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District Court 18 September 2020

R v Warner (a pseudonym)

[2020] NSWDC 575

Sexual offences
CRIME AGGRAVATED INDECENT ASSAULT OF A CHILD ACQUITTALS AND CONVICTIONS SENTENCING RELEVANT FACTORS SENTENCE AFTER TRIAL DELAY

Citation: R v Warner (a pseudonym) [2020] NSWDC 575
Court: District Court of New South Wales
Date: 18 September 2020
Judge: Haesler SC DCJ

Background

The offender (referred to by the pseudonym Warner) was 14 years old when, between May 2012 and December 2012, he committed three aggravated indecent assaults against two young girls who were placed as foster children in his family's home. The victims, referred to as Alison (then aged approximately 13) and Kate (then aged approximately 8 to 9), were effectively his foster siblings. The offending occurred on a single occasion and involved Warner lying on top of Kate and, when Alison entered the room, sitting between both girls and rubbing their pubic areas over their clothing.

The victims did not disclose the conduct until mid-2016. Police interviewed them in September 2016, sought DPP advice in May 2017, and did not receive a response until November 2018. Warner was not charged until August 2019, by which time he had recently turned 21. He faced 13 counts in total. A jury acquitted him of 10 counts and found him guilty of 3 counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900.

Warner appeared before the District Court for sentencing on those three guilty verdicts.

  • How should a sentencing court weigh the significant delay between the offending (committed at age 14) and the proceedings (conducted when the offender was 21)?
  • Was the loss of the opportunity to be dealt with in the Children's Court a relevant mitigating factor?
  • What weight should be given to the offender's youth at the time of offending, his good character since, and the one-off nature of the conduct?
  • Whether it was appropriate to proceed to conviction, or whether a conditional release order without conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 was the correct disposition.
  • Whether Warner should be declared a registrable person under the Child Protection (Offenders Registration) Act 2000, or whether the court should exercise its discretion to declare otherwise.

Decision

Objective seriousness: Haesler SC DCJ assessed the offending as occupying the lower range of seriousness for offences of this type, but above a brief or incidental touching. The court noted the offending occurred in the family home where both girls were entitled to feel safe, and that Warner held a position of trust as their effective older brother. The offending against Kate was considered more objectively serious given the wider age gap between her and the offender. The defence submission that the complainants' lack of opposition reduced objective seriousness was rejected, given their ages, vulnerability as foster children, and evidence that they submitted reluctantly.

Delay and mitigating factors: The court applied principles from R v Todd and Mill v The Queen, recognising that sentencing after lengthy delay requires considerable flexibility. Because Warner had offended on a single occasion and ceased without formal intervention, the delay operated in his favour: it demonstrated his capacity for maturity, rehabilitation, and a pro-social life, and reduced the weight of general deterrence as a sentencing purpose. Importantly, the court found that had the matter been reported in 2012, it would in all probability have been dealt with in the Children's Court. The loss of that more rehabilitative pathway was treated as a mitigating factor, consistent with R v El Masri and Zreika v R.

Conditional release without conviction: Taking into account the relatively low level of the assaults, the offender's age and immaturity at the time, his otherwise good character since 2012, and his treatment needs, the court concluded it was inexpedient to record a conviction. Findings of guilt were made on counts 5, 10 and 11, but the offender was discharged on conditional release orders under s 10(1)(b) and s 9 of the Crimes (Sentencing Procedure) Act 1999.

Child protection register: The court declared that Warner was not a registrable person under the Child Protection (Offenders Registration) Act 2000. There was no evidence beyond the current offences that he posed a risk to children's lives or sexual safety, and given his age, immaturity, the isolated nature of the conduct, and his good character since 2012, the court found no utility in placing him on the register.

Orders Made

  • Findings of guilt entered on counts 5, 10, and 11 (aggravated indecent assault of a person under 16, domestic violence related).
  • Count 5: Without proceeding to conviction, offender discharged on a Conditional Release Order for 9 months.
  • Counts 10 and 11: Without proceeding to conviction, offender discharged on a Conditional Release Order for 1 year and 6 months.
  • Standard conditions applied to each order: no further offending; appear before the court if called upon.
  • Additional conditions applied to each order: report to Wollongong Community Corrections within 7 days; engage in psychological treatment as directed; engage in drug relapse prevention treatment as directed.
  • Declaration made that the offender is not a registrable person pursuant to the Child Protection (Offenders Registration) Act 2000.

Key Takeaways

  • Lengthy delay between child offending and adult prosecution can operate as a mitigating factor where, during the intervening period, the offender has demonstrated rehabilitation and a pro-social life, reducing the need for specific deterrence.
  • The loss of the opportunity to be dealt with in the Children's Court, which would have been the probable outcome had the matter been reported promptly, is a recognised mitigating factor in adult sentencing proceedings in NSW.
  • A finding of guilt does not inevitably require a conviction: under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, a court may discharge an offender on a conditional release order without recording a conviction where, among other considerations, the offending was isolated, the offender was very young at the time, and good character has been maintained since.
  • Under s 3C of the Child Protection (Offenders Registration) Act 2000, a court retains a discretion to declare that an offender is not a registrable person; the District Court exercised that discretion here, citing the offender's age at the time of offending, the isolated nature of the conduct, and his subsequent good character.
  • The absence of victim impact statements does not give rise to any inference that the offending had little or no impact: s 30E(5) of the Crimes (Sentencing Procedure) Act 1999 and findings from the Royal Commission into Institutional Responses to Child Sexual Abuse confirm that all forms of child sexual maltreatment carry significant risks for longer-term wellbeing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10(1)(b), 25AA, 30E(5), 54D(3)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C
- Children (Criminal Proceedings) Act 1987 (NSW), ss 17, 18
- Interpretation Act 1987 (NSW), s 33

Cases:
- Mill v The Queen (1988) 166 CLR 59
- R v Todd [1982] 2 NSWLR 517
- Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82
- Corby v R [2010] NSWCCA 146
- BP v R [2010] NSWCCA 159
- KT v R [2008] NSWCCA 51
- R v El Masri [2005] NSWCCA 167
- R v Gavel [2014] NSWCCA 56
- R v Nelson [2016] NSWCCA 130
- R v Hogan [2008] NSWCCA 43
- Magnuson v R [2013] NSWCCA 50
- R v Cattell [2019] NSWCCA 297
- Clarkson v R [2011] VSCA 152
- Dungay v R [2020] NSWCCA 209
- Howard v R [2019] NSWCCA 109
- Project Blue