District Court New South Wales Medium Neutral Citation: R v RB (No 3) [2022] NSWDC 580 Hearing dates: 31 October 2022 Date of orders: 28 November 2022 Decision date: 28 November 2022 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced - see paragraphs [62] to [65] Catchwords: CRIME - child sex offences - sexual intercourse with child 11 years old - offender was 16 or 17 years old - half siblings - digital penetration - reported 8 years later - plea of guilty SENTENCING - no hierarchy of seriousness of sexual intercourse offences - age of offender and immaturity at time of offence to be taken into account - whether offence committed in home of victim can be factor of statutory aggravation - vulnerability of victim - criminal history of the offender - delay - Bugmy factors - dysfunctional background - effect of COVID-19 on incarceration Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Brown v R [2014] NSWCCA 214 Bugmy v The Queen [2013] HCA 37 Hili & Jones v The Queen [2010] HCA 45 Jonson v R [2016] NSWCCA 286 LS v R [2020] NSWCCA 120 Mbele v R [2021] NSWCCA 182 Patel v R [2019] NSWCCA 170 Quinn v DPP (Cth) [2021] NSWCA 294 R v AA [2017] NSWCCA 84 R v RB [2020] NSWDC 328 Thurlow v R [2022] NSWCCA 20 Toller v R [2021] NSWCCA 204 Valentine v R [2020] NSWCCA 116 Young (a pseudonym) v R [2022] NSWCCA 111 Category: Sentence Parties: Rex RB (a young person) Representation: Counsel: Mr D Mulligan for the young person Solicitors: Mr C Hasler for the Director of Public Prosecutions File Number(s): 2021/311980 Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) publication of the names of any matter which could identify the offender and the victim is prohibited. Pursuant to s 578A of the Crimes Act 1900 (NSW) publication of any matter which could identify the victim is prohibited. Judgment 1. The offender appeared before a Magistrate at the Local Court on 4 May 2022 and pleaded guilty to one count contrary to s 61J of the Crimes Act, 1900 namely: That (he) between 1 January 2013 and 19 April 2013 in (town) in New South Wales did have sexual intercourse with KB without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation, namely that at the time of the offence KB was a person aged under the age of 16 years, namely being in fact aged 11 years. 1. The plea of guilty was adhered to at the sentence hearing on 31 October 2022. The offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. 2. The maximum penalty prescribed for the offence is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years. It is accepted by both parties that the standard non-parole period has no application given that the offender was under the age of 18 years at the time of the commission of the offence. 3. I note that the offender was sentenced by me on 2 July 2020 to a Community Correction Order for 3 years for reasons which were published as R v RB [2020] NSWDC 328. Facts 1. The offender and the victim are half siblings. The victim was 11 years of age at the time of offending and the offender was 16 or 17 years of age. Their respective dates of birth are set out on the agreed facts. They lived in the same house in a country town in southern New South Wales. They each had their own bedroom. 2. On a day within the timeframe pleaded in the charge the victim and offender were at home by themselves. The victim was in her bedroom lying in bed playing on her phone. The offender walked into the victim's bedroom and the victim told him to get out and that she did not want him in the room. The offender got into bed with the victim and pulled her close. The offender was holding the victim down. The victim said to the offender, "get away from me, I don't want you here, get out". 3. The offender spread the victim's legs and digitally penetrated her vagina with his fingers for about 30 seconds moving his fingers back and forth. The victim kept on saying "stop" to the offender. The facts then recite that the offender then suddenly stopped and left the victim's bedroom. 4. In May 2021 the victim confronted the offender and said to him, "I know what you did to me when I was younger. I know it was wrong. I want to go forward with it." The offender replied, "Don't do it you'll fuck up my life you don't think my life is fucked up as it is?" On or about 13 June 2021 victim disclosed the offending to her mother. 5. On 6 July 2021 the victim went to the local police station where she reported the offending and on 26 October 2021 provided a statement to police. The offender was arrested on 3 November 2021. As was his right he declined to be interviewed. Assessment 1. In R v RB [2020] NSWDC 328 at [15]-[22] inclusive I said: "[15] R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 (Simpson J as her Honour then was) said at [24]: 'It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness'. [16] In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]: '…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).' [17] Generally, the younger the victim the more serious the offence will be regarded – see for e.g. R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14]. In the matter presently under consideration