R v LP [2020] NSWDC 346

District Court New South Wales

Medium Neutral Citation: R v LP [2020] NSWDC 346 Hearing dates: 21 February 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: Aggregate term of imprisonment of 3 years, 3 months. For orders see [72] Catchwords: SENTENCING — Penalties — Aggregate term of imprisonment – Sexual intercourse with a child – Offender between the age of 15-17 for the majority of offences – Youth of the offender as a sentencing consideration – Significant mental health issues – No prior criminal record Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application (No 1) (2002) 56 NSWLR 146 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Muldrock v The Queen (2011) 244 CLR 120 R v Israil [2002] NSWCCA 255 R v MAK and MSK (2006) 167 A Crim R 159 Watts v R [2007] NSWCCA 153 Markarian v The Queen [2005] HCA 25 Category: Sentence Parties: Regina (Crown) LP (Defendant) Representation: Mr A Barnes (Crown) Ms C Doosey (Defendant) File Number(s): 2018/0039281 Publication restriction: Non publication order on the names of the complainants or any information that may identify them. Suppression order on the name of the offender.

Judgment 1. The offender LP, born in March 1998, is before the court for sentence for 7 offences. The following offences took place when LP was a child within the meaning of the Children (Criminal Proceedings) Act 1987 (the Children's Act). Counts 1, 5 and 6 are that he had sexual intercourse with a person between the ages of 10 and 14 for which the maximum penalty is 16 years. There is no standard non-parole period because of the effect of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), as the entirety of this offending took place, on the balance of probabilities, when the offender was not yet 18 years of age. Counts 2 and 3 are that he committed aggravated indecent assault with a child under the age of 16 years for which the maximum penalty is 10 years, and for which there is no standard non-parole period because of the effect of section 54D(3) of the Sentencing Act. Count 4 is that he had aggravated sexual intercourse with a person aged between 10 and 14 for which the maximum penalty is 20 years, and for which there is no standard non-parole period because of the effect of section 54D(3) of the Sentencing Act. Counts 1 to 6 occurred while the offender was between the ages of 15 and 17. 2. Count 7 took place when the offender was 19 years of age. The charge is that he committed an act of indecency with a person under the age of 16 years, for which the maximum penalty is 2 years. There are also matters on the Form 1 which the offender asks me to take into account when sentencing him for count 7 which are two charges of commit act of indecency with person aged under 16. 3. The offender is now 21 years of age. 4. It was agreed between the parties that offender should be sentenced according to law within the meaning of the Children's Act, and that only section 6 of that Act has application in the present case (and only with respect to counts 1 to 6). That provision requires the court to take into account the following: 1. That children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate in the processes that lead to decisions that affect them; 2. That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance; 3. That it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption; 4. That it is desirable, wherever possible, to allow a child to reside in his or her own home; 5. That the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind; 6. That it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties; 7. That it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions; and 8. That, subject to the other principles described above, consideration should be given to the effect of any crime on the victim. 1. Whilst I note that the offender was a child when he committed the offences the subject of counts 1 to 6, the events the subject of count 7 and those on the Form 1 occurred when LP was a very young adult. 2. I was assisted by the thoughtful written and oral submissions of Ms Doosey on behalf of the offender and Mr Barnes on behalf of the Crown. Issues between them were narrow and overlapped to a large extent. There was no dispute that the threshold of section 5 of the Sentencing Act was crossed, and that only a full-time custodial sentence is appropriate. It was also conceded by the Crown that if sequence 7 had been isolated, the section 5 threshold would not have been crossed. 3. The Agreed Facts, which are part of Exhibit 1, are as follows:- Background 1. The first victim, OD, resides in the south coast of New South Wales. She was born in March 2005. 2. The second victim, OP, resides next door to OD. She too was born in March 2005. 3. OP is the biological sister of the offender. 