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Court of Criminal Appeal 20 December 2024

JL v R

[2024] NSWCCA 246

Sexual offencesPublic order & justice offences

Citation: JL v R [2024] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 20 December 2024
Judges: Hamill J, N Adams J, Sweeney J

Background

The applicant was sentenced in the District Court for serious sexual offending, including aggravated sexual assault, sexual touching, and breaking and entering with intimidation. The offences were committed when the applicant was 14 years old, against a victim in their own home. At the time of sentencing, the applicant was 16.

The applicant presented with significant personal circumstances: a diagnosed suite of neurodevelopmental disorders including Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder, a severely deprived and dysfunctional childhood resulting in him being made a ward of the state at around seven or eight years old, and general youth and immaturity. Expert psychological evidence, which was unchallenged, indicated these conditions had materially contributed to the offending.

The applicant sought leave to appeal the sentence imposed by Conlon SC ADCJ on 20 September 2023, contending that the sentencing judge had failed to properly apply the relevant principles relating to mental health, childhood deprivation, youth, and the significance of conditional liberty at the time of the offence.

  • Whether the sentencing judge erred in failing to find that the applicant's mental health conditions reduced his moral culpability, by applying an incorrect test requiring those conditions to "entirely account" for his actions
  • Whether the sentencing judge erred by failing to make any express finding as to whether the applicant's deprived childhood (the "Bugmy factors") reduced his moral culpability or otherwise ameliorated the sentence
  • Whether the sentencing judge erred by failing to explain how the principles relating to the sentencing of children applied specifically to this applicant
  • Whether the sentencing judge erred in treating the applicant's status on conditional liberty as an aggravating feature under the objective seriousness of the offending

Decision

Ground 1 (Mental Health): The Court of Criminal Appeal found that the sentencing judge had applied the wrong test. The correct question, drawn from Director of Public Prosecutions (Cth) v De La Rosa, is whether a mental health condition contributed to the commission of the offence in a material way, not whether it entirely accounted for the offender's actions. The sentencing judge's conclusion that the conditions could not "entirely" account for the applicant's behaviour did not satisfy this test, and his Honour ultimately made no reduction at all. The court also noted that no finding was made addressing the submission that custody would be more onerous for the applicant given his conditions, which was itself a separate and established basis for mitigation requiring no causal link to the offending.

Ground 2 (Bugmy Factors): The sentencing judge acknowledged the applicant's deprived and dysfunctional childhood but made no finding as to whether, or how, this reduced moral culpability or otherwise ameliorated the sentence. The Crown conceded the sentencing remarks "could have been better expressed" and suggested a finding could be inferred. The Court of Criminal Appeal rejected that submission, reaffirming the established principle that where a sentencing judge is silent on a significant mitigating submission, it is difficult to infer a finding was made. Uncertainty in the sentencing remarks itself demonstrates error.

Ground 3 (Youth): While the sentencing judge referred to the applicable legislative provisions under the Children (Criminal Proceedings) Act 1987 and identified that the applicant was 16 years old and had offended at 14, the court found it insufficient to merely cite the relevant principles. The sentencing remarks contained no explanation of how those principles applied to the specific circumstances of this applicant, and the court upheld this ground on that basis.

Re-sentencing: Having found multiple errors warranting resentencing, Sweeney J imposed an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months. The court found special circumstances justifying a reduced non-parole period to allow for an extended period of supervision and rehabilitation. Given the applicant's vulnerability and the availability of appropriate therapeutic programs only in juvenile detention facilities, the court also directed that the entire sentence be served as a juvenile offender.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Conlon SC ADCJ on 20 September 2023 quashed
  • Applicant sentenced to an aggregate term of 6 years imprisonment with a non-parole period of 3 years and 6 months, commencing 17 March 2022, with the non-parole period expiring 16 September 2025
  • Directed, pursuant to ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW), that the applicant serve the whole of the sentence as a juvenile offender

Key Takeaways

  • The correct test for whether mental health reduces moral culpability is whether the condition contributed to the offending in a material way; a requirement that the condition "entirely account" for the offender's actions is a higher and incorrect standard.
  • Separate from any causal link to the offending, an offender's mental health conditions may be relevant on the basis that incarceration will be more onerous for them, or that a sentence with a large deterrence component is inappropriate: these are independent mitigating considerations that do not require any connection to the commission of the crime.
  • Where significant mitigating factors such as childhood deprivation under the Bugmy principles are raised, the sentencing remarks must disclose whether and how those factors were taken into account; silence on the point cannot be cured by inferring a finding was made.
  • Citing the relevant sentencing principles for juvenile offenders is not sufficient on its own. The sentencing court must explain how those principles apply to the particular offender before it.
  • In dismissing the notion that multiple mitigating factors could be silently "rolled up," the Court of Criminal Appeal confirmed that each significant mitigating factor must be individually addressed and reflected in the sentencing remarks.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 19(1), 19(3)
- Crimes Act 1900 (NSW), ss 61J, 61KC(a), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dungay v R [2020] NSWCCA 209
- Lee v R [2016] NSWCCA 146
- Luque v R [2017] NSWCCA 226
- Kentwell v The Queen (2013) 252 CLR 601; [2014] HCA 37
- Aslan v R [2014] NSWCCA 114
- Bazzi v R [2024] NSWCCA 35
- DB v R [2023] NSWCCA 323
- KT v R [2008] NSWCCA 51
- Sharma v R [2017] NSWCCA 85
- TM v R [2023] NSWCCA 185