the complainant was 5 years of age at the time of offending. [18] In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]: 'As was observed in R v Gavel : "[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34]."' [19] His Honour went on to say at [45]: ' … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: "[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse."' [20] In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J's statement in Saddler, said: '[57] Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse.' [21] On the issue of the sexual assaults being of limited duration there is the decision of R v AA [2017] NSWCCA 84, which was an unsuccessful Crown appeal. Beech-Jones J at [56] said: '…While the short duration of a sexual assault "would not ordinarily be considered as a factor which reduces the objective seriousness" of such an offence (R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])." [22] Fullerton J in her judgment in R v PGM at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that: '…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable."'" 1. In the matter presently under consideration the intercourse was digital, but it lasted for about 30 seconds during which time the offender moved his fingers back and forth. The offender persisted despite being told to stop by the victim. The age difference is in the vicinity of five years. 2. In written submissions (MFI 1) (paragraph 36) the solicitor appearing for the Crown submits that the matter is above mid-range. This submission was continued in the course of oral submissions at the sentence hearing. Mr Mulligan, counsel for the offender, in his written submissions (MFI 2) submitted that the matter was "just beneath the midpoint of the low and mid-range of objective seriousness". In oral submissions at the sentence hearing I understood Mr Mulligan to submit the matter was between the low and midpoint, at about half way between those points. 3. I also understood Mr Mulligan to submit that given the decision in R v AA [2017] NSWCCA 84 I could also take into account the age of the offender in determining the objective seriousness of the matter. Given what was said by Beech-Jones J (as his Honour then was, Leeming JA, Hulme J agreeing) at [52]-[58] I accept the submission that the age of the offender is something that can go towards informing the objective seriousness of the matter. In this regard I note what was said by Adams J (Bell CJ, Button J agreeing) in Young (a pseudonym) v R [2022] NSWCCA 111 at [64]. 4. Taking into account the factors to which I have referred, namely the type of intercourse, the duration of the intercourse, the age of the victim, the age of the offender, the general circumstances of the offending, the age difference between the offender and the victim, I am of the opinion that the matter is below the mid-range of seriousness, but not significantly so. s 21(2)(eb) Crimes (Sentencing Procedure) Act, 1999 1. One of the controversial matters at the sentencing hearing was whether the factor of statutory aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, namely the offence was committed in the home of the victim was made out. The Crown argued that it was enlivened whereas Mr Mulligan of behalf of the offender argued that it was not. 2. Mr Mulligan argued that the fact that the offending occurred in the home of the victim can be taken into account in the instinctive synthesis approach in determining the appropriate sentence and the factor of statutory aggravation is not enlivened. The authorities of Jonson v R [2016] NSWCCA 286 and Patel v R [2019] NSWCCA 170 are cited in support of the proposition advanced by counsel for the offender. 3. Harrison J (Simpson AJA, Adams J agreeing) at [20] in Patel said: "In my view, the risk to the safety and security of Ms Joshi's home was created by her own actions. It is a little difficult as a matter of principle to see how a crime assessed by reference to the reasonable person's response to the perceived threat created by those actions can be reliably or even fairly characterised by the fortuitous circumstance that it took place in Ms Joshi's home. Perhaps more fundamentally, as I have adverted to in dealing with the previous ground of appeal, it is somewhat difficult to ascribe gradations of seriousness or moral culpability to an unlawful killing that is established by proof not of some criminal intent or guilty mind but by reference to a failure to conform to an objective standard. The fact that Ms Patel's crime took place in Ms Joshi's home does not in these circumstances seem to me to be an aggravating factor." 1. It is to be noted that the offender in Patel was convicted of manslaughter, essentially - as I understand the judgment - on the basis of excessive self-defence. That case is easily distinguishable on the facts from the matter presently under consideration. 2. Jonson v R was the decision where the Court of Criminal Appeal sat a bench of five in order to resolve the dispute as to whether s 21A(2)(eb) of the Sentencing Act was enlivened where the home in which the offence occurred was the home of the victim and the offender. 