4. OD and OP were best friends at the time of the offences. 5. The offender, LP, resided at the same premises as his sister. The offender was born in March 1998. Context – offences not committed in isolation 1. In a disclosure, OP told her school principal that when she was 7 or 8 years old, the offender "did stuff to us" and made her "touch his thing". OP disclosed that the offender threatened her and OD not to tell anyone about what happened. 2. OP disclosed to police that the offender would make her touch his penis from the age of 7 to the age of 10. OP said that the offender would "force" her and OD to rub or touch his penis "every time" OD "was over" by cornering them near a shed in the backyard. 3. OP disclosed to police that the offender touched her on the vagina on three or four occasions between the age of seven and nine. OP could not particularise where or when these incidents occurred. 4. In a disclosure, OD told her mother that when she was eight years old she walked into OP's living room and saw the offender watching the big television masturbating. OD told her mother that the offender continued to masturbate until she saw "white stuff coming out of his penis." 5. Sometime between 28 March 2014 and 27 March 2016 when OD was aged about 10 years of age, OD and OP were sitting on a rock ledge behind a shed in OP's backyard. At this time the offender was aged between 16 and 18 years old, but was not yet 18 years of age. 6. The offender approached the victims and forcefully pushed OD on to her back. The offender placed his elbow on OD's stomach to hold her down and used his other hand to touch her vagina. The offender then inserted his finger into OD's vagina for about 10 seconds. 7. With OD on the ground, the offender attempted to place his mouth on her vagina. OD kicked the offender and prevented this from occurring. 8. OD told the offender to stop. OP, who was also present, screamed at the offender to stop and attempted to pull the offender away. Count 2 – Aggravated indecent assault (OD) – s61M(2) Crimes Act Count 3 – Aggravated indecent assault (OP) – s61M(2) Crimes Act 1. Sometime between 28 March 2016 and 27 May 2017, OD was swimming in the pool at the offender's house with OP. OP was aged between 10 and 11 years old. OD was aged between 10 and 11 years old. The offender was aged between the age of 17 and 18 years old, but was not yet 18. 2. The offender called to the victims from outside of the pool area and told them that he needed their help. The offender then led the victims out of sight of the home to a bush area behind a shed. 3. Once out of sight, the offender threatened to burn the victims with a cigarette lighter if they did not touch his penis. OD told police "he made us touch his penis and, um, we didn't want to. We tried to refuse but, again, he, like, um I didn't say this yet actually, he threatened us". "He said he would get his cigarette or his lighter and stab it into our skin". The victims took turns stroking the offender's penis. 4. The victims attempted to leave the area, but the offender blocked them with his arm. OD attempted to scratch the offender but could not escape. The offender threatened the victims and said, "You're looking forward to a smiley (the use of a hot cigarette lighter to burn the skin)". 5. The offender lowered his pants exposing his penis and testicles. OD bent her knees slightly and used her hands to hold the offender's penis and rub it in an up and down motion. Count 4 – Aggravated sexual intercourse – child aged between 10 and 14 (OP) – s66C(2) Crimes Act 1. After about a minute, the offender turned to OP and said, "Come over." OP reached out to the offender's penis with her hand. The offender said, "No, your turn to suck it." 2. OP knelt down and the offender put his penis in her mouth. The offender pulled on OP's ponytail to forcefully move her head back and forth along his penis. 3. After about five minutes, the victims managed to escape. Count 5 – Sexual intercourse – child aged between 10 and 14 (OD) – s66C(1) Crimes Act 1. Sometime between 28 March 2016 and 27 May 2017, OD was at her home in the backyard with OP. OP was aged between 9 and 11 years old. OD was aged between the age 10 and 11 years old. The offender was aged between the age of 17 and 18 years old. 2. At some point during this period, the victims were swimming in the pool. The offender approached the victims and took them behind the shed at the rear of the property with the offender. 