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District Court 14 December 2017

R v Campbell (a pseudonym)

[2017] NSWDC 359

Sexual offences
CRIMINAL LAW SENTENCE CHILD OFFENDER SEXUAL ASSAULT OF HIS YOUNGER COUSINS

Citation: R v Campbell (a pseudonym) [2017] NSWDC 359
Court: District Court of New South Wales
Date: 14 December 2017
Judge(s): Berman SC DCJ

Background

The offender, referred to by the pseudonym Paul Campbell, was 13 years old when he committed a series of sexual offences against two young girls, his second cousins, at a family gathering at his grandmother's home in October 2016. The victims, referred to by pseudonyms, were aged six and seven respectively. Both the offender and the victims are subject to non-publication orders.

The offences against the younger girl involved multiple acts of sexual intercourse with a child under the age of 10, including digital penetration, cunnilingus, and fellatio, as well as several acts of aggravated indecent assault. The offences against the older girl involved an act of indecent assault on a person under 16, which was cut short only when another young child entered the room.

The offender was arrested shortly after the offences came to light, pleaded guilty at the earliest opportunity, and was committed for sentence to the District Court.

  • What sentence was appropriate for a 13-year-old child offender who pleaded guilty to multiple serious sexual offences against young children?
  • Whether the offences should be treated as being at the lower end of objective seriousness, as submitted by the defence.
  • Whether a conviction should be recorded, having regard to the policy reflected in section 14 of the Children (Criminal Proceedings) Act.
  • Whether the sentence should be served in a juvenile detention centre under the Children (Criminal Proceedings) Act.
  • Whether the offender should be publicly named, given the risk of identifying the complainants.

Decision

Berman SC DCJ rejected the defence submission that the offences were at the lower end of objective seriousness. The offences against the younger victim were characterised as very serious: forcing a child to perform fellatio to the point of choking was described as a particularly grave form of sexual assault, and the conduct was aggravated by its persistence across two locations and the exploitation of a position of family trust. The offence against the older victim was also treated seriously, the court noting it ceased only because the offender was fortuitously interrupted.

The judge accepted that the offender's age reduced his capacity to fully understand the gravity of his behaviour. However, his pleas of guilty constituted an admission that he knew what he was doing was seriously wrong, not merely naughty. The offender was assessed as genuinely remorseful, of prior good character, and as having good prospects for rehabilitation. He had been receiving psychological support and had already suffered significant personal consequences, including loss of schooling, friendships, and community ties.

Consistent with the general policy in section 14 of the Children (Criminal Proceedings) Act, no conviction was recorded. The court found that the custodial sentence was sufficient punishment, and that the offender should be able to regard himself as having paid his debt to society once released. Special circumstances were identified, primarily the offender's age and the ongoing benefit of counselling, which justified a parole period longer than the standard one-third of the head sentence.

The court declined to authorise the naming of the offender, both because of the relationship between the offender and the victims and because publication of his name risked identifying the complainants.

Orders Made

  • Aggregate sentence of imprisonment imposed from 14 December 2017, comprising a non-parole period of 8 months and a head sentence of 16 months, with release to parole on 13 August 2018.
  • Sentence directed to be served as a Juvenile Offender in a Juvenile Detention Centre under section 19 of the Children (Criminal Proceedings) Act.
  • No conviction recorded.
  • Non-publication orders maintained; offender not to be named.

Key Takeaways

  • A guilty plea by a child offender carries the same significance as one entered by an adult: it constitutes an admission of knowledge that the conduct was seriously wrong, not merely a concession to the facts.
  • Under section 19 of the Children (Criminal Proceedings) Act, a custodial sentence imposed on a juvenile offender may be directed to be served in a juvenile detention centre rather than an adult correctional facility.
  • The District Court confirmed that the absence of a recorded conviction under section 14 of the Children (Criminal Proceedings) Act reflects a general sentencing policy for child offenders, where rehabilitation prospects are strong and the custodial sentence itself is regarded as sufficient punishment.
  • Objective seriousness is assessed on the specific facts: multiple acts of sexual intercourse with a very young child, exploiting a position of family trust, was not accepted as falling at the lower end of the scale despite the offender's young age.
  • A 25 percent reduction in sentence was applied to reflect the utilitarian value of an early guilty plea, consistent with established New South Wales sentencing practice.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act (NSW), ss 14, 15A, 19

Cases:
- RP v R [2015] NSWCCA 215