3. At [33] Bathurst CJ (Beazley P, Hall & Adams JJ agreeing, Bellew J agreeing but also dealing with another ground of appeal) said: "At the request of the Court, the parties at the conclusion of the hearing provided references to a number of interstate decisions said to be relevant to the common law principle. In Director of Public Prosecutions v Fellows [2002] VSCA 58, a Crown appeal against a sentence for rape, the offence being committed by a member of the victim's family who was not an intruder, Phillips CJ, with whom the other members of the Court agreed, made the following remarks at [37]: '[37] Performing that exercise I have come to conclude that, by reason of its component of entire suspension, it is manifestly inadequate and that, accordingly, his Honour's sentencing discretion has miscarried. I would uphold particulars (a) and (d). It is unnecessary to deal with the others. Put another way, error in these respects makes the sentence explicable. In my opinion, this rape was attended by a number of aggravating circumstances. The victim was in her own home - indeed in her own bed. She was entitled to feel herself safe from any unwelcome attentions by any man - let alone a member of her extended family. The attack was not without some persistence. It had very, very grave consequences. The mitigating circumstances, while substantial, were not, in my opinion, such as to justify total suspension when considered as part of all the circumstances.'" 1. I note that the facts in the matter of Fellows are similar in a number of respects to the matter presently under consideration. Returning to the decision of Jonson, at [50] the Chief Justice went on to say: "In these circumstances, I am unable to agree that there is a rule of law within the meaning of that expression in s 21A(4) of the Sentencing Procedure Act that the fact that the offence was committed in the victim's home can only be an aggravating factor on sentence if the offender is an intruder. Whilst I am conscious of the care which should be taken in overruling previous decisions of this Court (see, for example, Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 at 269), I am of the view that the decisions which attributed this principle to Comert are plainly wrong and should be overruled." 1. Earlier in his judgment the Chief Justice set out at [10] an extract of the Second Reading Speech made at the time sub paragraph (eb) was inserted into s 21A(2): "Section 21A(2)(eb) of the Sentencing Procedure Act was inserted into s 21A by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW). In the Second Reading Speech introducing that provision, the following remarks were made: 'Item [3] also enacts section 21A(2)(eb). It will aggravate an offence that was committed within a victim's home or another person's home. This aggravating factor preserves the notion of sanctity of the home, whereby individuals are entitled to feel safe from harm of any kind. This protection should apply in any home. The courts have long recognised that it is an aggravating circumstance when victims are assaulted in their own homes. The Government takes the position that any offence committed in the home of the victim, even if it is also the home of the accused, or in the home of another person, violates that person's reasonable expectation of safety and security. However, when a crime is committed in and from the accused's own home – for example, if the offender is committing computer or fraud offences – and no other person is present, the aggravation will not apply.'" 1. In the matter presently under consideration the offending occurred not only in the victim's home but in her bed in her bedroom. In oral submissions the Crown's representative emphasised that the victim should have been able to feel safe and secure in her own bedroom in her own home. I agree with that submission. Given the authorities I am of the opinion that the factor of statutory aggravation contained within s 21A(2)(eb) is made out. Vulnerability of victim 1. The Crown also submits that the factor of statutory aggravation provided for by s 21A(2)(l) of the Sentencing Act is also made out on the basis that the victim was 11 years of age at the time of the offending. I agree that this factor of statutory aggravation is made out. However, the age of the victim has already been taken into account in determining the objective seriousness of the matter. Accordingly, it would be to double count to give further weight in this sentencing exercise to that factor of statutory aggravation. 