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District Court 21 September 2018

R v EC

[2018] NSWDC 267

Sexual offences
HISTORICAL SEXUAL OFFENDING BY JUVENILE

Citation: R v EC [2018] NSWDC 267
Court: District Court of New South Wales
Date: 21 September 2018
Judge(s): Mahony SC DCJ

Background

The offender was convicted by a jury on three counts of historical child sexual offending committed in 1976 and 1977, when he was 16 or 17 years of age. Two counts of indecent assault against a male (Count 1 and Count 3) arose from a single night when the offender engaged in sexual acts with a young male victim staying at his grandparents' home. The third count (Count 4) concerned carnal knowledge of a girl under 10 years of age, who was the offender's niece and in his care as babysitter at the time.

By the time of sentencing, approximately 42 years had passed since the offending. The offender, now an adult, maintained a complete denial of the offences and expressed no remorse or empathy toward either victim. A forensic psychologist assessed him as posing a low risk of re-offending.

The central challenge at the sentence hearing was how to apply current sentencing law and contemporary community standards to conduct committed by a juvenile almost half a century earlier.

Legal Issues

  • What sentencing framework applies to an adult offender being sentenced in 2018 for offences committed as a juvenile in 1976 and 1977?
  • What weight should be given to the offender's age at the time of the offending, given that juvenile status diminishes moral culpability?
  • How does section 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires regard to current sentencing patterns and practices, interact with the historical juvenile sentencing regime under the Child Welfare Act 1939?
  • What is the objective seriousness of each of the three offences?
  • Whether the custodial sentencing threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed, and whether any sentence could be suspended under section 12 of that Act?

Decision

Applicable Sentencing Framework

The court held that the Crimes (Sentencing Procedure) Act 1999 governed the sentencing exercise, including section 25AA, which requires regard to current sentencing patterns and practices for sexual offences against children (at [45]-[49]). Following TC v R [2016] NSWCCA 3, the court also had regard to the Child Welfare Act 1939 regime that applied at the time of the offending, noting that it permitted suspension of sentences imposed on young offenders (at [54]). The court accepted that the principles of the Children (Criminal Proceedings) Act 1987 emphasising rehabilitation over punishment were relevant to understanding the sentencing context for a juvenile offender, but did not displace the operation of section 25AA (at [41]-[42]).

Objective Seriousness

The court assessed Counts 1 and 3 at the lower end of the range of objective seriousness for indecent assault offences under section 81 of the Crimes Act 1900. There were no threats, violence, or inducements, and the conduct occurred over a short period on a single night (at [46]). Count 4, involving penile-vaginal penetration of a child aged 7 or 8 years in her own home while in the offender's care, was more serious but still found to be below mid-range, given its brief duration and the minimal physical injury caused (at [47]-[48]).

Subjective Factors and the Role of Delay

The offender's juvenile age at the time of the offending was a mitigating factor that diminished his moral culpability (at [45], [55]). The court took into account that the offender had not re-offended in over 42 years, was assessed as low risk, and had himself been a victim of childhood sexual abuse, which contributed to a generalised anxiety disorder (at [50]-[52]). The court also noted the extra-curial consequences of imprisonment, including loss of his Disability Pension and Housing Commission tenancy (at [50]). However, the principle from R v Todd concerning the mitigation available from delay in bringing charges did not apply to reduce the sentence here (at [55]). The absence of remorse and continuing denial were noted, and the court confirmed that general and specific deterrence both played a role (at [51]).

Sentence

The court found that the section 5 custody threshold was crossed and that section 25AA required a custodial sentence rather than an alternative penalty (at [56]). It imposed 6 months imprisonment on each of Counts 1 and 3, to be served concurrently, and 2 years imprisonment on Count 4, commencing at the same time and therefore running partly concurrently. All three sentences were suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 on conditions including good behaviour, acceptance of Community Corrections supervision, and engagement in psycho-therapeutic counselling (at [56]-[57]).

Orders Made

  • Convicted on Count 1 (indecent assault on a male, s 81 Crimes Act 1900): 6 months imprisonment from 21 September 2018 to 20 March 2019, suspended.
  • Convicted on Count 3 (indecent assault on a male, s 81 Crimes Act 1900): 6 months imprisonment from 21 September 2018 to 20 March 2019, suspended.
  • Convicted on Count 4 (carnal knowledge of a girl under 10 years, s 67 Crimes Act 1900): 2 years imprisonment from 21 September 2018 to 20 September 2020, suspended.
  • All sentences suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 on conditions of good behaviour, acceptance of Community Corrections supervision, and compliance with any rehabilitation directions including psychological counselling.
  • Breach of conditions may result in the offender being called up for sentencing on all three counts.

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 applies to historical child sexual offences and requires a sentencing court to have regard to current sentencing patterns and practices, even where the offending occurred decades earlier (at [45]-[49]).
  • Following TC v R [2016] NSWCCA 3, a sentencing court dealing with historical offending by a juvenile must also have regard to the statutory regime that applied to young offenders at the time of the conduct, including the Child Welfare Act 1939 and its power to suspend sentences (at [54]).
  • A juvenile offender's age at the time of the offending remains a material mitigating factor that reduces moral culpability, even when the offender is sentenced as an adult many years later (at [45], [55]).
  • The R v Todd principle allowing mitigation of sentence on account of delay in prosecution does not automatically apply in cases of historical child sexual assault and was declined on the facts here (at [55]).
  • Victim impact statements unsupported by medical or other evidence will not be used by a court to aggravate the offender's moral culpability or to increase the sentence imposed (at [53]).

Legislation and Cases Referenced

Legislation
- Child Welfare Act 1939
- Children (Criminal Proceedings) Act 1987
- Children’s Court Act 1987
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Harris v R [2017] NSWCCA 254
- R v GDP (1991) 53 ACrimR 112
- R v Todd (1982) 2 NSWLR 517
- TC v R [2016] NSWCCA 3