3. The offender stood in front of OD. The offender made OD kneel down and suck his penis. After about two minutes, the offender moved OD's head and removed his penis from her mouth. Count 6 – Sexual intercourse – child aged between 10 and 14 (OP) – s66C(1) Crimes Act 1. The offender then sat on a nearby ledge and directed OP to suck on his penis. P then placed the offender's penis in her mouth. The offender placed his hands on the back of the second victim's head and pushed her head along his penis 2. After about two minutes, the offender heard his other sisters approaching and the victims left. The offender told the victims to "act natural." Commit act of indecency (OD) – s61N(1) Crimes Act – Form 1 1. On the afternoon of Tuesday 10 October 2017, OD was riding her motorcycle in her large backyard at her home. The victim was 12 years old. The offender was 19 years old. 2. Whilst she was doing a lap of the backyard, the victim saw the offender sitting on a pile of tin watching her. 3. As she came closer on her motorcycle, the victim saw that the offender's pants were down to his ankles and he was masturbating. 4. OD got off her motorcycle and went inside her home. OD immediately told her mother about the offender's behaviour. Commit act of indecency (OD) – s61N(1) Crimes Act – Form 1 1. On the afternoon of Wednesday 11 October 2017, OD was riding her motorcycle in her backyard. The victim was 12 years old. The offender was 19 years old. 2. Whilst she was doing laps of the backyard, OD saw the offender sitting on a pile of tin in his backyard watching her. 3. OD saw that the offender's pants were again down to his ankles and he was masturbating. 4. The victim rode her motorcycle for about 10 minutes. The offender continued to watch her and masturbate during this time. 5. OD then got off her motorbike and went inside her home. OD immediately told her mother about the offender's behaviour. Count 7 – Commit act of indecency (D) – s61N(1) Crimes Act 1. On Thursday 12 October 2017, OD was riding her motorcycle in her backyard. The victim was 12 years old. The offender was 19 years old. 2. The victim had completed approximately two laps of her backyard when she saw the offender sitting down in his backyard watching her. 3. On her third lap, the victim saw the offender, standing close to the boundary fence with his pants down to his thighs as he masturbated towards her. 4. OD continued to ride her motorcycle. Each time she rounded the corner, she could see the offender masturbating in her direction getting closer to the fence separating the two properties. This made the victim feel "Weird. Like it made me feel scared." 5. After about ten minutes, the victim got off her motorcycle and went inside her home. 6. The victim immediately approached her mother and told her about the offender's behaviour. OD's Disclosure 1. When OD was about eight years of age, she disclosed to her older sister that the offender had asked if he could see both her and OP's private parts while they were playing together. 2. Some months later, when OD was about eight or nine years old, she disclosed to her sister that she and OP had been sexually abused by the offender. In that disclosure, OD told her sister that, "LP would make her put her mouth on his penis and make his sister OP watch, and he would make them swap and make them take turns in watching each put his penis in their mouths." OD further told her sister that the offender would threaten to give her a 'smiley' with a cigarette lighter. 3. On 27 May 2017, OD disclosed to her sister and her friend that she and OP had been sexually abused by the offender. 4. On 19 October 2017, OD disclosed to her classroom teacher that she and OP had been repeatedly sexually abused by the offender. OD told her teacher that she thought the abuse was 'normal' and had asked her mother why her own brother did not act in the same way. 5. OD was then taken to the principal's office, where she repeated the disclosure. 6. The principal and the teacher then contacted the Child Well Being Unit. OP's Disclosure 1. Later that day, OP made a disclosure to the principal and the teacher. OP told her teacher that when she was about eight years old, the offender "did stuff to us and made us touch his thing." OP stated that the offender had not touched me since I was 10 or 11 years old." 2. Following that disclosure, the principal contacted Family and Community Services. 3. On 20 October 2017, the victims were interviewed by the Child Abuse Squad. Police Interactions with the Offender 1. On 20 October 2017, the offender was served with an Apprehended Domestic Violence Order, listing the victims as protected persons. 2. On Thursday 13 March 2018, the offender attended the police station with his father where he was arrested and cautioned. 3. The offender participated in an electronically recorded interview but declined to comment in relation to allegations put to him by police. 4. The offender was charged. 5. I note that it was conceded by the Crown at the hearing, that the age of the victims was no less than 10, and I disregard anything in the Agreed Facts that suggests otherwise. I note too that none of the counts are serious children's indictable offences.