2. My understanding of the oral submissions made by counsel for the offender was that he agreed with my proposed approach, i.e. although the factor of aggravation is made out it does not achieve any further weight as the age of the victim is a factor in considering the seriousness of the matter. Criminal History of the offender 1. The offender is now 26 years of age. He has a number of matters recorded against him on his criminal record. These include the matter to which the decision in R v RB [2020] NSWDC 328 relates. That matter involved a charge of Sexual Intercourse with a Person under 10 years of age. He has been before the Court for breaches of the Community Correction Order imposed. He has also been convicted of Resist Police, Drive While Suspended, Mid-Range PCA, Fail to Comply with Reporting Obligations, Common Assault, various regulatory traffic matters and Assault Occasioning Actual Bodily Harm. 2. I note that on 21 March 2022 the offender was sentenced to a total sentence of 9 months with a non-parole period of 5 months for Assault Occasioning Actual Bodily Harm. On 6 April 2022 he was sentenced to a fixed term of 2 months for Larceny. Neither of those sentences were subject to an appeal. 3. With that record, ordinarily the court would be justified in concluding that the offender is not entitled to any particular leniency because of his record. However, the complicating factor in this matter is that the offending occurred in the first half of 2013. The offending with which this court dealt in R v RB [2020] NSWDC 328 occurred in 2010. 4. In the circumstances, namely the offending in 2010, the offender is simply not afforded the leniency he would have received had he been a person of prior good character. Offender under 18 years of age at the time of offending 1. The offender must still receive the benefit of youth given that he was 16 or 17 at the time of the offending. I did not understand either counsel to submit otherwise. In R v RB [2020] NSWDC 328 at [31] I extract at length from the judgment of Bellew J in LS v R [2020] NSWCCA 120, which was handed down after the sentence hearing in the 2020 matter. In that decision Rothman J (Simpson AJA & Bellew J agreeing, both with separate additional comments) said at [58]: "The proposition, that the Applicant was to have been sentenced in accordance with law, does not diminish the relevance and significance of the Applicant's youth. Moreover, the fact that the Applicant is to be dealt with according to law does not displace the general provisions in the Children (Criminal Proceedings) Act concerning the treatment of children under the criminal law: see s 6 of the Act and Paul Campbell v R [2018] NSWCCA 87, [25]-[29]." 1. In that decision Bellew J in his additional comments at [96] said: "As his Honour has pointed out, the applicant was 16 years of age at the time of the offending. The fact of the applicant's age directly engaged the principles applicable to the sentencing of young offenders. A number of those principles were set out by McClellan CJ at CL in KT v R including the following: (i) considerations of general deterrence and principles of retribution are, in most cases of sentencing young offenders, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation; (ii) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age; (iii) where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult; (iv) although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders and there remains a significant public interest in deterring antisocial conduct; (v) the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or a crime of considerable gravity; (vi) in determining whether a young offender has engaged in adult behaviour, the Court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society; and (vii) the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A child offender of almost 18 years of age cannot expect to be treated substantially differently from an offender who is just over 18 years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth." 1. Clearly, the age of the offender at the time of the offending and his immaturity are all factors to be taken into account in the instinctive synthesis approach in determining the appropriate sentence. I have taken into account the provisions of s 6 of the Children (Criminal Proceedings) Act 1987. Delay 1. Mr Mulligan submits that the delay in the matter being reported to the authorities has adversely impacted on his client in four ways, namely: 1. That the offender is denied raising good character; 2. The offender lost the opportunity to have the matter dealt with in the Children's Court; 3. Section 25AA of the Crimes (Sentencing Procedure) Act now applies; and 4. Had the matter been dealt with prior to the 2018 amendments to the Crimes (Sentencing Procedure) Act at least theoretically the offender could have been dealt with by suspended sentence or Intensive Correction Order. 1. On the first of those four factors Mr Mulligan correctly submits that that is muted because of the 2020 matter. The matter could have been dealt with by the Children's Court had the offender been under 21 at the time the matter came to light. I will deal with s 25AA of the Sentencing Act shortly. Counsel for the offender conceded that there would necessarily be imposed a sentence of full time custody in this matter. 