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District Court 10 September 2021

R v Andrew Button (a pseudonym)

[2021] NSWDC 829

Sexual offences

Citation: R v Andrew Button (a pseudonym) [2021] NSWDC 829
Court: District Court of New South Wales
Date: 10 September 2021
Judge: Sutherland SC DCJ

Background

The offender, referred to by the pseudonym Andrew Button, was 17 years old at sentencing, having been 13 at the time of the offending. Following a jury trial, he was convicted by majority verdict of one count of sexual intercourse with a child under 10 years of age, contrary to section 66A(1) of the Crimes Act 1900 (NSW). The victim, a 5-year-old boy referred to as Michael Black, was a family friend's child.

The offending occurred during an Easter long-weekend stay at a holiday rental property in Pokolbin, in the Hunter Valley. Andrew had been invited as a companion for another 12-year-old boy. During the evening, circumstances arose in which Andrew and the 5-year-old were briefly alone in a tent on the property. The jury accepted, beyond reasonable doubt, that Andrew performed an act of sexual intercourse on the child, having induced the child's compliance through a false claim about his older sister. The child's father overheard Andrew telling the child not to say anything as he approached the tent. Andrew was first charged in September 2018, approximately 3.5 years before the sentencing date.

The case required the court to sentence a juvenile offender for a very serious offence, in circumstances involving significant delay, meaningful rehabilitation, and a range of complex personal background factors.

  • What sentence is appropriate for a juvenile offender convicted of a serious child sexual offence committed when the offender was 13 years old?
  • What weight should be given to the substantial delay between the offending and sentencing, and whether that delay operated in the offender's favour?
  • What relevance did the offender's demonstrated rehabilitation have to the sentencing exercise?
  • Whether the standard non-parole period provisions applied to a juvenile offender (they do not, by operation of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999)?
  • Whether the offender should be exempted from registration as a "registrable person" under the Child Protection (Offenders Registration) Act 2000 (NSW)?

Decision

The court accepted a substantial body of subjective material in the offender's favour. This included expert reports from a consultant paediatrician, two clinical psychologists, and a detailed assessment from Youth Justice NSW. The reports and Youth Justice assessments consistently pointed to genuine and significant rehabilitation in the years since the offending. The court also considered the offender's difficult personal background, including an absent father and engagement with counselling for depression as a young child.

The delay of approximately 3.5 years between the offending and sentencing was a significant factor. The court considered the established principles on delay in sentencing, recognising that where an offender has made genuine progress during the intervening period, delay can operate to moderate the sentence that would otherwise be imposed. The court noted the relevant chronology of charging and proceedings in assessing how much weight delay should receive.

Sutherland SC DCJ determined that, rather than imposing a sentence of imprisonment, the appropriate outcome was a Community Correction Order for a term of three years. The order included a supervision condition requiring the offender to submit to supervision by a Juvenile Justice officer for its duration. The court was satisfied that this disposition reflected the primacy of rehabilitation for juvenile offenders, the offender's progress since the offending, the delay, and all other relevant sentencing considerations.

On the question of the child protection register, the court exercised its discretion under section 3C(1) of the Child Protection (Offenders Registration) Act 2000 to order that Andrew not be treated as a registrable person. The court was satisfied, having regard to the psychological evidence and the Youth Justice assessment, that the offender did not pose a risk to the lives or sexual safety of children.

Orders Made

  • Non-publication order pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), suppressing the names of the offender and victim and any identifying features.
  • The offender is convicted.
  • Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of a sentence of imprisonment, a Community Correction Order is imposed for a term of three years from 10 September 2021.
  • Standard conditions apply: no further offending; to appear before the court if called upon during the order.
  • Additional condition: supervision by a Juvenile Justice officer for the duration of the order.
  • Order pursuant to section 3C(1) of the Child Protection (Offenders Registration) Act 2000 that the offender is not to be treated as a registrable person for the purposes of that Act.

Key Takeaways

  • Under section 54D(3) of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period does not apply where the offender was a juvenile at the time of the offence, even where the charge carries a maximum of life imprisonment.
  • Significant delay between offending and sentencing, particularly where a juvenile offender has undergone genuine rehabilitation in the intervening period, is a recognised mitigating factor that can substantially affect the sentence ultimately imposed.
  • The District Court confirmed that rehabilitation holds particular weight in the sentencing of juvenile offenders, consistent with the principles governing the sentencing of young persons under New South Wales law.
  • A court retains discretion under section 3C(1) of the Child Protection (Offenders Registration) Act 2000 to order that a convicted offender not be treated as a registrable person, where satisfied on the evidence that the offender does not pose a risk to the sexual safety of children.
  • Conviction for an offence under section 66A(1) of the Crimes Act 1900 does not inevitably result in registration as a child sex offender, particularly where the offender was a juvenile at the time and where expert and departmental evidence supports a finding of low ongoing risk.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8(1), 54D(3)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C(1)
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Cases:
- BM v R [2019] NSWCCA 223
- El Cheikh v R [2016] NSWCCA 225
- LS v R [2020] NSWCCA 12
- Mill v The Queen (1988) 166 CLR 59
- MS2 & Ors v Regina [2005] NSWCCA 397
- Paul Campbell (a pseudonym) v R [2018] NSWCCA 87
- R v AA [2017] NSWCCA 84
- R v Campbell (a pseudonym) [2017] NSWDC 359
- R v Cattell [2019] NSWCCA 297
- R v DN [2019] NSWDC 536
- R v DW (No 1) [2020] NSWDC 461
- R v Elliott and Blessington [2006] NSWCCA 305
- R v Ellis (1986) 6 NSWLR 603
- R v KL [2020] NSWDC 409
- R v Shore (1992) 66 A Crim R 37
- R v Spiers [2008] NSWCCA 107
- R v Tepania [2018] NSWCCA 247
- R v Todd [1982] 2 NSWLR 517
- RC v R [2020] NSWCCA 76
- RP v R [2015] NSWCCA 215