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District Court 25 July 2019

R v RJ

[2019] NSWDC 468

Sexual offences
CRIME SENTENCE JUVENILE SEXUAL INTERCOURSE WITH CHILD UNDER TEN INDECENT ASSAULT OF CHILD UNDER 16

Citation: R v RJ [2019] NSWDC 468
Court: District Court of New South Wales
Date: 25 July 2019
Judge: Bourke SC DCJ

Background

The offender was born in June 2000 and was aged 14 to 15 at the time of the offences. The complainant was a seven-year-old child known to the offender through their families' shared involvement in boxing and martial arts classes.

The offender was found guilty by a jury on five counts following a trial in April 2019. The offences involved two counts of sexual intercourse with a child under ten years of age and three counts of indecent assault of a child under 16, all occurring in 2015.

The offending came to light on 12 December 2015 when the complainant's mother observed suspicious circumstances and questioned the complainant directly. The complainant subsequently disclosed the offending to his mother, and a formal JIRT (Joint Investigation Response Team) interview took place in February 2016.

  • What findings of fact, consistent with the jury verdicts, could be made regarding the circumstances of the offending?
  • How objectively serious were the offences, having regard to the particular circumstances?
  • What weight should be given to the offender's youth and other subjective factors in mitigation?
  • Whether the standard non-parole period provisions applied, given the offender was a child at the time of the offences?
  • Whether a custodial sentence was necessary, or whether a community-based order would suffice?
  • Whether the period of imprisonment should be served as a juvenile offender pursuant to the Children (Criminal Proceedings) Act 1987 (NSW)?

Decision

Bourke SC DCJ assessed the objective seriousness of the five offences individually. Count 5, involving penile and digital penetration of the complainant's anus, was the most serious. Count 2, involving digital penetration of the anus in circumstances where the complainant asked the offender to stop, was the next most serious. The remaining counts involved the touching of the complainant's penis by the offender's hand and penis. Counts 3 to 5 were aggravated because they occurred in the complainant's home, and all offences were aggravated by the complainant's particular vulnerability as a seven-year-old, well below the age thresholds specified in each offence provision.

The court rejected the submission that the offending was less serious because the complainant appeared to have forgotten aspects of it. His Honour noted that courts have developed a greater appreciation of the lasting adverse effects of child sexual abuse, even where a victim cannot articulate or recall all details.

On subjective factors, the offender's youth at the time of the offending was treated as a significant mitigating consideration. Although the offender was no longer a child at the time of sentencing, his Honour noted that sentencing principles applicable to juvenile offenders remained fundamentally important, given the offender would ordinarily have been sentenced as a child had there been no delay. The court considered the offender's prospects of rehabilitation and his lack of prior criminal history.

Having concluded that imprisonment was the only appropriate penalty, the court imposed an aggregate sentence under the aggregate sentencing provisions. Special circumstances were found for varying the statutory ratio of non-parole period to head sentence, reflecting the offender's youth, his first time in custody, his good prospects of rehabilitation, and the need for a meaningful period of supervised parole. The court further ordered that the sentence be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987, finding an unacceptable risk of physical or psychological harm to the offender in an adult prison given the nature of the offences, his relative youth, and his lack of prior exposure to the prison system.

Orders Made

  • The offender was convicted on all five counts.
  • An aggregate head sentence of two years and nine months was imposed.
  • A non-parole period of nine months was fixed, commencing 25 July 2019.
  • Eligibility for release on parole: 24 April 2020.
  • Sentence expiry: 24 April 2022.
  • The sentence was ordered to be served as a juvenile offender pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW).

Key Takeaways

  • Standard non-parole period provisions do not apply where the offender was a child at the time of the relevant offences, even if the offender has reached adulthood by the time of sentencing.
  • Sentencing principles applicable to juvenile offenders retain fundamental importance when an adult is sentenced for offences committed as a child, particularly where delay in proceedings is responsible for the offender reaching adulthood before sentence.
  • The District Court rejected the proposition that a complainant's inability to recall all details of sexual offending reduces the objective seriousness of the conduct, noting the recognised capacity of child sexual abuse to cause lasting harm even where specific memories fade.
  • Under s 19 of the Children (Criminal Proceedings) Act 1987, a court may order that a sentence be served as a juvenile offender where there is an unacceptable risk of physical or psychological harm in an adult correctional facility, having regard to the nature of the offences, the offender's youth, and prior exposure to custody.
  • Special circumstances justifying a departure from the standard non-parole period ratio may be established by a combination of factors including the offender's youth, a first period in custody, good prospects of rehabilitation, and the desirability of a supervised transition to parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19

Cases:
- PWB v The Queen [2011] NSWCCA 84