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District Court 12 December 2022

R v JR

[2022] NSWDC 618

Sexual offences
CRIME SEXUAL INTERCOURSE CHILD UNDER 10 ALL COUNTS INVOLVED FELLATIO PORNOGRAPHY ADDICTION

Citation: R v JR [2022] NSWDC 618
Court: District Court of New South Wales
Date: 12 December 2022
Judge(s): Lerve DCJ

Background

The offender, who was 14 or 15 years of age at the time of the conduct, pleaded guilty to three counts of sexual intercourse with a child under 10 years of age, contrary to the Crimes Act 1900. The victim was his stepbrother, aged 8 or 9. The offending occurred between June 2017 and the victim's tenth birthday at the family home in a town in southern New South Wales.

All three counts involved fellatio. On the first occasion, the offender performed fellatio on the victim. On the second and third occasions, the offender compelled the victim to perform fellatio on him, in one instance offering PlayStation games as an inducement and in another pulling the victim into a bathroom. A Form 1 matter of aggravated indecent assault (the offender manually stimulating the victim's penis) was attached to count 4.

The offender entered his pleas on what would have been the first day of trial, following plea negotiations. By the time of sentencing, he was almost 20 years old, had no prior or subsequent offending, had completed a sex offender treatment program, and was enrolled in a university law degree.

Legal Issues

  • What findings could be made, to the requisite standard of proof, about the precise ages of the offender and victim at the time of offending, and how did those findings bear on objective seriousness?
  • What was the objective seriousness of each count, assessed against other offences of the same type?
  • What discount applied for the utilitarian value of the guilty pleas, given the offender was a juvenile at the time of offending (meaning the Early Appropriate Guilty Plea provisions did not apply)?
  • How should the principles governing juvenile offenders, including section 6 of the Children (Criminal Proceedings) Act 1987, operate in a sentencing exercise for serious child sexual offences?
  • Whether a causal connection existed between the offender's mental health difficulties and pornography use, on the one hand, and the offending behaviour, on the other.
  • Whether the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 was met so as to require a sentence of full-time custody, or whether a Community Correction Order was within the appropriate sentencing range.

Decision

Issue 1: Age findings and objective seriousness

The court could not be satisfied beyond reasonable doubt that the offender was older than 14 or that the victim was younger than 9 at the time of any offence (at [25]). However, the court noted the outcome would not have differed had the ages been found differently (at [25]). Applying authorities including R v AA [2017] NSWCCA 84 and BM v R [2019] NSWCCA 223, the court confirmed that the age of a juvenile offender is a factor that informs objective seriousness, not merely the subjective mix (at [26]).

Issue 2: Seriousness of the individual counts

The court assessed all three counts as well below mid-range for offences of this type, with counts 4 and 7 being more serious than count 2, and count 4 marginally more serious than count 7 (at [44]). Relevant factors included the absence of ejaculation (which, while not reducing seriousness, would have increased it had it occurred), the opportunistic nature of the offending, the short duration of each incident, and the offender's age (at [34]-[36]). The offending occurred in the victim's home, engaging the statutory aggravation factor under section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, though that factor attracted no additional weight once already accounted for in the objective seriousness assessment (at [33]).

Issue 3: Guilty plea discount

Because the offender was a juvenile at the time of offending, the Early Appropriate Guilty Plea regime did not apply. The Crown conceded a discount of 10 to 15 per cent for utilitarian value, and the court accepted the submission that the upper end of that range was appropriate, allowing a 15 per cent discount (at [2]).

Issue 4: Juvenile sentencing principles

The court affirmed that section 6 of the Children (Criminal Proceedings) Act 1987 operates in mandatory terms and must be given genuine, not token, application (at [47]). Rehabilitation commands significantly greater weight when sentencing a juvenile, though the objective criminality of serious offending is not overlooked (at [48]). The court noted, drawing on BP v R [2010] NSWCCA 159, that emotional maturity and impulse control are especially pertinent considerations for a 14-year-old offender (at [51], [79]).

