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District Court 1 September 2021

R v ROK

[2021] NSWDC 448

Sexual offences
CRIME SEXUAL INTERCOURSE WITH CHILD UNDER 10 YOUNG OFFENDER PLEA OF GUILTY MILD INTELLECTUAL DISABILITY SUBJECT TO CONDITIONAL LIBERTY

Citation: R v ROK [2021] NSWDC 448
Court: District Court of New South Wales
Date: 1 September 2021
Judge: Lerve DCJ

Background

The offender, referred to as ROK, was 15 years old at the time of the offending and 16 at sentence. On 11 August 2020 at a residential address in Wagga Wagga, he committed a series of serious sexual offences against three young children. Two of the victims were brothers aged six and eight; the third was an 11-year-old neighbour.

ROK pleaded guilty to three counts of sexual intercourse with a child under 10 years of age (contrary to s 66A(1) of the Crimes Act 1900) and one count of inciting a child aged between 10 and 16 to sexually touch him (contrary to s 66DB(b) of the Crimes Act). The pleas were entered in the Wagga Wagga Children's Court on 7 April 2021 and adhered to at the District Court sentence hearing on 27 July 2021.

ROK had a documented history of mild intellectual disability, diagnosed in 2008 and confirmed again in 2016. By 2020 testing, his functioning was rated as extremely low across all domains. He also met diagnostic criteria for ADHD, oppositional defiant disorder, and conduct disorder, a combination associated with significantly poor long-term outcomes.

  • Whether the standard non-parole period for s 66A(1) offences applied to a juvenile offender
  • What sentencing principles govern juvenile offenders charged with serious children's indictable offences
  • How the offender's intellectual disability and co-morbid conditions should be weighed in sentencing
  • How to structure an aggregate sentence where multiple offences involved different victims and different conduct
  • Whether special circumstances existed justifying a non-parole period below the statutory default ratio

Decision

Lerve DCJ confirmed that the three s 66A(1) offences were serious children's indictable offences requiring determination "according to law," meaning they attracted adult sentencing provisions. However, the standard non-parole period of 15 years did not apply because the offender was a juvenile. The fourth charge, inciting sexual touching, was not a serious children's indictable offence, but no submission was made to have it dealt with otherwise.

The court applied established principles for juvenile offenders, drawing on cases including BP v R, R v AJP, and DPP (Cth) v De La Rosa. These principles emphasise rehabilitation, recognise the reduced moral culpability of young offenders, and acknowledge that sentences for juveniles will be significantly lower than for even young adult offenders. The Bugmy principles were also engaged, acknowledging the relevance of the offender's background and disadvantage to his moral culpability, though the court's reasons on this were not reproduced in full in the available text.

ROK's mild intellectual disability, ADHD, oppositional defiant disorder, and conduct disorder were treated as mitigating factors reducing his moral culpability. His poor prognosis for improvement into adulthood was noted but did not override the rehabilitative focus of juvenile sentencing. His early plea of guilty attracted a full 25% utilitarian discount.

The court found special circumstances justifying a non-parole period of 50% of the total sentence (rather than the default two-thirds ratio). The extended balance of term was designed to allow for adequate supervision on release, a matter the court emphasised in the strongest terms. An aggregate sentence was imposed rather than separate consecutive sentences, with the court setting out indicative individual sentences to make the structure transparent.

Orders Made

  • ROK was convicted on all four counts.
  • An aggregate sentence of 4 years was imposed, with a non-parole period of 2 years.
  • The non-parole period commenced 18 August 2020 and expires 17 August 2022; the balance of term runs from 18 August 2022 to 17 August 2024.
  • Special circumstances were found, resulting in a non-parole period of 50% of the total sentence.
  • Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, the court directed that the sentence be served in a juvenile justice institution.
  • Release to parole at the expiration of the non-parole period was recommended, subject to careful and strict supervision.
  • Copies of Dr Collins's psychological report, the Juvenile Justice Background Report, and Exhibit 3 were directed to be attached to the warrant accompanying the offender into custody.

Key Takeaways

  • The standard non-parole period under the Crimes Act 1900 for s 66A(1) offences does not apply to juvenile offenders; sentencing courts must exercise their discretion guided by principles specific to young offenders.
  • Juvenile sentencing principles place significant weight on rehabilitation and recognise that a young offender's moral culpability is generally lower than that of an adult committing equivalent conduct, producing sentences that may appear markedly lower than the statutory maximum when viewed in isolation.
  • An intellectual disability, particularly when combined with co-morbid neurodevelopmental disorders, is a relevant mitigating factor going to moral culpability, even where the prognosis for rehabilitation is poor.
  • Where an offender pleads guilty at the earliest available opportunity, a full 25% utilitarian discount applies to reflect the value of that plea to the criminal justice system.
  • Special circumstances permitting a non-parole period below the default two-thirds ratio may be found where the need for extended post-release supervision is particularly acute, as the District Court found here given the offender's age, disability, and the seriousness of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66DB(b)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 19
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Jolly v R [2013] NSWCCA 76
- MLP v R (2006) 164 A Crim R 93
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Paul Campbell (a pseudonym) v R [2018] NSWCCA 87
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v BA [2014] NSWCCA 148
- R v Gavel [2014] NSWCCA 56
- R v KT [2008] NSWCCA 51
- R v MW [2019] NSWDC 307
- R v PGM [2006] NSWCCA 310
- R v Tuala [2015] NSWCCA 8
- Tepania v R [2018] NSWCCA 247
- Thammavongsa v R (2015) 251 A Crim R 342