TH v R

1. [1]

   BELL CJ: I have had the advantage of reading the reasons of Yehia J in draft.

2. [2]

   I agree, for the reasons her Honour gives, that ground one of the appeal and each of the sub grounds contained in it should be rejected.

3. [3]

   I respectfully do not agree, however, with her Honour’s conclusion that the sentence imposed was manifestly excessive even though consideration of the applicant’s youth and serious mental health challenges upon which her Honour places particular emphasis may have supported a slightly lesser sentence. These were not factors, however, which the sentencing judge failed to take into account in what was a careful and closely reasoned sentencing judgment. The sentencing judge’s consideration of these matters may be seen in the extract reproduced at [67] below.

4. [4]

   Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].

5. [5]

   As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”, citing R v Elemes [2000] NSWCCA 235 at [22]-[23].

6. [6]

   In my judgment, that “very heavy practical burden” has not been overcome in the present case. The offending was serious and aggravated by the fact that the victim was only 14 years of age who, by her screaming during the commission of the first offence, had clearly manifested her lack of consent. The sentencing judge expressly found that the applicant was actually aware that the victim was not consenting.

7. [7]

   As Yehia J notes, the victim impact statement recounted the victim’s deep distress and multiple attempts at suicide in the aftermath of the offending. That distress was no doubt exacerbated by the applicant’s tracking the victim and her family who had relocated to Canberra shortly after the offences had been committed, as recounted in Yehia J’s reasons at [31]-[32]. The sentencing judge was satisfied that the victim had suffered harm that is beyond that to be expected from such an offence and that she has suffered substantial harm as a result of the offences.

8. [8]

   In addition, as the sentencing judge recorded, beyond the plea, there was no evidence of any remorse or contrition in this matter.

9. [9]

   Having carefully reviewed the sentencing judgment, I am not satisfied that the sentence imposed was manifestly excessive.

10. [10]

    For these reasons, while I would grant leave to appeal, I would dismiss the appeal.

11. [11]

    GARLING J: I agree with the judgment of the Chief Justice, and with his Honour’s reasons for proposing that the leave to appeal be granted but that the appeal be dismissed.

12. [12]

    No error has been shown with respect to Ground 1, as the judgment of Yehia J shows.

13. [13]

    In my assessment, the sentencing judge carefully considered, and gave weight to, all of the relevant considerations on sentence. Whilst some judges may have imposed a lesser sentence such as that which Yehia J proposes, and would not have fallen into error in so doing, I am unpersuaded that the applicant has demonstrated that his sentence is “manifestly excessive” in accordance with authority: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)].

14. [14]

    YEHIA J: TH (“the applicant”) seeks leave to appeal against the sentence imposed on him by Herbert DCJ (“the sentencing judge”) in the District Court of New South Wales at Newcastle on 10 July 2024, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The applicant was sentenced following pleas of guilty to two offences of aggravated sexual intercourse without consent, contrary to s 61(J)(1) of the Crimes Act 1900 (NSW).

15. [15]

    The applicant was 15 years and 11 months old at the time of offending. The maximum penalty for the offences for which the applicant was sentenced is 20 years’ imprisonment. By reason of his status as a child at the time of the offending, the standard non-parole period has no application.

16. [16]

    The sentencing judge applied a discount of 25 per cent to reflect the utilitarian value of the applicant’s pleas of guilty. After applying the discount, the sentencing judge pronounced an indicative sentence of 2 years and 3 months’ imprisonment for sequence 1 and 3 years’ imprisonment for sequence 3.

17. [17]

    The applicant received an aggregate sentence of 3 years and 9 months’ imprisonment, commencing on 10 July 2024 and expiring on 9 April 2028, with a non-parole period of 2 years and 3 months. The applicant will be eligible to be released on parole on 9 October 2026.

Grounds of Appeal

1. [18]

   The applicant relied on Grounds of Appeal filed on 6 May 2025 as follows:

Circumstances of offending

1. [19]

   The applicant was sentenced on the basis of a Statement of Agreed Facts. The following summary of the facts is taken from the Remarks on Sentence (ROS).

2. [20]

   At the time of offending, the applicant was living with his paternal grandparents, though he would also frequent his father’s home. The victim was 14 years of age. The applicant and the victim met through mutual friends and had been in a relationship for about three months. They often met each other on weekends at the applicant’s home or at other places.

