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District Court 28 March 2018

R v BJ; R v HA; R v DM

[2018] NSWDC 122

Sexual offences
SECTION 66C(4) CRIMES ACT 1900 OFFENDERS IN COMPANY YOUNG OFFENDERS OFFENDERS SINGLE VICTIM PLEAS OF GUILTY

Citation: R v BJ; R v HA; R v DM [2018] NSWDC 122
Court: District Court of New South Wales
Date: 28 March 2018
Judge: Montgomery DCJ

Background

Three young male offenders pleaded guilty on 1 November 2017 to aggravated sexual intercourse with a female victim aged 15 years and five months, contrary to section 66C(4) of the Crimes Act 1900. The circumstance of aggravation was that each offender was in company at the time of the offending. The maximum penalty for the offence is 12 years imprisonment.

The offending occurred on the night of 20 to 21 May 2016 at a residential premises. The victim had found herself stranded after her friend was arrested, and with no alternative accommodation she stayed at the premises at the invitation of one of the offenders. She had never met any of the three offenders before that evening and had unsuccessfully attempted to contact her boyfriend to collect her.

The three offenders, identified by initials only, were BJ (aged 14 years and six months at the time), HA (aged 17 years), and DM (aged 17 years and six months). Each had separate criminal antecedents and distinctive personal circumstances. The matters were dealt with together for sentencing, with the court considering questions of parity and the applicable principles under the Children (Criminal Proceedings) Act 1987.

Legal Issues

  • Whether the offenders should be dealt with according to law or under the juvenile sentencing regime in Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987
  • The appropriate utilitarian discount for guilty pleas entered at the commencement of trial
  • The objective seriousness of each offender's conduct, assessed individually against the overall circumstances
  • How the sentencing principles applicable to young offenders, including rehabilitation, deterrence, denunciation, and the offenders' dysfunctional backgrounds, should be balanced
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • How to apply the parity principle across three offenders with different levels of culpability and personal circumstances

Decision

Guilty plea discount: The court found a 15 percent utilitarian discount was appropriate for each offender (at [4]). The pleas, entered on the first day of a listed trial, saved the victim from giving evidence and avoided the cost of a jury trial. The court noted the pleas were consistent with recognition of criminality but not with remorse, as the offenders were aware the victim was about to give evidence (at [4]).

Standard non-parole period: The standard non-parole period of five years prescribed for section 66C(4) offences did not apply because each offender was a child at the time of the offence, pursuant to section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (at [8]). Equally, because the offenders were juveniles, standard non-parole periods provided no sentencing guidance at all (at [31]).

Objective seriousness: The court assessed objective seriousness by reference to all circumstances, including the absence of violence, physical hurt, humiliation caused, and duration, rather than solely the nature of the sex acts committed (at [12]). No offender employed physical force, threat, or coercion. The court accepted the victim's impact statement as a believable and expected description of the harm caused, finding she experienced fear, violation, isolation, and upset beyond reasonable doubt (at [16]-[17]). The physical injury, a superficial abrasion with some bleeding, was not identifiable with any intended or cruel act and did not constitute significant aggravation under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (at [35], [43]).

Whether to deal with each offender according to law: The court exercised its discretion under section 18(1A) of the Children (Criminal Proceedings) Act 1987 to deal with all three offenders according to law rather than under the Children's Court jurisdiction, in light of the prevalence of the offence, the nature of the criminality, and each offender's antecedent history (at [97], [136], [168]). The court noted that section 66C(4) is not a "serious children's indictable offence" and therefore it was not compelled to deal with them according to law, making the exercise of this discretion an important step in each sentencing (at [24]).

BJ (aged 14 years and six months): BJ was sentenced on three counts. The court found his offending was of serious but not the most serious objective gravity, given it involved peers of similar age, no violence or coercion, and BJ's position as the youngest offender who followed the conduct of older peers (at [51], [55], [57]). His severely dysfunctional upbringing, including exposure to his father's drug dealing and family criminality, operated in mitigation and favoured rehabilitation over deterrence (at [66]-[80]). His inability to articulate empathy and pattern of victim blaming were noted negatively (at [91]). Special circumstances were found, given the importance of supervision to assist reintegration (at [100]). BJ was sentenced to an aggregate term of four years juvenile detention commencing 22 May 2016, with a non-parole period of two years expiring 21 May 2018 (at [106]-[107]).