2. I was somewhat concerned at the time that counsel was expecting me to go through the various authorities on Intensive Correction Orders and make some type of determination as to whether such a disposition would be appropriate. Following the line of authority in Quinn v DPP (Cth) [2021] NSWCA 294 and Thurlow v R [2022] NSWCCA 20, if it were necessary to decide this issue I would take the view that the offending in this matter was too serious to be dealt by Intensive Correction Order. Further, given the breaches of the Community Correction Order imposed in 2020 and the offending since, I would take the view that full time detention is more likely to deal with the issue of re-offending – see s 66(2) of the Sentencing Act. 3. Further, presuming that I was dealing with the offender as a juvenile - i.e. in accordance with the provisions of the Children (Criminal Proceedings) Act, 1987 - noting the age of the victim, the offending, and the age difference I would conclude that it would have been wholly inappropriate to deal with the matter other than by way of full time detention. 4. I now return to the issue of s 25AA of the Sentencing Act. Adams J (Bell CJ, Button J agreeing) said in Young (a pseudonym) v R at [45]-[50]: "[45] A further factor which arose from the fact that the applicant was not sentenced in the Children's Court was that he did not have a criminal history at the time of the offences. This was a mitigating factor. But he had a criminal history by the time of sentence. Although it is to be accepted that the applicant was unable to demonstrate progress towards rehabilitation, he was also denied the opportunity to come before the court as a person of good character, which he would have had he been sentenced in the Children's Court. [46] These factors all flow from the fact that the applicant was not sentenced in the Children's Court. But it is not only the fact of the delay until he turned 21 that is relevant. The extent of the delay since he turned 21 has also had a significant impact on the sentencing options open to the sentencing judge. Even if the complaint had been made after the applicant turned 21 (and thus could not be dealt with in the Children's Court) but earlier than 2018, the applicant would have been able to be sentenced more leniently based on at least two factors. [46] First, at the time of the applicant's sentencing s 25AA(1) of the Sentencing Act provided that he was to be sentenced "in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence". Prior to the commencement of s 25AA on 31 August 2018, this Court followed the principles derived from MPB v R [2013] NSWCCA 213; (2013) 234 A Crim R 576 at [12] which required that the Court take into account the law as it applied at the time of the offending and not current sentencing law. In the Second Reading Speech to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) in the Legislative Assembly on 6 June 2018 which enacted s 25AA, the Attorney General described the purpose of the amendment in the Second Reading Speech in this way: 'The new s [25AA] inserted into the Act implements one of the Royal Commission's key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetrates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet current community expectations, to the extent possible within the upper limit of the maximum penalty from the time of the offence." (Legislative Assembly Hansard, 6 June 2018) [47] The enactment of s 25AA was to avoid lower sentences being imposed. Had complaint been made prior to 31 August 2018 the applicant would have had the benefit of being sentenced on the basis of sentencing principles at the time. Although it is to be accepted that there was already significant awareness of the impact of child sexual assault at the time of the offending in this matter, the offending behaviour commenced prior to the enactment of standard non-parole periods ("SNPP") in NSW, which is but one indicator of how sentencing for child sexual assault offences has changed since the time of the offending in this matter. By way of illustration, I note that it was not until 2015 that the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) introduced a standard non-parole period of 7 years in respect on an offence under s 66C(1) of the Crimes Act (sexual intercourse with a child aged between 10-14 years). [48] Secondly, on 24 September 2018, the statutory sentencing regime in NSW changed: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). Suspended sentences were no longer an alternative for all offenders and an ICO was no longer available for sexual offenders: s 67(1)(b) of the Sentencing Act. Had the applicant been sentenced at any time after he turned 21 but before 24 September 2018, it would have been open to the sentencing judge to have found that the s 5 threshold had been crossed but to have imposed either a suspended sentence or an ICO to assist in his rehabilitation. [49] It is common for there to be delay in children complaining of sexual abuse. Often a reason for the delay is that the perpetrator of the abuse has threatened the child in some way that there will be negative consequences should the child complain of the sexual assaults. There is no material before the Court as to whether the victim's grandfather made such threats but there is certainly no evidence before the Court that the applicant did. This is no small matter. It is one thing for an offender, such as this applicant, to rely upon delay as a mitigating factor but it is another for an offender whose threats prevented a young victim from coming forward earlier to then seek to rely upon the subsequent delay in mitigation." 