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District Court 31 July 2020

R v KL

[2020] NSWDC 409

Sexual offences
SENTENCING — CHILD OFFENDER PROFOUND DISADVANTAGE

Citation: R v KL [2020] NSWDC 409
Court: District Court of New South Wales
Date: 31 July 2020
Judge: Weinstein SC DCJ

Background

The offender, KL, was 14 years and 3 months old at the time of the offences. The victim was her 5-year-old biological half-brother. Both were living together with their mother, grandfather, and uncle.

In January 2019, KL was in an online relationship with a 16-year-old male, identified as AB. AB repeatedly and persistently pressured KL to perform sexual acts and send him recordings. On two occasions KL performed oral sex on the victim and filmed those acts on her mobile phone, sending the videos to AB via Facebook Messenger. KL immediately disclosed what she had done to her mother. AB subsequently forwarded one of the videos to a third party, which led to a police report.

KL was arrested and charged in February 2019 at age 14. By the time of sentencing she was 15 years and 9 months old. She faced two counts of sexual intercourse with a child under 10 years (carrying a maximum of life imprisonment) and two counts of disseminating child abuse material (maximum 10 years). Two further counts of producing child abuse material were placed on Form 1s, meaning the court took them into account without recording separate convictions.

  • Whether sentencing should proceed "according to law" under the Children (Criminal Proceedings) Act 1987, given the offences were committed when KL was a child
  • How to apply the principles in s 6 of the Children (Criminal Proceedings) Act 1987, which require particular weight to be given to rehabilitation, reintegration, and the offender's dependency and immaturity
  • The appropriate weight to be given to KL's profound personal disadvantage, including her own history of sexual abuse, physical abuse, social isolation, and mental health difficulties
  • The significance of the coercive pressure exerted by AB in reducing KL's moral culpability
  • Whether KL should be exempted from registration as a registrable person under the Child Protection (Offenders Registration) Act 2000

Decision

The court determined that all offences should be dealt with "according to law" under the Children (Criminal Proceedings) Act 1987. The two s 66A(1) offences were serious children's indictable offences requiring that approach, and the court exercised its discretion under s 18(1A) to deal with the s 91H(2) offences the same way, as they arose from the same facts.

The court gave detailed consideration to KL's background. Expert psychological and forensic evidence established that KL had herself been a victim of sexual abuse and physical abuse, had been socially isolated, had experienced significant mental health difficulties, and had a very limited criminal history. The court accepted that AB's sustained and repeated pressure was a significant feature that reduced KL's moral culpability, though it did not eliminate it entirely.

The sentencing principles in s 6 of the Children's Act directed the court's attention to rehabilitation, reintegration, and avoiding disruption to education and family ties. The court weighed the objective seriousness of offences carrying a maximum of life imprisonment against the offender's age, immaturity, disadvantaged background, immediate disclosure to her mother, and genuine prospects of rehabilitation. The court concluded that a non-custodial sentence was appropriate, structured around intensive supervision and a detailed treatment plan.

On the question of sex offender registration, the court made a formal declaration that KL was not to be treated as a registrable person under the Child Protection (Offenders Registration) Act 2000. This exemption reflects the statutory scheme's capacity to depart from mandatory registration where the offender is a child and the circumstances warrant it.

Orders Made

  • KL convicted of two counts of sexual intercourse with a child under 10 years (s 66A(1), Crimes Act 1900) and two counts of disseminating child abuse material (s 91H(2), Crimes Act 1900), with two counts of producing child abuse material taken into account on Form 1s
  • Community Corrections Order of 3 years imposed for each offence, all to be served concurrently, running from 31 July 2020 to 30 July 2023
  • Standard conditions: no further offending; appear before court if called upon
  • Additional conditions:
  • Accept supervision of Youth Justice and comply with all reasonable directions and referrals
  • Comply with the treatment plan in the Youth Justice report dated 8 July 2020, covering psychoeducation on sexual consent, managing sexual urges, social skills, assertiveness, offence pathway understanding, addressing KL's own experiences of sexual abuse, reducing social isolation, NDIS speech assessment follow-up, and social worker involvement in counselling
  • Accept all Youth Justice directions regarding education and/or employment
  • Not associate with AB
  • Reside as directed by the Department of Communities and Justice
  • Report by telephone to Campbelltown Youth Justice Office within 7 days (by 7 August 2020)
  • Declaration that KL is not to be treated as a registrable person under the Child Protection (Offenders Registration) Act 2000

Key Takeaways

  • Where a child offender is sentenced for serious children's indictable offences, the principles in s 6 of the Children (Criminal Proceedings) Act 1987 operate as a structured framework requiring particular attention to rehabilitation, reintegration, and the offender's immaturity, alongside the gravity of the offending and its impact on the victim.

  • Coercive pressure from a third party can constitute a meaningful mitigating factor that reduces the offender's moral culpability, even where the offences are objectively very serious and the victim is extremely young.

  • Profound personal disadvantage, including a history of sexual victimisation, physical abuse, and mental health difficulties, is a relevant sentencing consideration; the District Court here treated KL's background as significantly bearing on both culpability and the pathway to rehabilitation.

  • A non-custodial sentence is available even for offences carrying a maximum of life imprisonment, where the combination of the offender's age, background, immediate disclosure, remorse, and rehabilitation prospects justifies that outcome under the children's sentencing framework.

  • Under the Child Protection (Offenders Registration) Act 2000, courts retain the power to declare that a child offender is not to be treated as a registrable person; this court exercised that power in KL's favour having regard to all the circumstances of the case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 91H(2)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 18(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 54D(3)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1)
- Campbell v R [2018] NSWCCA 87
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Jonson v R [2016] NSWCCA 286
- KT v R (2008) 182 A Crim R 571
- Markarian v The Queen [2005] HCA 25
- Minehan v R (2010) 201 A Crim R 243
- MS2 v The Queen (2005) 158 A Crim R 93
- Muldrock v The Queen (2011) 244 CLR 120
- Perkins v R [2018] NSWCCA 62
- R v Adamson (2002) 132 A Crim R 511
- R v AGR (unreported, NSWCCA, 24 July 1998)
- R v C (unreported, NSWCCA, 12 October 1989)
- R v E (a child) (1993) 66 A Crim R 14
- R v GDP (1991) 53 A Crim R 112
- R v Hearne (2001