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9
Court of Criminal Appeal 24 March 2005

REGINA v JDB

[2005] NSWCCA 102

Also reported as (2005) 153 A Crim R 164
Sexual offences
CRIMINAL APPEAL SENTENCE CRIMES ACT, S66A OFFENDER AGED 13 14 AT TIME OF OFFENCE DETERRENCE REHABILITATION (ND)

Citation: REGINA v JDB [2005] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 24 March 2005
Judge(s): Mason P, Barr J, Johnson J

Background

The appellant was 15 years old at the time of sentencing, having committed the offences when he was between 13 years and 5 months and 14 years and 2 months of age. He and his victim were step-siblings: the victim, his half-sister, was 8 years old at the relevant time. The offences occurred during weekend visits to the father's home.

The appellant pleaded guilty to four counts of sexual intercourse with a person under 10 years of age, contrary to s 66A of the Crimes Act 1900, with two further offences of the same nature placed on a Form 1 (meaning they were taken into account at sentencing without separate conviction). The offences involved repeated anal and vaginal penetration carried out in a locked toilet while adults were elsewhere in the house. The appellant told the victim not to disclose what had occurred.

In the District Court, Norrish DCJ imposed a non-parole period of 12 months with a balance of term of two years, to be served in a detention centre, with release to parole under the supervision of the Department of Juvenile Justice. The appellant sought leave to appeal against that sentence.

  • Whether the sentencing judge gave appropriate weight to the appellant's extreme youth, particularly in the balance struck between deterrence and rehabilitation.
  • Whether the structure and length of the custodial sentence was manifestly excessive in the circumstances, including its effect on the appellant's education across two school years.
  • Whether the delay between the offending, the admissions, and the eventual sentencing bore on the appropriateness of the sentence imposed.
  • How the standard non-parole period regime under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 interacted with the appellant's age and guilty plea.

Decision

The Court of Criminal Appeal upheld the appeal and re-sentenced the appellant. Mason P, with whom Barr J and Johnson J agreed, found that the sentencing judge had not adequately prioritised rehabilitation over deterrence for an offender of this age. The principle drawn upon was that for a first-time custodial offender of such extreme youth, rehabilitation should be the primary sentencing objective.

The Court also found that the sentence, as structured, bore unnecessarily harshly on the appellant by disrupting his education across two consecutive school years. Taking into account the provisions of s 6(c) of the Children (Criminal Proceedings) Act, which directs attention to a child offender's welfare, the Court considered it more appropriate that full-time custody should have concluded before the start of the 2005 academic year.

On the question of the standard non-parole period, the Court noted that the regime under Division 1A applied differentially to the offences depending on when they were committed (the first two predated the commencement of the regime in February 2003). However, both parties proceeded on the basis that the appellant's extreme youth reduced the gravitational force of the standard non-parole period considerably, and the Court did not find it necessary to resolve the misstatement of the maximum penalty that had occurred at first instance.

The Court accepted that the appellant had demonstrated genuine remorse, had pleaded guilty at the first reasonable opportunity, and had, by the time of the appeal, developed an appropriate understanding of the impact of his offending on his victim and on family relationships more broadly. Special circumstances justifying a longer than usual parole period were found to exist, based on the appellant's age and the need for ongoing counselling and supervised reintegration.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentences imposed in the District Court on 12 August 2004 quashed.
  • In substitution:
  • On the first two charges: imprisonment for 3 years commencing 10 August 2004 and ending 9 August 2007, to be served in a detention centre, with a non-parole period expiring 24 March 2005.
  • On charges three and four: non-parole period commencing 10 August 2004 and expiring 24 March 2005, with the balance of a three-year sentence expiring 9 August 2007.
  • On release from the non-parole period, the appellant to be subject to parole under the supervision of the Department of Juvenile Justice and the parole conditions set by Norrish DCJ on 12 August 2004.
  • The two Form 1 matters were taken into account in sentencing on the first charge.

Key Takeaways

  • For a young offender facing first-time custody, rehabilitation rather than deterrence should be the primary sentencing consideration, a principle the Court of Criminal Appeal confirmed by reference to GDP (1991) 53 A Crim R 112.
  • A sentence's practical effect on a child offender's education is a relevant consideration under s 6(c) of the Children (Criminal Proceedings) Act, and courts should structure custodial terms with that disruption in mind where possible.
  • The standard non-parole period of 15 years for a s 66A offence carries reduced gravitational force where the offender's extreme youth makes it a disproportionate benchmark, though the Court did not need to resolve the point definitively here.
  • Genuine remorse, early guilty pleas, and demonstrated development of insight into the harm caused to the victim are relevant mitigating factors, even in cases involving serious offences against children.
  • Offences under s 66A of the Crimes Act 1900 are classified as "serious children's indictable offences," requiring the matter to be dealt with in the District Court rather than the Children's Court, even where the offender is very young.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a person under 10 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A (ss 54A-54D), standard non-parole periods; former s 44; Schedule 2, cl 45(1)
- Children (Criminal Proceedings) Act (NSW), s 6(c)

Cases:
- GDP (1991) 53 A Crim R 112
- R v Way (2004) 60 NSWLR 168