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District Court 21 March 2024

R v SH

[2024] NSWDC 104

Sexual offences
CRIMINAL SENTENCE CHILD SEXUAL INTERCOURSE

Citation: R v SH [2024] NSWDC 104
Court: District Court of New South Wales
Date: 21 March 2024
Judge(s): Anderson SC DCJ

Background

The offender, referred to by the pseudonym SH, was a juvenile aged 14 at the time of the offence and 16 at sentencing. He pleaded guilty in the Children's Court to one count of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900. The victim, referred to as HM, was four years old at the relevant time and is a relative of the offender. Both parties are subject to strict non-publication orders.

The offending occurred on 23 July 2022 at a family home where SH was residing at the time. SH engaged in a brief act of fellatio with HM, lasting no more than a few seconds, after HM refused a verbal advance. HM disclosed the offending to his mother the following day. The victim suffers from autism spectrum disorder, sensory processing disorder, and related cognitive difficulties, making him particularly vulnerable.

SH's background included prior concerning behaviour involving inappropriate use of a mobile phone at school, and his mother had previously decided not to leave him unsupervised with younger children. His father was in custody, and SH had been living with relatives at the time of the offence.

  • What was the appropriate assessment of objective seriousness for the offence, having regard to the offender's age, the victim's age and vulnerability, the nature of the conduct, and its brevity?
  • What weight should be given to the subjective circumstances of a juvenile offender, including age, background, and prospects of rehabilitation?
  • Whether a full-time custodial sentence was required, or whether an alternative sentencing disposition was available and appropriate.
  • Whether SH should be registered as a registrable person under the Child Protection (Offenders Registration) Act 2000.

Decision

Anderson SC DCJ assessed the objective seriousness of the offence as falling below the mid-range, having regard to the offender's age of 14 at the time, the brief duration of the conduct (no more than a few seconds), the absence of ejaculation, and the impulsive and opportunistic nature of the offending. The court acknowledged the very young age of the victim and his particular vulnerability as aggravating features, and accepted that the offending occurred in circumstances involving a breach of trust and at a location where the victim was entitled to feel safe.

The court confirmed, consistent with Court of Criminal Appeal authority (including R v AA [2017] NSWCCA 84 and BM v R [2019] NSWCCA 223), that a juvenile offender's age is a relevant consideration when assessing objective seriousness, not merely a subjective mitigating factor. It also confirmed that no hierarchy of forms of sexual intercourse should be applied when assessing seriousness; the entirety of the facts and circumstances governs the assessment.

A 25% reduction was applied for the early guilty plea entered in the Children's Court. The court considered the subjective case, including the offender's youth, personal circumstances, and prospects of rehabilitation, to be significant. Anderson SC DCJ concluded that, despite the undoubted seriousness and trauma of the offending, the combination of the offender's age, the findings on objective seriousness, and the subjective material made a non-custodial sentence appropriate.

Orders Made

  • Non-publication order made suppressing the names of the offender and victim and any identifying features, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010.
  • SH convicted of the charge to which he pleaded guilty.
  • Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, a community corrections order imposed for three years in lieu of imprisonment.
  • SH to attend Maitland Community Corrections Centre within seven days.
  • Conditions of the community corrections order include:
  • No further offences.
  • Appear before the court if called upon.
  • Accept supervision of the Department of Community Corrections, including counselling, mental health treatment, and if appropriate, referral to a sex offender treatment program.
  • No contact with the victim in any form.
  • Obey all reasonable directions of treating health professionals.
  • Visit a general practitioner within 28 days to obtain a mental health treatment plan.
  • Visit a general practitioner within 28 days to obtain a referral for psychometric testing to assess potential cognitive impairment or autism spectrum disorder.
  • Order made pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act 2000 that SH is not to be treated as a registrable person under that Act.

Key Takeaways

  • Under R v AA [2017] NSWCCA 84 and BM v R [2019] NSWCCA 223, a juvenile offender's age is a relevant factor in assessing the objective seriousness of a sexual offence, not merely a mitigating consideration in the subjective case.

  • The District Court confirmed that courts must not rank different forms of sexual intercourse in a hierarchy when assessing objective seriousness; the whole of the facts and circumstances of the particular case governs that assessment.

  • A non-custodial sentence under s 8(1) of the Crimes (Sentencing Procedure) Act 1999 remains available even for an offence carrying a maximum penalty of life imprisonment, where the combination of objective seriousness, the offender's youth, and subjective circumstances warrants it.

  • The younger the child victim, the more serious the offence, consistent with the principle restated in R v KNL [2005] NSWCCA 260 and RJA v R [2014] NSWCCA 89; here, however, the brevity of the conduct and the offender's age moderated the overall assessment.

  • The court exercised its discretion under s 3C(1) of the Child Protection (Offenders Registration) Act 2000 to exempt a juvenile offender from registration as a child sex offender, reflecting the distinct sentencing considerations applicable to young persons.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8(1), 21A(2)(e), (k), (l), 54D(3)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C(1)
- Children's (Criminal Proceedings) Act 1987 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases
- R v AA [2017] NSWCCA 84
- BM v R [2019] NSWCCA 223
- R v KNL [2005] NSWCCA 260
- RJA v R [2014] NSWCCA 89
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- Jolly v R [2013] NSWCCA 76
- R v Gavel [2014] NSWCCA 56
- R v Millwood [2012] NSWCCA 2
- Lloyd v R [2022] NSWCCA 18
- Paul Campbell v R [2018] NSWCCA 87
- R v Andrew Button (a pseudonym) [2021] NSWDC 829
- R v DT [2019] NSWDC 673
- R v KL [2019] NSWDC 731
- R v ROK [2021] NSWDC 448
- MS2 & Ors v Regina (2005) 158 A Crim R 93