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10
Court of Criminal Appeal 9 June 2005

Regina v AD

[2005] NSWCCA 208

Sexual offences
CRIMINAL LAW SENTENCING

Citation: Regina v AD [2005] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 9 June 2005
Judge(s): Studdert J, Howie J, Latham J

Background

The applicant was a 15-year-old who pleaded guilty in the District Court to aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). The offence involved digital penetration of a 15-year-old complainant, committed in the presence of a 22-year-old male. The Judge sentenced the applicant to a non-parole period of 2 years and 6 months, with a parole period of 1 year and 9 months, to be served in a juvenile detention centre.

A procedural step in the lead-up to sentence was significant. The charge was reformulated between committal and arraignment, so that the circumstance of aggravation relied upon changed from "in company" (s 61J(2)(c)) to the complainant being under 16 years (s 61J(2)(d)). That change altered the applicant's classification under the Children (Criminal Proceedings) Act 1987 (NSW) and, with it, the range of sentencing options available to the District Court.

The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and that the sentencing judge had misapplied the relevant statutory framework.

  • Whether the sentencing judge misunderstood the discretion available under the Children (Criminal Proceedings) Act 1987 following the reformulation of the charge
  • Whether the sentencing judge failed to have regard to s 6 of the Children (Criminal Proceedings) Act 1987, which requires courts to treat the rehabilitation of a child as a primary consideration
  • Whether the sentence imposed was manifestly excessive having regard to the applicant's age and the objective circumstances of the offending
  • Whether the judge erred in the treatment of the applicant's guilty plea

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Howie J (with whom Studdert J and Latham J agreed) examined each ground and found no legal error that would warrant intervention.

On the question of the statutory framework, the Court confirmed that once the charge was reformulated under s 61J(2)(d), the offence no longer fell within the definition of a "serious children's indictable offence" under s 3 of the Children (Criminal Proceedings) Act. This meant the District Court had a discretion under s 18 of that Act to deal with the applicant either at law or under the more limited sentencing options in Division 4 of Part 3. The sentence imposed made clear the judge had exercised that discretion in favour of dealing with the applicant at law, and the Court found no error in that exercise.

Regarding s 6 of the Children (Criminal Proceedings) Act, which directs that a court treating a child as an adult should give primary consideration to the child's rehabilitation, the Court noted that while the sentencing judge had not expressly cited the provision, she had plainly taken the applicant's age, background, and rehabilitative prospects into account. The absence of an express reference to s 6 did not, of itself, demonstrate a miscarriage of the sentencing discretion.

On manifest excess, the Court acknowledged the sentence was toward the upper end of the available range, particularly given the applicant's age. However, it concluded the undiscounted head sentence of 7 years was within the range open to the judge. The Court noted the offending was in the most serious category of digital penetration offences, that the standard non-parole period of 10 years for s 61J offences required sentences above the midpoint even in mid-range cases, and that the applicant's attitude to the offending reduced the mitigating weight normally attributable to youth.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Reformulating a charge under s 61J of the Crimes Act 1900 from s 61J(2)(c) ("in company") to s 61J(2)(d) (complainant under 16) removes the offence from the definition of "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987, opening a broader sentencing discretion under s 18 of that Act.
  • A sentencing court's failure to expressly cite s 6 of the Children (Criminal Proceedings) Act does not automatically establish that rehabilitation was not treated as a primary consideration, provided the judgment otherwise addresses the relevant factors.
  • Where a standard non-parole period of 10 years applies to an offence carrying a maximum of 20 years, the structure of the standard non-parole period regime will generally produce head sentences exceeding half the maximum, even in mid-range cases, as confirmed by R v Pellew [2004] NSWCCA 434.
  • In dismissing the appeal, the Court of Criminal Appeal accepted that the rehabilitative weight ordinarily given to youth can be reduced where the applicant's conduct and attitude toward the offending diminish the mitigating force of that factor.
  • Sufficient objective seriousness in digital penetration offences can limit the mitigation available from the fact that the offender and complainant were the same age.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 18, 18(1A), 33(1)(g), Division 4 Part 3
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Li (NSWCCA, unreported, 9 July 1997)
- De Simoni principle
- R v MHH [2001] NSWCCA 161
- R v SDM [2001] NSWCCA 158
- R v Voss [2003] NSWCCA 182
- R v Slack [2004] NSWCCA 128
- R v Pellew [2004] NSWCCA 434