Issue 5: Causal connection between mental condition and offending

The court accepted, on the balance of probabilities, that there was a causal connection between the offender's major depressive disorder and compulsive pornography use at the time of offending and the offending behaviour itself, relying on the unchallenged report of Ms Gray-Weale and Dr Sowden's report (at [78], [112]). This finding reduced the weight to be given to general deterrence and was also relevant to the assessment of objective seriousness (at [78]).

Issue 6: Full-time custody versus Community Correction Order

The court acknowledged that the offending was undoubtedly serious and that the section 5 threshold decision was "quite stark" (at [119]). After detailed consideration of the objective seriousness, the strong subjective case (including genuine remorse, low risk of reoffending, excellent rehabilitation prospects, and strong family support), the mandatory juvenile sentencing principles, and comparative cases, the court concluded the matter could "barely" be resolved without full-time custody (at [121]). Community Correction Orders were imposed on each count.

Orders Made

  • Offender convicted on counts 2, 4, and 7.
  • Count 2: Community Correction Order of 2 years and 6 months.
  • Count 7: Community Correction Order of 2 years and 6 months.
  • Count 4 (including the Form 1 matter): Community Correction Order of 3 years.
  • Each order conditioned on: no further offences; appearance for sentence on any breach; supervision by Community Corrections with ongoing counselling for mental health, including compliance with directions from Dr Sowden; compliance with all treating health professionals' directions; and no contact, assault, molestation, interference, stalking, or association with the victim.

Key Takeaways

  • Under established authority, the age of a juvenile offender at the time of offending is not merely a subjective mitigating factor; it is a consideration that directly informs the objective seriousness of the offence itself (at [26]).

  • A causal connection between a juvenile offender's mental health condition and compulsive pornography use and the sexual offending, once accepted on the balance of probabilities from unchallenged expert evidence, reduces the weight to be given to general deterrence and is relevant to the objective gravity of the conduct (at [78]).

  • Section 6 of the Children (Criminal Proceedings) Act 1987 is mandatory in its terms; sentencing courts must give it genuine and substantive application, not token acknowledgment, even when dealing with serious indictable sexual offences (at [47]).

  • The District Court found that, even for offences carrying a maximum of life imprisonment, a sentence other than full-time custody can fall within the appropriate sentencing range where the offender was a juvenile barely above the age of criminal responsibility, the offending was assessed as well below mid-range, and the subjective case demonstrated genuine remorse, completed rehabilitation, and a low risk of reoffending (at [121]).

  • Sentencing statistics drawn from the Judicial Commission must be used with caution, particularly where the sample size is small; they can, in the words of Rothman J in LS v R [2020] NSWCCA 120, become "a self-fulfilling limitation" if applied mechanically (at [92]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act , 1987
- Crimes Act , 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- BM v R [2019] NSWCCA 223
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Brown v R [2014] NSWCCA 215
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hili & Jones v The Queen [2010] HCA 45
- Jolly v R [2013] NSWCCA 76
- Lloyd [2022] NSWCCA 18
- LS v R [2020] NSWCCA 120
- Markarian v The Queen (2006) 228 CLR 357
- MLP v R (2006) 164 A Crim R 93
- R v AA [2017] NSWCCA 84
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v BA [2014] NSWCCA 148
- R v DT [2019] NSWDC 673
- R v Elyard [2006] NSWCCA 43
- R v Gavel [2014] NSWCCA 56
- R v KL [2019] NSWCCA 731
- R v KT [2008] NSWCCA 51
- R v Lattouf unrep. NSWCCA 12 December 1996
- R v PGM [2006] NSWCCA 310
- R v ROK [2021] NSWDC 448
- R v Storey is reported at [1998] 1 VR 359
- R v Tuala [2015] NSWCCA 8
- Strbak v The Queen (2020) 94 ALJR 374; [2020] HCA 10
- Tepania v R [2018] NSWCCA 247
- Thammavongsa v R (2015) 251 A Crim R 342
- The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Tsokos unrep. NSWCCA 16.6.1995
- Lloyd v R [2022] NSWCCA 18