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District Court 14 September 2023

R v BP

[2023] NSWDC 415

Sexual offences
SENTENCE AGGRAVATED SEXUAL ASSAULT BY AN OBJECT SERIOUS CHILDREN'S INDICTABLE OFFENCE SENTENCING ACCORDING TO LAW PRODUCTION OF CHILD ABUSE MATERIAL FILMING OF DRY HUMPING

Citation: R v BP [2023] NSWDC 415
Court: District Court of New South Wales
Date: 14 September 2023
Judge: Grant DCJ

Background

The offender, BP, was 15 years old at the time of the offences and a Year 10 residential boarding student at a regional high school. He and two co-accused shared a dormitory with the complainant, a fellow student of similar age. The offences occurred on the evening of 9 March 2022, the night of the school's centenary celebrations.

The offending involved two incidents. In the first, BP and a co-accused held the complainant down while the co-accused inserted a padlock into the complainant's anus, with BP directing that it be pushed in harder. In the second, which was filmed on a mobile phone at BP's direction, BP and the co-accused took turns dry humping the complainant from behind while he was on all fours on his bed. The complainant protested throughout both incidents.

BP pleaded guilty in the Griffith Children's Court on 6 April 2023 to aggravated sexual assault by an object (contrary to s 61J(1) of the Crimes Act 1900) and to performing a sexual act for the production of child abuse material involving a child under 16 (contrary to s 66DF(a) of the Crimes Act 1900). The matter was then dealt with for sentence in the District Court.

  • Whether the standard non-parole period applied given BP was under 18 at the time of the offences
  • What sentencing principles apply to a child offender being sentenced for serious indictable offences
  • Whether the offender posed a sufficient risk to justify full-time detention
  • Whether BP should be placed on the Child Protection Offenders Register as a registrable person
  • Whether apprehended violence order conditions and domestic violence offence notations were required

Decision

Grant DCJ applied the sentencing framework under the Children (Criminal Proceedings) Act 1987, which directs that rehabilitation is the primary consideration for child offenders. Because BP was under 18 at the time of the offences, the standard non-parole period of ten years applicable to s 61J(1) offences did not apply by operation of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999.

The court accepted that BP's youth and immaturity were substantial mitigating factors. The offending was described as impulsive and of short duration, with little planning. His Honour drew on the principle from R (a child) v Whitty (1993) that no civilised society holds children accountable to the same extent as adults, noting that considerations of retribution and punishment must cede to rehabilitation in the case of young offenders. BP had no prior sexual offending history, had pleaded guilty (attracting a 25 per cent discount), demonstrated remorse, and was assessed as having excellent prospects of rehabilitation.

The court was satisfied that full-time detention was not warranted and imposed Community Correction Orders. His Honour was also satisfied that BP did not pose a risk to the lives or sexual safety of children, which engaged the discretion under s 3C of the Child Protection (Offenders Registration) Act 2000 to order that he not be treated as a registrable person. The offences were, however, recorded as domestic violence offences on BP's criminal history, as the Crown sought, because both fell within the definition of "personal violence offences" under the Crimes (Domestic and Personal Violence) Act 2007.

Orders Made

  • Sequence 8 (s 61J(1) aggravated sexual assault): Convicted and sentenced to a Community Correction Order for three years, with standard conditions (no further offences; appear before the court if required)
  • Sequence 9 (s 66DF(a) production of child abuse material): Convicted and sentenced to a Community Correction Order for two years, with standard conditions (no further offences; appear before the court if required)
  • Offenders Register: Ordered that the offender is not to be treated as a registrable person under s 3C of the Child Protection (Offenders Registration) Act 2000
  • Apprehended Violence Order: Final AVO made for the protection of the complainant for two years, including conditions 2 and 8
  • Domestic violence notation: Both offences recorded on the offender's criminal history as domestic violence offences under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007

Key Takeaways

  • Where an offender was under 18 at the time of offending, the standard non-parole period for serious offences under the Crimes Act 1900 does not apply by reason of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Under the Children (Criminal Proceedings) Act 1987, rehabilitation is the paramount sentencing consideration for child offenders, displacing the retributive and punitive weight that would otherwise apply to serious sexual offences.
  • A child offender who was under 18 at the time of the offending, has no prior sexual offence history, and does not pose a risk to the sexual safety of children may be ordered not to be treated as a registrable person under s 3C of the Child Protection (Offenders Registration) Act 2000, even where the offences are among the most serious in the criminal calendar.
  • Immaturity and impulsivity, while not excusing serious offending, can substantially reduce moral culpability in child sentencing matters and support a finding that Community Correction Orders are appropriate in lieu of full-time detention.
  • Offences constituting "personal violence offences" under the Crimes (Domestic and Personal Violence) Act 2007 may be recorded as domestic violence offences on a young person's criminal history even where the sentence imposed is a non-custodial order.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 66DF(a)
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12(2), 39(1A), 41(5)(c)

Cases
- R (a child) v Whitty (1993) 66 A Crim R 463
- BP v R [2010] NSWCCA 159; (2010) A Crim R 379
- KT v R [2008] NSWCCA 51
- MS2 and Ors v R [2005] NSWCCA 397
- Paul Campbell v R [2018] NSWCCA 87
- R v GDP [2008] NSWCCA 51
- R v SDM (2001) 51 NSWLR 530
- R v WKR (1993) 32 NSWLR 447
- Yardley v Betts 1 A Crim R 329