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Court of Criminal Appeal 3 May 2004

Regina v KBM [2004] NSWCCA 123 revised - 5

[2004] NSWCCA 123

Sexual offences
CRIMINAL PRACTICE & PROCEDURE SERIOUS CHILDREN'S INDICTABLE OFFENCE SENTENCING A CHILD RELEASE WITH SUPERVISION

Citation: Regina v KBM [2004] NSWCCA 123
Court: Court of Criminal Appeal, New South Wales
Date: 3 May 2004
Judge(s): Tobias AJ, Kirby J, Bell J

Background

The appellant, KBM, was thirteen years old (three weeks short of his fourteenth birthday) when he sexually assaulted a nine-year-old girl as she walked home from school. He pleaded guilty to sexual intercourse with a person under ten years of age under section 66A of the Crimes Act 1900, an offence carrying a maximum penalty of 25 years imprisonment. The assault involved oral penetration, physical restraint, and threats. The victim's mother intervened and the appellant fled.

KBM's background was significantly troubled. He had experienced an unstable and impoverished childhood, was himself the victim of serious sexual abuse at age eleven, had attempted suicide, and had a history of marijuana use. He was diagnosed with ADD and had no stable schooling history. At the time of sentencing, he was living under the care of his older sister, with whom he had shown improved engagement in education.

In the District Court, Puckeridge DCJ sentenced KBM to three years imprisonment in a juvenile detention centre, with a non-parole period of twelve months. KBM appealed to the Court of Criminal Appeal, contending that the sentence was manifestly excessive.

  • Whether the sentence imposed by Puckeridge DCJ was manifestly excessive in all the circumstances
  • Whether, in sentencing a child offender for a serious indictable offence, the principles of rehabilitation should take precedence over deterrence and denunciation
  • Whether KBM's personal circumstances, including his own history of abuse and the prospects of rehabilitation under community supervision, warranted a reduction of the non-parole period and immediate release

Decision

The Court of Criminal Appeal allowed the appeal, finding that the non-parole period as structured was manifestly excessive having regard to KBM's circumstances and the paramount importance of rehabilitation in sentencing child offenders. The court accepted that, while the offence was serious and the impact on the victim significant, the sentencing of children calls for a different emphasis than that applied to adults.

Kirby J (with whom Tobias AJ and Bell J agreed) examined KBM's background in detail, noting the profound disadvantage and trauma he had experienced from an early age, including being sexually abused himself. The court found that these factors were highly relevant to the sentencing exercise, not as excuses, but as context bearing on KBM's culpability and his prospects for rehabilitation.

The court also took into account a report from the Department of Juvenile Justice, which recommended sexual counselling and community supervision under the care of KBM's sister. Evidence from the juvenile detention centre showed that KBM had been compliant and had made educational progress, but had also been victimised and suffered anxiety attacks in custody. The court concluded that his rehabilitation was best served by immediate release into his sister's custody, with ongoing supervision and mandatory counselling.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The non-parole period under the sentence of Puckeridge DCJ (originally 5 December 2003 to 4 December 2004) was varied to run from 5 December 2003 to 3 May 2004 (the date of the appeal judgment)
  • KBM released forthwith into the custody of his sister, subject to her supervision and that of the Department of Juvenile Justice, including sexual and other counselling as recommended in the Department's report of 5 December 2003
  • Supervision to continue until 4 December 2006, being the expiration of the full sentence

Key Takeaways

  • When sentencing a child offender, rehabilitation is the primary consideration, displacing the weight ordinarily given to general deterrence and denunciation that applies to adult offenders.
  • A guilty plea to a serious sexual offence by a child does not preclude a sentence structured around community supervision, particularly where credible prospects of rehabilitation exist and a stable support network is available.
  • The Court of Criminal Appeal confirmed that a child offender's own history of victimisation and disadvantage forms relevant and significant background to the sentencing exercise, bearing on both moral culpability and the appropriate sentencing response.
  • Evidence of a child detainee being further victimised and traumatised within a juvenile detention facility can support a finding that continued custody is counterproductive to the rehabilitative purposes the Children (Criminal Proceedings) Act 1987 is designed to serve.
  • Under the framework applied in this case, the three-year total sentence was not disturbed; only the non-parole period was varied, reflecting the court's view that the sentence's overall structure could be preserved while still giving proper weight to rehabilitative considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Children (Criminal Proceedings) Act 1987 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Mako [2004] NSWCCA 90
- R v WRK (1993) 32 NSWLR 447
- R v GDP (1991) 53 A Crim R 112
- R v Smith [1964] Crim LR 70
- Wilcox (Supreme Court (NSW), unreported, 15 August 1979)
- R v Pham (1991) 55 A Crim R 128