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District Court 20 July 2021

R v Young (a pseudonym)

[2021] NSWDC 702

Sexual offences
CRIME ATTEMPT SEXUAL INTERCOURSE CHILD 10 TO <14 YEARS SENTENCING RELEVANT FACTORS ON SENTENCE DELAY SENTENCING CHILD OFFENDER AS AN ADULTS

Citation: R v Young (a pseudonym) [2021] NSWDC 702
Court: District Court of New South Wales
Date: 20 July 2021
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Steven Young, was 33 at the time of sentencing. The offences had been committed between approximately 2001 and 2003, when the offender was aged 14 to 16. The complainant, a pseudonymous relative, was between 10 and 16 during the period of offending.

Both the offender and the complainant had grown up in a profoundly dysfunctional household under the control of a grandfather who perpetrated serious physical and sexual violence against the adults and children living there. The complainant had previously been in Department of Community Services care and foster homes before being placed in this household. The offender himself had been physically and sexually abused in the same environment.

The complainant did not come to police attention until 2018. The offender was arrested in July 2020, initially denied the offences, and then entered early guilty pleas in the Local Court. The matter proceeded to sentence in the District Court in 2021, by which time the offender had no further sexual offences on his record.

  • How should sentencing principles apply when an adult is sentenced for serious sexual offences committed when the offender was himself a child?
  • What weight should be given to the offender's severely deprived background and his own status as a victim of abuse at the time of offending?
  • How should delay between offending and prosecution affect the approach to specific and general deterrence?
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole to parole period under the Crimes (Sentencing Procedure) Act 1999.
  • What discount applied for the utilitarian value of the early guilty plea?

Decision

His Honour acknowledged the deeply complex and interlocking sentencing considerations in this case. The offences were individually serious, involving the gross exploitation of a child's body. However, the court noted that the offending occurred within a household where sexual and physical violence had been normalised by the grandfather's abuse, and where both the complainant and the offender had been victims. The genesis of the offender's conduct was traced directly to the complete absence of sexual boundaries in that household.

The court found that general deterrence remained relevant: it must be plain that child sexual abuse is gravely wrong and will attract punishment. However, given the significant delay and the absence of any further sexual offending, specific deterrence was not a significant factor. The court also noted that had these matters surfaced in 2002 or 2003, they would likely have been dealt with in the Children's Court, a consideration that informed the overall approach to penalty. The court applied the principle from Engert v R that sentencing requires a discretionary judgment tailored to the individual circumstances, with no automatic consequences flowing from any particular factor.

Custodial sentences were found to be necessary to vindicate the dignity of the complainant and reflect the community's condemnation of such conduct. Nonetheless, the court held there could be no equivalence between this case and one involving an adult offender, or even a child who had not suffered the same deprivations. The early guilty pleas attracted the full 25% utilitarian discount under s 25D of the Crimes (Sentencing Procedure) Act 1999, and were also treated as evidence of the offender's acceptance of responsibility relevant to rehabilitation prospects. Special circumstances were found to exist, given the offender's multiple traumas, the need for post-release support, and the accumulation of sentences.

Orders Made

  • First count (sexual intercourse, oral): 1 year and 10 months imprisonment
  • Second count (sexual intercourse, digital penetration): 1 year and 10 months imprisonment
  • Third count (attempted sexual intercourse): 1 year and 6 months imprisonment
  • Aggregate sentence: 3 years' imprisonment, commencing 9 February 2021
  • Non-parole period: 1 year and 6 months, expiring 8 August 2022
  • Parole period: 1 year and 6 months, from 9 August 2022 to 8 February 2024
  • Special circumstances found, resulting in a parole period proportionally longer than the statutory norm

Key Takeaways

  • The District Court confirmed that sentencing an adult for offences committed during childhood requires a genuinely individualised analysis, with no automatic weight attached to any single factor, consistent with the principle in Engert v R (1995) 84 A Crim R 67.

  • Where significant delay exists and the offender has no subsequent sexual offending history, specific deterrence may properly be given reduced weight, even for serious child sexual offences.

  • An offender's own experience of abuse and sexual violence during the period of offending is a relevant mitigating consideration, though it cannot displace the need for custodial sentences that vindicate the victim's dignity and reflect community condemnation.

  • Early guilty pleas in the Local Court, which spared the complainant from giving evidence, attracted the full 25% utilitarian discount under s 25D of the Crimes (Sentencing Procedure) Act 1999 and were treated as indicative of genuine acceptance of responsibility.

  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established where the offender faced multiple psychological traumas requiring extended post-release support, justifying an extended parole period relative to the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66(1), 66D(1), 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 37
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Procedure Act 1986 (NSW) (Form 1 provisions)

Cases
- Engert v R (1995) 84 A Crim R 67
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Clarke-Jeffries v R [2019] NSWCCA 56
- KT v R [2008] NSWCA 51; (2008) 182 A Crim R 571