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Court of Criminal Appeal 10 June 2020

LS v R

[2020] NSWCCA 120

Sexual offences
CRIMINAL LAW SENTENCE APPEAL EXCEPTIONAL SUBJECTIVE CIRCUMSTANCES YOUTH, ADHD AND AUTISM SERIOUS OFFENCE OFFENDING

Citation: LS v R [2020] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 10 June 2020
Judge(s): Simpson AJA, Rothman J, Bellew J

Background

The applicant, referred to as LS, was 16 years old when he committed the offences and 18 years old (nearly 19) when sentenced in the District Court in March 2019. He pleaded guilty at the earliest opportunity to two offences: producing child abuse material (including sharing images via online chat groups) contrary to s 91H(2) of the Crimes Act 1900 (NSW), and sexual intercourse with a child under 10 years of age (a four-year-old girl) contrary to s 66A of that Act, which carries a maximum penalty of life imprisonment.

The sentencing judge in the District Court imposed an aggregate sentence of 6 years and 9 months' imprisonment with a non-parole period of 4 years, both dates running from August 2017. The court ordered the sentence be served in a juvenile facility, but the applicant was later moved to a protected section of an adult prison following assaults upon him.

LS appealed on the sole ground that the sentence was manifestly excessive, pointing to powerful subjective factors: his age at the time of offending, a diagnosis of autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD), and uncontested expert psychological evidence that he had no paedophilic or paraphilic tendencies and little to no risk of similar reoffending.

  • Whether the aggregate sentence of 6 years and 9 months was manifestly excessive given the applicant's youth, diagnosed disabilities, and expert psychological evidence about his reoffending risk.
  • How the established principles governing the sentencing of young offenders applied to an offence of considerable gravity involving conduct that could otherwise be characterised as adult-like behaviour.
  • The weight to be given to uncontested expert evidence that the applicant had effectively outgrown the interest that drove his offending, and that his offending was connected to immaturity and grooming rather than paedophilic disorder.

Decision

The Court of Criminal Appeal granted leave to appeal and found the original sentence was manifestly excessive, concluding it fell outside the legitimate range of discretion available to the sentencing judge. All three judges agreed that, while the objective seriousness of the offences was very high, the combination of subjective factors in this case was wholly exceptional.

The applicant's age at the time of offending directly engaged the principles applicable to young offenders set out in KT v R [2008] NSWCCA 51. Those principles recognise that considerations of general deterrence and retribution carry less weight when sentencing young offenders, that cognitive and emotional immaturity can reduce moral culpability, and that rehabilitation is the primary sentencing objective for this cohort. The applicant's ASD and ADHD were found to have materially contributed to his vulnerability to online grooming and his need for social validation from internet contacts, further reducing his moral culpability.

The uncontested evidence of the psychologist, Dr Lennings, was central to the appeal. Dr Lennings found that the applicant had been groomed by members of an online child abuse network and that his offending stemmed from a need for approval and validation rather than paedophilic attraction. By the time of sentencing, Dr Lennings assessed that the applicant had effectively outgrown his interest in the type of material involved. This evidence substantially diminished both the need for specific deterrence and the weight that might otherwise be placed on the gravity of the offences in setting the sentence.

Rothman J (with whom Simpson AJA and Bellew J agreed) held that the sentencing judge had not given adequate weight to this exceptional combination of factors, constituting manifest error. The Court resentenced LS to an aggregate term of 4 years and 9 months' imprisonment with a non-parole period of 2 years and 9 months. All judges emphasised that this outcome was fact-specific and should not be treated as setting any benchmark for future sentencing in child sexual offence cases.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed by the District Court on 1 March 2019 quashed.
  • LS resentenced to an aggregate term of 4 years and 9 months' imprisonment, commencing 18 August 2017 and concluding 17 May 2022, with a non-parole period of 2 years and 9 months, concluding 17 May 2020.
  • Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed by the Local Court at Wagga Wagga on 30 March 2020 for assault on a law officer (not a police officer) varied to commence 18 December 2019 and conclude 17 June 2020.
  • First eligible for release on parole: 17 June 2020.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principles in KT v R apply with full force even where a young offender has committed a very serious offence, though those principles may be moderated where the conduct closely resembles adult behaviour or involves considerable gravity.
  • Uncontested expert psychological evidence showing no paedophilic tendencies and minimal risk of reoffending was a significant factor in reducing the weight attributed to general and specific deterrence, even for a sexual offence against a four-year-old child.
  • A diagnosed neurodevelopmental condition (ASD combined with ADHD) can materially reduce a young offender's moral culpability where there is a demonstrated connection between the condition and the offending conduct, particularly vulnerability to grooming.
  • The decision expressly characterises the outcome as turning on a wholly exceptional combination of subjective circumstances and cautions against treating it as a sentencing benchmark for child sexual offence cases.
  • Where a sentencing court fails to give adequate weight to exceptional subjective factors taken together, that failure can constitute manifest error sufficient to warrant the appellate court resentencing the offender.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 18
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 56, 59
- Evidence Act 1995 (NSW), s 4(2), (3)

Cases:
- BM v R [2019] NSWCCA 223
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- GBB v R [2019] NSWCCA 296
- Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- MJ v R; CPD v R [2010] NSWCCA 52
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Paul Campbell v R [2018] NSWCCA 87
- R v AA [2017] NSWCCA 84
- R v AN [2005] NSWCCA 239
- R v LNT [2005] NSWCCA 307
- R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unreported)