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District Court 27 November 2019

R v Pankhurst

[2019] NSWDC 719

Sexual offences
YOUNG OFFENDER.

Citation: R v Pankhurst [2019] NSWDC 719
Court: District Court of New South Wales
Date: 27 November 2019
Judge: Mahony SC DCJ

Background

The offender was born in April 2000 and was 18 years old at the time of sentencing. He pleaded guilty on the first day of trial to four offences arising from a series of incidents in 2018 involving female victims aged 12 and 14. The offending occurred in the context of his attendance at a NSW high school.

The first two counts involved physical sexual assaults. The first took place at a school athletics carnival in May 2018, when the offender committed two separate aggravated indecent assaults on a 14-year-old student near the Yass River. A second physical assault occurred at the school in June 2018, when the offender accosted a 12-year-old student outside the girls' toilets, physically assaulted her, and threatened her with harm if she reported the incident.

The online offences arose from a separate police covert operation, which began after police received information that the offender was using Instagram to target a 12-year-old girl for sexual activity. Between October 2018, the offender engaged in conversations with an undercover police operative on Skype, repeatedly soliciting explicit images from someone he believed to be a 13-year-old, and later transmitting an unsolicited image of a penis to that operative.

  • What sentence was appropriate for a young offender who pleaded guilty late to two counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 (NSW), each carrying a maximum of 10 years and a standard non-parole period of 8 years?
  • What weight should be given to the offender's youth, diagnosed conditions (Attention Deficit Disorder and Oppositional Defiant Disorder), and limited insight into his conduct?
  • How should the federal offences of using a carriage service to solicit child pornography material (s 474.19, Criminal Code 1995 (Cth)) and transmitting an indecent communication to a person under 16 (s 474.27A) be sentenced alongside the state offences?
  • Was a non-custodial sentence appropriate in the circumstances, and on what conditions?

Decision

Mahony SC DCJ accepted that the offender was entitled to only a 5% utilitarian discount for his late guilty plea, entered on the first day of trial. The court noted the offender had shown minimal insight into his conduct, characterising the assaults as "mucking around" and denying the behaviour was sexual in nature. A Sentencing Assessment Report recorded no prior history of anti-social behaviour but identified a diagnosed need for cognitive behavioural therapy and psychological support.

The court took into account the offender's youth as a significant mitigating factor, alongside his diagnosed conditions. Rehabilitation was treated as a central sentencing consideration, consistent with the approach to young offenders. The court also noted two additional aggravated indecent assault matters that were placed on a Form 1 (that is, taken into account at sentencing without a separate conviction being recorded).

For all four offences, the court imposed non-custodial sentences. The state offences received Community Correction Orders, and the federal offences received conditional release orders under s 20(1)(a) of the Crimes Act (Cth). All orders were subject to conditions requiring engagement with Community Corrections, compliance with a supervision plan, cognitive behavioural therapy, and psychological services.

Orders Made

  • Count 1 (aggravated indecent assault): Convicted; Community Correction Order for 12 months from 27 November 2019.
  • Count 2 (aggravated indecent assault): Convicted; Community Correction Order for 18 months from 27 November 2019.
  • Sequence 1 (use carriage service to solicit child pornography): Convicted; Conditional Release Order (good behaviour bond) for 12 months from 27 November 2019, under s 20(1)(a) Crimes Act (Cth).
  • Sequence 2 (use carriage service to transmit indecent communication to person under 16): Convicted; Conditional Release Order (good behaviour bond) for 8 months from 27 November 2019, under s 20(1)(a) Crimes Act (Cth).
  • Conditions applicable to all orders: Must not commit any offence; must appear before the court if called upon; report to Community Corrections at Goulburn within 7 days; obey all reasonable directions of supervisor; engage in cognitive behavioural therapy to address offending behaviour; engage with psychological services including a CSNSW psychologist.
  • Form 1 matters certified as taken into account.
  • Non-compliance with any condition may result in the matter returning to court for re-sentencing.

Key Takeaways

  • A late guilty plea entered on the first day of trial attracted only a 5% utilitarian discount, reflecting the limited utilitarian value to the justice system of such a late concession.
  • Youth remains a significant mitigating consideration in NSW sentencing, capable of supporting non-custodial outcomes even for serious sexual offences carrying lengthy maximum penalties and standard non-parole periods.
  • Where a young offender has diagnosed cognitive or behavioural conditions and limited insight into offending, the sentencing court may treat rehabilitation as a primary sentencing objective and structure orders around therapeutic supervision rather than imprisonment.
  • The District Court imposed Community Correction Orders for state offences and separate conditional release orders under Commonwealth legislation for the federal carriage service offences, reflecting the distinct sentencing regimes that apply when both state and federal charges are sentenced together.
  • Conducting a police covert online operation and obtaining admissions at a subsequent search warrant did not prevent conviction or sentencing on the carriage service charges, even where the offender denied active use of the relevant platform.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8 (Community Correction Orders)
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(iv) (use carriage service to solicit child pornography material); s 474.27A (use carriage service to transmit indecent communication to person under 16)
- Crimes Act 1914 (Cth), s 20(1)(a) (conditional release orders for federal offences)

Cases cited: No cases were cited in the portions of the judgment provided.