterised as manifestly excessive.
  • The Court of Criminal Appeal confirmed that considerations of deterrence are not entirely displaced when sentencing child offenders, but rehabilitation must occupy a central rather than peripheral role.
  • In resentencing, the absence of prior convictions, a specialist assessment that the offender's risk was manageable in the community, and demonstrably positive conduct during custody were all treated as material circumstances.
  • The decision illustrates that even for grave offences, sentencing courts dealing with very young offenders must articulate, and give genuine effect to, the rehabilitative purposes embedded in the children's sentencing legislation.

Legislation and Cases Referenced

Legislation
- Children (Sentencing Procedure) Act 1987 (NSW)
- Crimes Act 1900 (NSW), s 66A

Cases
- R v AEM [2002] NSWCCA 58
- R v AO [2003] NSWCCA 43
- R v Bellavia (unreported, NSWSC, 16 August 1980)
- R v Broad (unreported, NSWCCA, 30 March 1984)
- R v C (unreported, NSWCCA, 12 October 1989)
- R v GDP (1991) 53 A Crim R 112
- R v Hearne (2001) 124 A Crim R 451
- R v Moffitt (1990) 20 NSWLR 114
- Power v The Queen (1974) 131 CLR 623
- R v Simpson (2001) 53 NSWLR 704
- R v Smith [1964] Crim LR 70