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District Court 3 December 2019

R v KL

[2019] NSWDC 731

Sexual offences
SENTENCE CARNAL KNOWLEDGE JUVENILE DETENTION CENTRE PROTECTED CUSTODY SEX OFFENDER PROGRAMS PROSPECTS OF REHABILITATION

Citation: R v KL [2019] NSWDC 731
Court: District Court of New South Wales
Date: 3 December 2019
Judge(s): Priestley SC DCJ

Background

The offender, identified only as KL, was 16 years old at the time he committed two offences of sexual intercourse with a child under 10, contrary to section 66A(1) of the Crimes Act 1900. The victim was his seven-year-old half-sister. The offences involved both penile/vaginal intercourse and digital intercourse. Both the offender and the victim were children at the time. The proceedings were subject to strict anonymisation orders under section 578A of the Crimes Act and section 15A of the Children's (Criminal Proceedings) Act.

At the time of sentencing, the offender was 19 years old. He had pleaded guilty to both counts on indictment in the District Court. The court had before it a series of Juvenile Justice reports relevant to the offender's background, treatment needs, and prospects of rehabilitation.

The maximum penalty for each offence is life imprisonment, with a standard non-parole period of 15 years. However, because the standard non-parole period applies only to adult offenders, it had no direct operation in this case.

  • Whether the section 5 threshold of the Crimes (Sentencing Procedure) Act (CSPA) was crossed, meaning whether no penalty other than imprisonment was appropriate.
  • Which sentencing options were available under the intersection of the CSPA, the Children's (Criminal Proceedings) Act (CCPA), and the Children (Community Service Orders) Act (CCSO).
  • Whether a community correction order (CCO) or community service order, alone or in combination, was a proportionate response to the offending.
  • Whether the offender could serve any custodial sentence in a juvenile detention facility, given that he was over 18 at the time of sentencing, and whether the "special circumstances" test under section 19(4) of the CCPA was satisfied.
  • What aggregate sentence and non-parole period were appropriate, having regard to the offender's youth, his prospects of rehabilitation, and the seriousness of the offending.

Decision

The sentencing framework

The court undertook a detailed analysis of the interaction between three pieces of legislation. The CCPA applied because the offender was under 21 when charged and had been a child when the offences were committed. Because the offences carried a maximum of life imprisonment, they were "serious children's indictable offences," requiring the court to deal with the offender "according to law" under the CSPA.

An intensive correction order was unavailable because the offences fell within the definition of "prescribed sexual offences" under section 67 of the CSPA, which prohibits ICOs in such cases. The contested question was whether a CCO, a community service order, or some combination of the two could serve as an adequate alternative to imprisonment. The court accepted the Crown's position that such alternatives did not adequately reflect the gravity of the offending. Even a split approach, with a CCO for one count and a community service order under the CCSO for the other, was found to be disproportionate.

Detention in a juvenile facility

Because the offender was over 18 at sentencing, he was not automatically eligible to serve his sentence in a juvenile detention centre. Section 19(3) of the CCPA required the court to be satisfied of "special circumstances" under section 19(4), including that the only suitable educational, vocational, or therapeutic programs were those available in detention centres. The Crown conceded this ground was established, and the Juvenile Justice reports supported that finding. The court was therefore satisfied that the sentence should be served in a juvenile detention facility.

Quantum of sentence

The court imposed an aggregate sentence of two and a half years, comprising an indicative sentence of two years for the penile/vaginal intercourse count and one year for the digital intercourse count. The court emphasised that, consistent with principles applicable to child offenders, these sentences were markedly lower than they would have been for an adult. A non-parole period of 15 months was set, departing from the statutory ratio under section 44 of the CSPA. Special circumstances were found both under section 19 of the CCPA (age, therapeutic program needs, and the timing required to keep the offender in a juvenile facility) and under the CSPA (first time in custody, age, and need for ongoing supervised rehabilitation).

Orders Made

  • KL was convicted of both offences on the indictment.
  • An aggregate sentence of two and a half years imprisonment was imposed, commencing 3 December 2019 and expiring 2 June 2022.
  • A non-parole period of 15 months was set, commencing 3 December 2019 and expiring 2 March 2021.
  • The sentence is to be served in a juvenile detention facility.
  • The earliest date for release is 2 March 2021.
  • The court noted that the sentence was intended to enable the offender to access the programs identified in the Juvenile Justice reports.

Key Takeaways

  • The District Court confirmed that the standard non-parole period for offences under section 66A(1) of the Crimes Act has no operative effect where the offender was a child at the time of the offending, though the maximum sentence of life imprisonment still applies.
  • Under section 67 of the CSPA, an intensive correction order is categorically unavailable for prescribed sexual offences involving victims under 16, regardless of the offender's age at the time of the offending.
  • Where the CCPA, CSPA, and CCSO intersect, a community correction order imposed under the CSPA cannot include a community service work condition for an offender to whom the CCSO applies, by operation of section 8(2) of the CSPA.
  • A juvenile offender who is over 18 at the time of sentencing requires a specific finding of "special circumstances" under section 19(3) and (4) of the CCPA before being sentenced to serve a term in a juvenile detention facility, including satisfaction that only detention centre programs meet the offender's therapeutic needs.
  • Sentencing principles applicable to child offenders can produce significantly shorter custodial terms than would apply to adult offenders convicted of equivalent offences, reflecting the greater weight given to rehabilitation and the reduced culpability of juvenile offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(1), s 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 8, 44, 67
- Children's (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A, 16, 17, 19
- Children (Community Service Orders) Act 1987 (NSW), ss 4, 5
- Children (Detention Centres) Act 1987 (NSW)

Cases
- BM v R [2019] NSWCCA 223
- Muldrock v R [2011] HCA 39
- Paul Campbell v R [2018] NSWCCA 87
- R v AA [2017] NSWCCA 84
- Tepania v R [2018] NSWCCA 247