1. It should be obvious that I accept for the purpose of sentence that the delay in the matter being reported has had a prejudicial effect on the offender. This is relevant to the instinctive synthesis process of determining the appropriate sentence. Bugmy v The Queen [2013] HCA 37 1. On 7 July 2022 I heard submissions in respect of another charge brought against this offender where the issue was whether the Crown was able to prove beyond reasonable doubt that doli incapax had been rebutted. For reasons published on 5 August 2022 in R v RB [2022] NSWDC 315 I found that the Crown was not able to rebut the presumption. Since then, the Crown notified the court that there will be no further proceedings in that matter. 2. Mr Mulligan correctly submitted on behalf of the offender that some of the evidence I heard in that matter enliven the principles enunciated in Bugmy v The Queen reducing the moral culpability of the offender. The evidence is set out in some detail in that decision at [32]ff. 3. At the sentence hearing I indicated that on the issue of the "Bugmy factors" being enlivened I would prefer the evidence given at the hearing rather than any hearsay accounts in reports or the like. It was my understanding that both advocates accepted that was the appropriate course. 4. When the offender was a young infant of about 1 year 7 months, he ingested alcohol at an after party held at his mother's home after a soccer presentation night. The hospital records noted that the child was unresponsive on presentation. There is a notation in other hospital records indicating that in 1998 (the offender then being about 2 years of age) his mother strangled and punched the child resulting in bruising. On 23 April 2003 the offender ingested the vapour of an aerosol can of water repellent. When he was 7 years of age he was regularly inhaling the vapours of aerosol cans. There was material to suggest that the offender had been sniffing petrol. Given the content of the psychological reports I am satisfied on balance that the offender did sniff petrol. 5. When dealing with the offender in 2020 no submission was made that the "Bugmy factors" were enlivened. To their credit, both advocates in the present matter submitted that I would deal with the matter on the basis of the evidence before me in R v RB [2022] NSWDC 315. Clearly, what have become known in short hand form as the "Bugmy factors" are enlivened to a marked extent reducing the moral culpability of the offender to that same extent. Psychological Reports 1. Exhibit 1 on sentence contains two psychological reports, one prepared by Ms Kris North of Avid Psychology dated 21 October 2022 and the other prepared by John Sheppard dated 22 May 2020, which was tendered in evidence for the offender in the 2020 matter. 2. At paragraph 3 of her report Ms North sets out the dysfunctional family background of the offender including his substance use during adolescence. Further detail of the dysfunctional background are set out at paragraphs 7 and 8 of the report. I have already found the "Bugmy factors" are enlivened. 3. At paragraph 4 she notes that the offender is assessed as posing a well above average risk for recidivism. That is repeated at paragraph 20 of the report. Given this assessment by the psychologist retained on behalf of the offender, together with the criminal history of the offender and the breaches of conditional liberty, I cannot find on balance that the offender is unlikely to reoffend. However, given his age I am not able to find that he is a danger to the community. 4. At paragraph 6 of the report the author sets out that the offender stated that he "knew it was wrong" and expressed regret for the damage the offending had caused both his sister and himself. I am prepared to find on balance the offender is remorseful. 5. The offender left school early in year 11 after completing his year 10 certificate. The offender has had various employment including as an apprentice baker, employment as a labourer, removalist, landscaping and as a fencer. He has since maintained stable employment for approximately three years as a janitor at the Charles Sturt University in Wagga Wagga. 6. The report also deals with the substance abuse history. I have previously dealt that when referring to the matter involving the doli incapax argument. 7. Ms North administered a number of tests. The offender is in the severe range for depressive symptoms at the time of assessment. 8. At paragraph 28 of the report Ms North makes a number of recommendations including that the offender engage in substance abuse treatment to assist him in preventing future relapse to drug use; that he be referred to a sex offence specific treatment; and that upon his release to the community that the offender be supervised by the Department of Community Corrections to ensure that the offender is abiding by his treatment plan. 9. The 2020 report also refers to - but not in much detail - the dysfunctional background of the offender but it does refer to him sniffing petrol in his teenage years. The "fairly challenging upbringing" is also referred to in that report. 