R v KL [2019] NSWDC 731

District Court New South Wales

Medium Neutral Citation: R v KL [2019] NSWDC 731 Hearing dates: 21 November, 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: Aggregate sentence 2 ½ years, non- parole period 15 months. The sentence is to be served in a Juvenile Detention facility Catchwords: SENTENCE – sexual intercourse with child under 10 years – carnal knowledge – juvenile detention centre-protected custody – sex offender programs – prospects of rehabilitation Legislation Cited: Children (Community Service Orders) Act Children (Detention Centres) Act 1987 Children's (Criminal Proceedings) Act Crimes Act 1900 Cases Cited: BM v R [2019] NSWCCA 223 Muldrock v R [2011] HCA 39 at [27 Paul Campbell v R [2018] NSWCCA 87 at [26] R v AA [2017] NSWCCA 84 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Regina (Crown) KL (Offender) Representation: Counsel: Mr Campbell for the Crown Mr Watts for the Offender

Solicitors: Ms. D. Collin (DPP) Mr. H Vandugteren (Legal Aid) File Number(s): 2016/321397

Judgment 1. The offender was a child at the time of committing the offences the subject of these reasons. The victim of these offences was also a child at the time of the offending. The offences are two counts of sexual intercourse with a child under the age of 10 in breach of section 66A(1) of the Crimes Act 1900. For these reasons pursuant to section 578A of the Crimes Act and section 15A of the Children's (Criminal Proceedings) Act the names and places relevant to these events will be anonymised. The maximum sentence for each charge is life imprisonment with a standard non-parole period of 15 years though the SNPP only applies to adult offenders and thus not this offender. 2. The agreed facts will be set out below. At the outset three significant aspects of the matter can be noted, two of them factual and one legal. The first factual matter is that the victim in this case was seven years old at the time the offender, her 16-year-old half brother, had penile / vaginal sexual intercourse with her and subsequently digital intercourse. The second factual matter is that on one possible view the offender comes from a family that does not consider it to be wrong for a 16-year-old half brother to be having sexual intercourse with his seven-year-old half sister. The view I take is that the situation is not as simple as that and this will be discussed below. The significant legal aspect of the matter is the interrelationship of the Crimes (Sentencing Procedure) Act (CSPA), the Children (Criminal Proceedings) Act (CCPA) and the Children (Community Service Orders) Act (CCSO).