3. [21]

   On 8 September 2022, the applicant messaged the victim asking her to come to his father’s home. The victim knew that her mother would not allow her to go because she had school work, so she arranged for a friend to send her a message pretending to be the victim’s employer asking her to begin work early that day. The victim was working at a restaurant not far from the applicant’s father’s home.

4. [22]

   The victim’s mother dropped her at her place of employment around lunchtime and the victim walked to the applicant’s father’s home. The applicant’s father and stepmother were not present. The applicant and the victim spent some hours watching movies and “hanging out” before the victim went into the applicant’s bedroom to sleep because she was tired. She was wearing black work jeans, a top and jumper, and underwear.

5. [23]

   After some time, the victim woke up to find the applicant was binding her hands together with a black leather belt to the railings at the end of the bed which restrained her. The victim was on her stomach and the applicant was sitting on her legs just above her knees. The victim was not free to move. She was still wearing her shirt but her jeans and underpants had been removed. The applicant bound the victim’s hands so tightly that she felt the blood was being cut off to her hands.

6. [24]

   The applicant then started touching the victim with his hands and he used his fingers to penetrate her vagina. The victim began to kick the applicant but he turned around and held her legs down, or hit the back of her legs in the same spot, which caused bruising in the following days. The applicant then removed his fingers from the victim’s vagina.

7. [25]

   The applicant then inserted his penis into the victim’s vagina and commenced having penile-vaginal intercourse with her. The victim was screaming at him to stop. She was crying. The applicant told her to stop screaming as the neighbours would hear, and pushed her head down onto the bed so that she would be quiet. The victim bit the top of her lip causing it to bleed. She continued trying to kick the applicant off and screaming at him to stop.

8. [26]

   The applicant eventually removed his penis from her vagina and left the room. The applicant was not wearing a condom. The victim did not know whether the applicant ejaculated during the intercourse.

9. [27]

   The victim remained in the applicant’s bedroom for 5-10 minutes, until she could remove the restraints from her hands. She sat on the bed for some time. She noticed that she was bleeding from her vagina when she was putting her pants back on. The victim went out into the lounge where the applicant was watching television. She sat on the opposite end of the couch. The applicant did not say anything to her and acted as though nothing unusual had happened.

10. [28]

    The victim said that she needed to go to work and she left. She walked to a nearby park where she sat for over an hour. When she arrived at work, she was late. The applicant and his father later attended the restaurant where the applicant purchased a meal.

11. [29]

    Approximately one week later, the applicant asked the victim to go to the movies with him. The victim complied. She gave the applicant some of his personal items. She has not seen the applicant in person since that day. The victim and her family moved to Canberra in late September 2022. The victim did not inform the applicant of the move.

12. [30]

    A few weeks later, the victim was communicating with two of her friends, aged 13 and 14, in a group chat. They both knew the applicant. The victim sent a message stating that she had been raped by the applicant. The 13-year-old friend took a screenshot of this message and showed it to her school counsellor, who made a mandatory report.

13. [31]

    On 23 September 2022, police received notification of the disclosure. On 24 October 2022, the victim participated in a recorded interview where she disclosed the offences. On 2 December 2022, the victim’s mother received a text message from the applicant which said:

14. [32]

    The applicant sent a screenshot of a Google search for the victim’s school, followed by another message stating, “And that’s the school you put [the victim] in”.

15. [33]

    The victim’s mother advised the police of the messages and the police applied for, and were granted, an apprehended violence order for the protection of the victim and her mother.

16. [34]

    On 14 April 2023, the applicant was arrested.

Remarks on sentence

1. [35]

   In determining the objective seriousness of each offence, the sentencing judge found that the age of the victim was a circumstance of aggravation. Her Honour also referred to specific aspects of the offending that informed the objective seriousness, noting the following:

2. [36]

   The victim was screaming at the applicant to stop and physically resisting. It was apparent that she was not consenting to the sexual intercourse and the applicant knew that the victim was not consenting.

3. [37]

   The sentencing judge found that sequence 1 (the digital penetration) was below the mid-range of objective seriousness.