10. I am of the opinion that there should be a reasonably generous finding of special circumstances in this matter. The offender is still a young man. The offender is serving his first sentence of full-time custody, and there is a real need for intensive and extensive supervision to ensure that the offender is properly reintegrated into the community upon his eventual release and that he engages appropriately so far as his substance abuse issues are concerned. There is also the issue of partial accumulation given that the sentence I will be imposing will be partially cumulative upon the sentence imposed in the Local Court. 11. However, I cannot find on balance that there are good prospects of rehabilitation. Again I go to the criminal history in the breaches of conditional liberty. Much will depend on how the offender engages with the Department of Community Corrections upon his release and in particular whether he does something meaningful about his substance abuse issues. 12. It would be appropriate for the offender to participate in some type of sex offenders' program while in custody. I will direct that a copy of Ms North's report accompanies a warrant sent to the Department of Corrective Services. General Remarks 1. I have already referred to the issue of partial accumulation. Both advocates addressed this issue in their written submissions. In the course of the sentence hearing I suggested that the appropriate commencement date for the sentence I impose in the matter presently under consideration was 3 January 2022. I did not understand either advocate to dissent from that suggestion. Accordingly, I will commence the sentence on 3 January 2022. 2. The COVID-19 pandemic continues to have an effect on the community and also in correctional centres. The pandemic has meant more frequent and longer lockdowns in correctional centres, severe restriction if not elimination of face to face visits, longer periods of isolation when inmates are moved from one institution to another, and severe restrictions on the ability of inmates to participate in courses, particularly those run by outside agencies. All of these matters mean that custody is more onerous. This also goes to the issue of special circumstances. I note and have regard to authorities such as Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. 3. I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non parole period (although that does not apply in this case) and the offending, clearly in this matter there must be a sentence of imprisonment. Given the operation of s 67 of the Crimes (Sentencing Procedure) Act that must be a sentence of full time custody. There was no submission on behalf of the offender contrary to a sentence of full time custody being imposed in this matter. 2. The sentence imposed will be considerably less than what might ordinarily be imposed in the District Court for an offence contrary to s 61J. However, as I have already made clear the court is sentencing an offender now in his early 20's for offending that occurred when he was 16 or 17. Although neither party has directed my attention to them, I have consulted the statistics kept by the Judicial Commission both for sentences passed in the Children's Court and also this court. However, I also warn myself about the limited utility of the statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 214 especially at [81] per Garling J. I also note the sentence that was passed on appeal in Young (a pseudonym) v R. The subjective case in that matter was however stronger than the subjective case in the matter presently under consideration. 3. In all the circumstances I am of the opinion that the appropriate starting point for the sentence is 2 years 6 months, which with the discount for the plea of guilty produces a total sentence of 1 year 10 months. As I have already set out there should be a substantial finding of special circumstances. Orders In respect of the matter to which the offender has pleaded guilty he is convicted. 1. The offender is sentenced to a non-parole period of 12 months to commence on 3 January 2022 which will expire on 2 January 2023. Thereafter, there will be a period on parole of 10 months to commence on 3 January 2023 and which will expire on 2 November 2023. 2. The offender is to be released to statutory parole at the expiration of the non-parole period. Parole is to be supervised. 3. I direct a copy of the report of Ms Kris North within exhibit 1 to be annexed to the warrant that is sent to the Department of Corrective Services. 4. The non-parole period I have imposed is 55% of the total sentence. The total effective sentence the offender is serving runs from 4 November 2021 and will expire on 2 November 2023. The total period in actual custody is from 4 November 2021 to 2 January 2023. The total period in actual custody is approximately 58% of the total sentence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2022