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District Court 3 July 2020

R v LP

[2020] NSWDC 346

Sexual offences
SEXUAL INTERCOURSE WITH A CHILD OFFENDER BETWEEN THE AGE OF 15 17 FOR THE MAJORITY OF OFFENCES SIGNIFICANT MENTAL HEALTH ISSUES NO PRIOR CRIMINAL RECORD

Citation: R v LP [2020] NSWDC 346
Court: District Court of New South Wales
Date: 3 July 2020
Judge: Weinstein SC DCJ

Background

The offender, LP, was 21 years old at the time of sentencing. He faced seven offences of a sexual nature committed against two child victims: his biological sister (OP) and her best friend (OD), both born in March 2005. The offending spanned several years and included sexual intercourse, aggravated sexual intercourse, and acts of indecency.

For counts 1 to 6, LP was between 15 and 17 years old at the time of the offences, making him a "child" within the meaning of the Children (Criminal Proceedings) Act 1987. Count 7, which involved an act of indecency, was committed when LP was 19 years old. The offending involved physical force, threats of burning with a cigarette lighter, and repeated exploitation of the victims in concealed locations near the family home.

LP pleaded guilty to all counts. The parties agreed that a full-time custodial sentence was the only appropriate response overall, though the Crown conceded that count 7, if considered in isolation, would not have crossed the threshold requiring imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether, and to what extent, LP's status as a child at the time of counts 1 to 6 reduced the appropriate sentence under section 6 of the Children (Criminal Proceedings) Act 1987
  • Whether the standard non-parole period provisions applied, given the offender's age at the time of the offences
  • How significant mental health issues and the absence of a prior criminal record should be weighed in sentencing
  • How the guilty plea discount should be applied across each count
  • Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the head sentence

Decision

The District Court was required to sentence counts 1 to 6 with direct reference to section 6 of the Children (Criminal Proceedings) Act 1987, which sets out principles specific to child offenders. These principles include the child's right to be heard, the recognition of immaturity and dependency, the desirability of preserving education and family ties, and the importance of reintegration. The court noted that standard non-parole periods did not apply to any of counts 1 to 6, by operation of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999, because the offending occurred before LP turned 18.

The court worked through individual sentence components for each count before arriving at an aggregate term. Before applying the guilty plea discount, the indicative sentences ranged from 1 year and 4 months for the aggravated indecent assault counts up to 3 years for each of the more serious sexual intercourse counts. After the discount for the guilty plea, those effective sentences reduced to between 12 months and 2 years and 3 months per count.

Weinstein SC DCJ found special circumstances warranting a departure from the standard statutory ratio between the non-parole period and the total term of imprisonment. Two factors supported this finding: the application of section 6 of the Children's Act (given that the bulk of the offending occurred during LP's adolescence), and LP's significant mental health issues. The court imposed an aggregate sentence of 3 years and 3 months, with a non-parole period of 14 months. That non-parole period is notably shorter than the one-third minimum ordinarily implied by the standard ratio, reflecting both the youth-related principles and the identified special circumstances.

Orders Made

  • LP was convicted of:
  • Sexual intercourse with a person aged between 10 and 14 (s 66C(1) Crimes Act 1900) (counts 1, 5, and 6)
  • Aggravated indecent assault of a child under 16 (s 61M(2) Crimes Act 1900) (counts 2 and 3)
  • Aggravated sexual intercourse with a person aged between 10 and 14 (s 66C(2) Crimes Act 1900) (count 4)
  • Committing an act of indecency towards a person under 16 (s 61N(1) Crimes Act 1900) (count 7)
  • Aggregate term of imprisonment: 3 years and 3 months, commencing 3 July 2020 and expiring 2 October 2023
  • Non-parole period: 14 months, expiring 2 September 2021

Key Takeaways

  • Where a child offender is sentenced for offences committed before the age of 18, section 6 of the Children (Criminal Proceedings) Act 1987 requires the court to actively apply youth-specific principles, including immaturity, dependency, and the importance of rehabilitation and reintegration.
  • Section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 operates to exclude standard non-parole periods where the offending occurred before the offender turned 18, even when sentencing takes place in adulthood.
  • The District Court found that youth-related principles under the Children's Act, combined with significant mental health issues, constituted special circumstances justifying a substantial departure from the statutory ratio between the non-parole period and the total head sentence.
  • A guilty plea attracted a meaningful discount across all counts, reducing indicative sentences by roughly one quarter in most instances.
  • No prior criminal record and significant mental health difficulties were treated as relevant mitigating factors, even where the gravity of the offending required a full-time custodial sentence.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 66C(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 54D(3)

Cases
- Attorney General's Application (No 1) (2002) 56 NSWLR 146
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- R v Israil [2002] NSWCCA 255
- R v MAK and MSK (2006) 167 A Crim R 159
- Watts v R [2007] NSWCCA 153