4. [38]

   The sentencing judge found that sequence 3 involved unprotected penile-vaginal sexual intercourse with a 14 year old victim, which exposed the victim to the risk of pregnancy and disease. Her Honour found that sequence 3 was “the more serious offence” but was still below the mid-range of objective seriousness.

5. [39]

   The sentencing judge had regard to a victim impact statement provided by the victim which disclosed her deep distress and multiple attempts at suicide in the aftermath of the offending. The sentencing judge found that the victim had suffered substantial harm as a result of the offences, beyond that to be expected from such offending.

6. [40]

   The sentencing judge had regard to a report prepared by Ms Paige Cornell, clinical psychologist, dated 1 May 2024. In addition, a Youth Justice report, dated 31 May 2024, set out a summary of the applicant’s background. The applicant’s grandmother also gave evidence in the sentencing proceedings.

7. [41]

   The applicant was 15 years and 11 months old at the time of offending. He was 17 years old at the time of sentencing. He is the second eldest of four children. The applicant lived with his parents for the first years of his life until they separated, and he was placed in the care of his grandparents. His grandparents were awarded custody of all four children when the applicant was aged five.

8. [42]

   The applicant experienced significant neglect, in addition to exposure to substance abuse and violence whilst in the care of his parents. He reported no memory of those years although was aware (or had become aware) that their living conditions were “not the best”. The applicant has had inconsistent contact with his mother and reported more frequent contact with his father.

9. [43]

   Ms Cornell concluded that the applicant had been exposed to a number of developmental vulnerabilities as a child. Specifically, he experienced significant neglect and attachment disturbance. He was exposed to substance abuse and violence. Ms Cornell opined that the applicant’s exposure to such development vulnerabilities elevated his risk for multiple forms of psychopathology and other health risks.

10. [44]

    The applicant’s grandparents have provided him with a safe and stable home since he was taken into their care. His grandmother is identified as his main carer. The applicant continues to experience a “tumultuous” relationship with his grandfather.

11. [45]

    The applicant had little memory of primary school but reported that he “hated” high school. His dislike of high school was associated with difficulties completing schoolwork and disagreements with his teachers. He explained that he believed he was placed in classes which were beyond his ability at the time, leading to an increased sense of struggle. He also reported experiencing bullying at school.

12. [46]

    His mental health issues (summarised below) impacted his ability to get out of bed and he refused to attend school. His poor engagement led to enrolment at a specialist school. He was requested to leave that school part way through year 10 due to the current charges.

13. [47]

    The applicant identified one close friend with whom he connected outside of school, however a rupture in their relationship occurred when the applicant was 15 years old. It was around this time that the applicant’s mental health began to deteriorate, and he refused to attend school.

14. [48]

    The applicant described a history of difficulties getting along with others. The applicant’s grandmother noted a tendency for the applicant to become easily agitated and engage in aggressive and violent behaviour. The applicant explained that it is in the context of such arguments that he experiences urges to self-harm accompanied by feelings of worthlessness. His history of interpersonal difficulties indicates a sensitivity to perceived criticisms or rejections, which he internalises.

15. [49]

    Ms Cornell observed that overall, the applicant is socially isolated and struggles to develop close connections. He appears to respond to conflict by ceasing contact with others, engaging in violent and aggressive behaviour or avoiding others. The applicant lacks the relevant skills to navigate interpersonal relationships appropriately.

16. [50]

    The applicant identified one previous significant intimate relationship which was with the victim. When they met, he was 15 years old and she was 13. They began communicating online and then met in person. The relationship began in May 2022. In addition to this relationship, the applicant reported multiple casual sexual partners.

17. [51]

    The applicant reported becoming sexually aware around the age of 14. He identified the school curriculum as his predominant source of sexual education. He reported otherwise learning about sex through viewing pornography and through his sexual experiences.

18. [52]

    The applicant reported a good understanding of consent although his views about women demonstrated difficulty in considering them beyond an extension of himself, as a male. Ms Cornell noted some areas of concern in the applicant’s account of his sexual history and functioning. The areas of concern included the higher number of sexual partners than would be typical for someone of his age and his poor ability to develop meaningful relationships with others, suggesting that he used sex as a function to connect with others.