HA (aged 17 years): HA stood by during the first incident without physical contact, making his Count 1 offence one of lower objective seriousness based on presence and joint criminal enterprise (at [111]). His Count 2 offence, penile/vaginal intercourse during the second incident, was of serious objective gravity (at [114]). The court found HA's age, large build, and relative maturity increased his objective seriousness compared to BJ (at [112]-[113]). His significant antecedent history including robbery in company, and the fact that he offended while on conditional liberty, were aggravating (at [115]-[116]). His sustained positive conduct in custody was noted favourably (at [120]-[123]). Special circumstances were found based on youth and the importance of continuing rehabilitation (at [140]). HA was sentenced to an aggregate of 4 years and 8 months detention commencing 27 October 2016, with a non-parole period of 2 years and 4 months expiring 26 February 2019 (at [141]).

DM (aged 17 years and six months): DM was sentenced on one indictment count with a further offence taken into account on a Form 1. He was the oldest offender and the initiator of the physical sexual conduct (at [144]-[147]). His leadership role made his offending objectively more serious than that of his co-offenders (at [149]). His highly dysfunctional background, including displacement as a refugee, physical abuse by family members, and mental health diagnoses including depression and conduct disorder, was taken into account (at [155]-[166]). He was sentenced to a term of five years detention with a non-parole period of 2 years and 9 months, commencing 27 July 2016, with eligibility for parole on 27 April 2019 (at [172]-[173]).

Orders Made

  • BJ: Aggregate sentence of four years juvenile detention, commencing 22 May 2016, expiring 21 May 2020; non-parole period of two years commencing 22 May 2016, expiring 21 May 2018; earliest parole eligibility 22 May 2018.
  • HA: Aggregate sentence of 4 years and 8 months detention, commencing 27 October 2016, expiring 26 June 2021; non-parole period of 2 years and 4 months commencing 27 October 2016, expiring 26 February 2019; earliest parole eligibility 27 February 2019. The sentence to be served as a juvenile offender until HA turns 21 on 17 May 2020, thereafter as imprisonment or under Community Corrective Services supervision.
  • DM: Term of detention of 5 years with a non-parole period of 2 years and 9 months, commencing 27 July 2016; non-parole period expiring 26 April 2019; eligible for parole from 27 April 2019. The sentence to be served as a juvenile offender until DM turns 21 on 26 September 2019, thereafter under Community Corrections Services.

Key Takeaways

  • The District Court confirmed that where all offenders are children at the time of offending, the standard non-parole period for section 66C(4) Crimes Act 1900 offences does not apply, and standard non-parole periods generally provide no sentencing guidance for juvenile offenders (at [8], [31]).

  • Objective seriousness under section 66C(4) must be assessed holistically, taking into account the absence or presence of violence, the humiliation caused to the victim, the physical harm inflicted, and the circumstances of the offending, rather than treating the nature of the sex act as the sole or primary factor (at [12]).

  • A guilty plea entered at the commencement of trial, where the offender was aware the victim was about to give evidence, may attract a discount at the higher end of the applicable range (here, 15 percent) where it saves the victim from testifying and avoids the cost of a jury trial, even absent evidence of genuine remorse (at [4]).

  • Dysfunctional upbringing and social disadvantage, including exposure to family criminality and instability from a very young age, can moderate the weight given to personal and general deterrence in favour of rehabilitation when sentencing young offenders, consistent with the principles in Bugmy v R (at [32]).

  • Under section 18(1A) of the Children (Criminal Proceedings) Act 1987, where an offence is not a "serious children's indictable offence," the District Court retains a discretion whether to deal with a young offender according to law or within the Children's Court jurisdiction. The prevalence of the offence and the nature of each offender's antecedents are among the relevant considerations in exercising that discretion (at [24], [30]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)

Cases
- AI v R; R v SB and AI [2011] NSWCCA 95
- Armstrong v R [2017] NSWCCA 323
- B v R (1958) 44 Cr App R 1
- B v R; SW v R [2006] NSWCCA 172
- Bugmy v R [2013] HCA 37; 249 CLR 571; 229 A Crim R337
- Franklin v R [2013] NSWCCA 122
- Hili v The Queen, Jones v The Queen (2010) 242 CLR 520 at 537; [2010] HCA 45
- KT v The Queen (2008) A Crim R 571; [2008] NSWCCA 51
- Ohanian v R [2017] NSWCCA 268
- OM v R, MH v R, AA v R, ASB v R [2009] NSWCCA 267
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v AS (2006) 165 A Crim R 100
- R v Do [2005] NSWCCA 209
- R v KB; R v JL; R v RJB [2011] NSWCCA 109
- R v Slack [2004] NSWCCA 128
- R v Thomson and R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v WKR (1993) 32 NSWLR 447
- R v YS [2014] NSWCCA 26
- Rainbow v R [2018] NSWCCA 442
- Simpson v R [2014] NSWCCA 23
- Vougdis v R (1989) 41 A Crim R 125
- Wakeling v R [2016] NSWCCA 33