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District Court 16 April 2019

R v RI

[2019] NSWDC 129

Sexual offences

Citation: R v RI [2019] NSWDC 129
Court: District Court of New South Wales
Date: 16 April 2019
Judge(s): Judge Gordon Lerve

Background

The offender, an Aboriginal man aged 17 years, 11 months and 28 days at the time of the offences, pleaded guilty in the District Court to two counts of sexual intercourse with a child aged 14 years, contrary to section 66C(3) of the Crimes Act 1900. The offences involved digital penetration and penile/vaginal intercourse occurring in the same episode at a teenage party in April 2017. The offender had been told by others at the party that the victim was 15, and honestly believed on reasonable grounds that she was consenting.

The matter was committed for trial from a regional Children's Court in August 2017. Critically, the Crown conceded that the offender had offered to plead guilty to these charges while the proceedings were still in the Children's Court. Because those charges were not initially proceeded with in that forum, the matter was committed and the offender ultimately came before the District Court on indictment, a jurisdiction ordinarily reserved for adult offenders.

At the time of sentencing, the offender was 20 years old, had completed his HSC, was pursuing a shop-fitting apprenticeship, and had been involved with the Clontarf Foundation, an Aboriginal service supporting education and employment. His prior criminal history before the offending was nil.

Legal Issues

  • Whether the court should sentence the offender "according to law" (as an adult, under the Crimes Sentencing Procedure Act 1999) or under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987, given he was a juvenile at the time of the offences
  • What discount applied to the sentence in light of the offender's early offer to plead guilty in the Children's Court
  • What objective seriousness attached to each count and how the sentencing exercise should reflect the offender's age, character, and prospects
  • Whether the court should exercise its discretion under section 3C(1) of the Child Protection (Offenders Registration) Act 2000 to declare the offender not to be a registrable person

Decision

Issue 1: Which sentencing regime applied

The court declined to sentence the offender according to law and instead applied Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987. The central reason was that the offender had offered to plead guilty in the Children's Court and lost the opportunity to be dealt with in that jurisdiction through no fault of his own (at [32]). The court drew an analogy with cases where an adult offender loses the chance to have a matter dealt with in the Local Court, treating the lost Children's Court opportunity as a powerful discretionary factor favouring the children's sentencing regime (at [33]).

Issue 2: Discount for plea

Because the Crown conceded the offender had offered to plead guilty while still in the Children's Court, the court applied the full 25 percent utilitarian discount for the pleas of guilty entered in the District Court (at [7]).

Issue 3: Objective seriousness and subjective circumstances

The court assessed both counts as falling within the mid-range of objective seriousness, towards the lower end, with the penile/vaginal intercourse count more serious by reason of the nature of the penetration and the act of ejaculation, which the court found added to the objective gravity of that count (at [25]). Although the offending was not spontaneous, there was no use of weapons, no extensive planning, and no prior criminal history (at [36]). The court found on balance that the offender was remorseful (at [58]) and unlikely to re-offend, with good prospects of rehabilitation (at [59]). The court also noted the principle that a child offender almost 18 years of age cannot be expected to be treated substantially differently from one just over 18, but applied this within the children's legislation framework given the lost jurisdictional opportunity.

Issue 4: Registrable person declaration

The court exercised its discretion under section 3C(1) of the Child Protection (Offenders Registration) Act 2000 and declared the offender not to be a registrable person. The court proceeded on the basis that the offender bore the onus, and that the standard of proof was the balance of probabilities, drawing an analogy with Olbrich v The Queen (1999) 199 CLR 270 in the absence of any statutory guidance (at [67]). Satisfied that the offender had no prior Class 1 or Class 2 convictions, and finding that he did not pose a risk to the lives or sexual safety of children, the court made the declaration (at [68]).

Orders Made

  • Convicted on both counts
  • Released on probation for two years in respect of each count pursuant to section 33(1)(e) of the Children (Criminal Proceedings) Act 1987
  • Declared not to be a registrable person under the Child Protection (Offenders Registration) Act 2000 pursuant to section 3C(1) of that Act

Key Takeaways

  • The District Court held that a juvenile offender who loses the opportunity to have charges dealt with in the Children's Court, through no fault of his own, has a particularly strong basis for the sentencing court to apply the children's sentencing regime rather than deal with him according to law (at [32]).
  • Where a Crown concedes that a juvenile offender offered to plead guilty in the Children's Court to the charges ultimately resolved in a higher court, that offender is entitled to the full 25 percent utilitarian discount for the plea (at [7]).
  • Under section 3C(1) of the Child Protection (Offenders Registration) Act 2000, a court may declare a juvenile offender not to be a registrable person where a non-custodial sentence is imposed, no prior Class 1 or Class 2 offences exist, and the court is satisfied on the balance of probabilities that the offender does not pose a risk to the sexual safety of children (at [67]-[68]).
  • A sentencing court applying the Children (Criminal Proceedings) Act 1987 must give proper weight to rehabilitation as the primary consideration for juvenile offenders, while still having regard to objective seriousness, particularly where the offending is sexual in nature and involves a young victim (at [35]-[36]).
  • The offender's loss of the Children's Court jurisdiction also meant he lost the discretion available under section 14(2) of the Children (Criminal Proceedings) Act not to record a conviction; the District Court had no such discretion when dealing with the matter on indictment (at [69]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000
- Children (Criminal Proceedings) Act, 1987
- Child Protection (Offenders Registration) Act 2000
- Crimes (Sentencing Procedure) Act, 1999
- Crimes Act 1900

Cases
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v BA [2014] NSWCCA 148
- R v BP [2010] NSWCCA 159
- R v KT [2008] NSWCCA 51
- R v Gavel [2014] NSWCCA 56
- Jolly v R [2013] NSWCCA 76
- Khanwaiz v R [2012] NSWCCA 168
- Mead v Mead [2007] HCA 25
- DPP v Pinn [2015] NSWSC 1684
- Olbrich v The Queen (1999) 199 CLR 270
- Zreika v R [2012] NSWCCA 44