19. [53]

    Ms Cornell also noted that in the context of the applicant’s “denial of any sexually deviant interests, the violent nature of his offending and his lack of awareness of viewing pornography depicting themes of violence or coercion suggests that [his] reliance on pornography as sexual education has led to a normalisation of sexual violence, or sanitisation of his account.”

20. [54]

    The applicant has been engaged with a clinical psychologist, Dr Natalie Smith, since about the age of 5, with a focus on emotional regulation. The applicant’s grandmother reported witnessing a suicide attempt by the applicant when he was 5 years old. The applicant’s engagement in treatment over the years has been sporadic. He engaged in three sessions in 2011. He returned for treatment in 2017 and attended five sessions for assistance with oppositional defiant disorder. The applicant reportedly engaged in treatment again in 2019 to address emotional regulation, assertive communication, problem-solving and exploration of school, family and friendship concerns. Dr Smith reported that the applicant refused to attend sessions in early 2022, in the context of a significant deterioration in his mental health and a subsequent suicide attempt.

21. [55]

    The applicant reported that he had become concerned about his mental health around the age of 14 or 15. He recalled engaging in self-harming behaviours from around the age of 14 and attempted suicide via hanging at the age of 15 following issues at school and conflict with a friend. He continued to engage in self-harming behaviour in the two years leading up to sentence. The applicant reported experiencing urges to self-harm in the context of feeling worthless and low in mood.

22. [56]

    The applicant’s grandmother reported that the applicant had become “relaxed” in taking his medication in the period leading up to the offences. The applicant was admitted to the Nexus Child and Adolescent Mental Health Unit for a short period in June 2022 following his suicide attempt.

23. [57]

    The offences were committed on 8 September 2022, only 2-3 months after his discharge from the Mental Health Unit.

24. [58]

    Ms Cornell undertook psychological testing using the Behaviour Assessment System for Children – Third Edition (BASC-3). The applicant and his grandmother completed the test. The results suggested behavioural regulation difficulties and conduct and aggression problems. Ms Cornell noted that the applicant may have been experiencing an increased level of internal distress characterised by depressed mood, and that such emotional distress may have contributed to his behavioural issues.

25. [59]

    Ms Cornell opined that the applicant exhibited below average social skills and may have problems with self-stimulation and inappropriate socialisation. The applicant struggles to relate to others resulting in difficulties forming and maintaining meaningful friendships and engaging in appropriate intimate relationships.

26. [60]

    The applicant perpetrated the offences at a time when he was experiencing significant mental health concerns and not attending school regularly. He was regularly viewing pornography as a means to regulate his sexual urges. The frequency with which he accessed pornography was beyond what would be considered typical for his neurodevelopmental stage and suggestive of some sexual preoccupation.

27. [61]

    Ms Cornell noted that although the applicant denied consumption of pornography depicting violence and coercion, it is possible that his perception of violence or coercion in sexual relationships is desensitised due to his significant history of pornography use and an apparent lack of sufficient appropriate sexual education.

28. [62]

    In the years that have passed since the applicant’s offending, he appears to have become more socially isolated although his mood difficulties appear to have improved to some extent. He continues to struggle with affective and behavioural regulation in the context of stress.

29. [63]

    Ms Cornell acknowledged the caution that must be exercised in assessing risk in the case of adolescents. Ms Cornell noted the following:

30. [64]

    Following a consideration of the items included in the Protective and Risk Observations for Eliminating Sexual Offence Recidivism (PROFESOR), Ms Cornell identified three protective factors, nine risk factors and eight neutral factors. Ms Cornell recommended that the applicant engage in psychological intervention to address his affective and behavioural regulation and depressive symptoms. He would also benefit from offence specific intervention to explore issues in his social and relationship functioning and their connection to his offending in this matter.

31. [65]

    Following a comprehensive summary of the applicant’s subjective case, the sentencing judge endorsed the view that:

32. [66]

    Her Honour accepted that the applicant’s childhood was “sufficiently supported” by his paternal grandparents from the age of 5. However, whilst in the care of his parents in his early childhood, the applicant experienced significant neglect and instability.

33. [67]

    Under the heading “Moral Culpability”, the sentencing judge found:

34. [68]

    The sentencing judge found that beyond the plea of guilty, there was no evidence of remorse or contrition. However, her Honour noted that the applicant has no prior convictions and accepted that he was a person of prior good character. Furthermore, the applicant had not committed any offences since the commission of the subject offences. The sentencing judge was satisfied that the applicant had good prospects of rehabilitation and was unlikely to reoffend.

35. [69]

    The sentencing judge made a finding of special circumstances having regard to the matters raised with respect to the applicant’s moral culpability and that the applicant would benefit from an extended period of supervision to engage in treatment and support services.

36. [70]

    The sentencing judge considered totality “an important consideration” because the offences occurred within one episode of criminality.

Consideration of Grounds 1(a)-(c)

1. [71]

   Although Grounds 1(a)-(c) are discrete sub-grounds, it is appropriate to deal with them together because each involves a complaint that the sentencing judge failed to give sufficient weight or “fulsome” consideration to subjective factors, namely youth, mental health and deprived background. The applicant contends that the sentencing judge erred by failing to give proper regard to the applicant’s youth and the applicant’s mental health background in assessing moral culpability and determining the weight to be afforded to general and specific deterrence. The applicant also contends that the sentencing judge erred by diminishing the disadvantage suffered by the applicant, thereby misapplying the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

2. [72]

   A ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”). It is well-established that merely claiming that insufficient weight, or excessive weight, was given to one factor is an unpromising basis for establishing House v The King error: R v White [2025] NSWCCA 111 at [30]-[32], [88]-[89] (Bell CJ, Payne JA and N Adams J agreeing); Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16] (Bathurst CJ and Leeming JA agreeing with Bell P); R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing); Vaiusu v R [2017] NSWCCA 71 at [29] (R A Hulme J, Bathurst CJ and Beech-Jones J agreeing). Matters of weight are very much in the province of the sentencing judge.

3. [73]

   The applicable principles were summarised by Wilson J (Kirk JA and Fagan J agreeing) in WW v R [2023] NSWCCA 311 as follows:

4. [74]

   Grounds 1(a) to 1(c) should be dismissed for the following reasons.

5. [75]

   The sentencing judge did address the applicant’s youth, mental health issues and background of disadvantage. While it is true that her Honour did so in a concise manner, regard must be had to the fact that this was an ex tempore judgment. Sentencing judges dealing with busy lists and high-volume sentencing work cannot be expected to set out at length all the various relevant principles and how they might or might not operate in a given case. This Court has acknowledged on a number of occasions the pressures the judges of the District Court are under in managing busy lists often containing multiple sentencing proceedings. Ex tempore judgments should be considered with a degree of latitude: BAP v R [2024] NSWCCA 206 at [89] (Yehia J, Wright and Cavanagh JJ agreeing); Buxton v R [2017] NSWCCA 169 at [53] (Bathurst CJ and Walton J); Aiga v R [2024] NSWCCA 175 at [67] (N Adams J, Ierace and Sweeney JJ agreeing); Eldridge v R; Mackay v R [2015] NSWCCA 127 at [91]-[95] and [102]-[105] (Johnson J, Hoeben CJ at CL and Hamill J agreeing).

6. [76]

   That said, even reasons given ex tempore must provide an explanation of how issues in dispute were resolved, why they were resolved in a particular way and how the sentence imposed was arrived at: Buxton v R [2017] NSWCCA 169 at [53] (Bathurst CJ and Walton J); Lee v R [2016] NSWCCA 146 at [34] (Basten JA and McCallum J, Davies J agreeing); Cowan v R [2015] NSWCCA 118 at [60] (Bellew J, Bathurst CJ and Simpson J agreeing); Gal v R [2015] NSWCCA 242 at [39] (Beech-Jones J, Bathurst CJ and Price J agreeing).

7. [77]

   Following a comprehensive summary of the applicant’s subjective case, the sentencing judge addressed the applicant’s moral culpability. The sentencing judge found that the applicant did have a background of “some disadvantage”. The applicant contends that by using the word “some”, the sentencing judge mischaracterised and understated the impact of the disadvantage experienced by the applicant.

8. [78]

   This complaint is not made out. There is no dispute that the sentencing judge did produce a comprehensive summary of the applicant’s subjective case. The reference to “some disadvantage” read in the context of the overall remarks on sentence, was a reference to the entirety of the subjective history placed before her Honour. That history included that the applicant had experienced a period of significant neglect and disadvantage in his early years which was followed by a period of stability in the care of his grandparents and, in particular, his grandmother.

9. [79]

   The use of the descriptor “some disadvantage” was not a mischaracterisation or understatement of the background that had been comprehensively summarised, but rather a reference to the entirety of that background including the period of stability.

10. [80]

    The sentencing judge had regard to the history of disadvantage together with the history of being bullied in concluding that “these are matters which have impacted on his mental health” (emphasis added). The sentencing judge then found that the offences were committed in the context of deteriorating mental health and concluded that the applicant did have “reduced moral culpability”, adding that he had “fewer emotional resources to guide his decisions”.

11. [81]

    The contention that the absence of any express reference by the sentencing judge to the decision of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) yields a conclusion that her Honour failed to take into account a material consideration for the purpose of House v The King, cannot be sustained. The comprehensive summary of the applicant’s subjective case demonstrates that the sentencing judge was very much alive to the applicant’s mental health issues and expressly referred to them in finding that his moral culpability is reduced.

12. [82]

    The complaint that the sentencing judge did not determine that the applicant’s moral culpability was significantly reduced, is not a failure to take into account a material consideration.

13. [83]

    In addition to the applicant’s mental health and background of disadvantage, the sentencing judge separately considered the applicant’s youth and immaturity as matters that contributed to the commission of the offences. The principles applicable to sentencing children are well settled: KT v R (2008) A Crim R 112; [2008] NSWCCA 51 (“KT”); BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (“BP”); JA v R [2021] NSWCCA 10. Those principles were recently summarised by me in TM v R [2023] NSWCCA 185 (“TM”) (Payne and Stern JJA agreeing).

14. [84]

    Although the sentencing judge did not expressly refer to these authorities, her Honour commenced the ROS by observing that although the applicant must be sentenced according to law, principles pursuant to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) were relevant and should be taken into consideration.

15. [85]

    In the comprehensive summary of the applicant’s subjective case, the sentencing judge referred to the applicant’s young age on multiple occasions. In summarising Ms Cornell’s report, the sentencing judge referred to the impact on children who experience adversity at a young age, including compromised executive functioning, difficulties with regulation and impaired social language development.

16. [86]

    The sentencing judge acknowledged the presence of a number of concerns including social, psychological and sexual functioning. Her Honour said that “[h]e also presents as a vulnerable young man who is yet to form a strong sense of identity and is not well connected to others” (emphasis added).

17. [87]

    The relative importance of youth as a factor in sentencing is determined by the circumstances in the individual case. The sentencing judge determined that the applicant’s youth had “some impact on the weight to be given to the considerations of general deterrence”. This acknowledgement was a recognition of the general principles that in sentencing youth, general deterrence may be of less significance and considerations of rehabilitation may be of more significance.

18. [88]

    However, the sentencing judge concluded that this principle “yields to others where young offenders commit crimes of an adult nature”. In such a case, the moderation of general deterrence will not be as significant. The sentencing judge determined that this was such a case.

19. [89]

    In the course of oral submissions, the contention that the sentencing judge had erred by failing to have proper regard to the applicant’s youth in assessing his moral culpability and the weight to be afforded to general and specific deterrence was developed, culminating in the assertion that it was not open to the sentencing judge to find that the applicant’s offending was “adult like conduct”.

20. [90]

    As already alluded to, there is authority for the proposition that the emphasis given to rehabilitation may be moderated when the young person has conducted themselves in the way “an adult might conduct him or herself and has committed a crime of violence or considerable gravity”: KT at [25] (McClellan CJ at CL).

21. [91]

    This principle pre-dates KT and has been endorsed in decisions of this Court post-dating KT: see, for example, Tamer v R [2020] NSWCCA 333 at [46]-[49] (Bellew J, Brereton JA and Campbell J agreeing); Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 (“Singh”) at [36]-[45] (Bell P, Johnson and R A Hulme JJ agreeing); CW v R [2022] NSWCCA 50 at [65] (Hamill J, Johnson and Rothman JJ agreeing); R v Karim [2024] NSWCCA 234 at [79] (Mitchelmore JA, Davies and Campbell JJ agreeing).

22. [92]

    That is not to ignore however that precisely what constitutes “adult like conduct” is difficult to define. The indicia of “adult like conduct” can be vague, equivocal or obscure. This is particularly so in the contemporary world where children have increasing access to information, images and depictions of conduct, through social media and other digital sources, including access to pornography. Even in cases of serious offending, while the acts may resemble “adult like conduct”, one should not lose sight of the fact that where the offender is a child, neurodevelopment, emotional maturity, impulse control and consequential thinking is less advanced than it is in adults. The courts should not be “…over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult”: BP at [6] (Hodgson JA).

23. [93]

    As I said in TM at [49]:

24. [94]

    The efficacy of labels such as “adult like conduct” may be questionable in some cases. The essential issue is an assessment of the objective seriousness of the offending, which is informed by factors which include, but are not limited to, the nature and circumstances of the offence, degree of planning, premeditation, sophistication and organisation, the use of weapons, and the existence of an extensive criminal history: Singh at [37] (Bell P, Johnson and R A Hulme JJ agreeing).

25. [95]

    The applicant does not take issue with the statement of principle that the emphasis given to rehabilitation may be moderated when the young person has engaged in “adult like conduct”. Instead, the applicant contends that it was not open to the sentencing judge to make that finding in this case. The applicant’s conduct is described as “an ineffectual and childish attempt at restraint from which the victim was able to self-release”.

26. [96]

    I do not agree with that characterisation of the applicant’s conduct. The offending cannot be described as impulsive. There was a “degree of premeditation”, perhaps better described as a degree of “deliberation” on the part of the applicant. Importantly, the applicant was aware the victim was not consenting and persisted in his sexual violence notwithstanding her distress and resistance. In the circumstances, it was open to the sentencing judge to assign importance to general deterrence while attenuating the principles relevant to sentencing youth.

27. [97]

    The applicant’s complaint that the sentencing judge erred by failing to address how the applicant’s youth and mental health issues impacted upon the assessment of specific deterrence, is also unsustainable. The contention appears to be that in failing to specifically address specific deterrence, given the sentence that was ultimately imposed after application of the discount, the sentencing judge somehow took it into account, against the applicant, in determining the proportionate sentence.

28. [98]

    In some cases, a failure by a sentencing judge to refer to a principle may be taken as indicating that the judge did not take that matter into account. In other cases, it may be clear from the reasoning that although no reference is made to the principle, it was in fact taken into account: Cameron v R [2013] NSWCCA 224 at [29]-[32] (Hoeben CJ at CL, Bellew J and Barr AJ agreeing); Church v R [2012] NSWCCA 149 at [36] (Button J, McClellan CJ at CL and Price J agreeing).

29. [99]

    Unsurprisingly, the sentencing judge did not refer to specific deterrence because the applicant had no criminal convictions or history of non-compliance and was assessed as having good prospects of rehabilitation and being unlikely to reoffend. Given the applicant’s subjective case and her Honour’s findings, it was not necessary to give any weight to the need to specifically deter the applicant.

30. [100]

    It is noteworthy that no oral submissions were made by the applicant or the Crown during the sentencing proceedings to suggest that specific deterrence was a relevant factor. The Crown’s written submissions made only general reference to the purposes of sentencing and the applicant’s written submissions did not refer to specific deterrence at all but rather submitted that the applicant had no criminal history and was unlikely to re-offend.

31. [101]

    It is clear to me that the fact that her Honour did not refer to specific deterrence allows an inference to be drawn that her Honour did not take specific deterrence into account as a matter that operated unfavourably for the applicant.

32. [102]

    The complaint that the sentencing judge failed to give “fulsome” consideration to the applicant’s youth, mental health and deprived background, does not establish House v The King error. The contention that the sentencing judge gave insufficient weight to these factors is relevant to Ground 2, which asserts that the sentence is “unreasonable or plainly unjust”.

33. [103]

    Accordingly, Grounds 1(a)-(c) are not made out.

Consideration of Ground 2

1. [104]

   The principles applicable to a complaint that a sentence is manifestly excessive were summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443], as follows:

2. [105]

   The principles expressed in Obeid were cited with approval by Bell CJ (Stern JA and Button J agreeing) in Astill v R [2024] NSWCCA 118 at [77].

3. [106]

   In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, after summarising the principles applicable to determining whether a sentence is manifestly excessive, Bell P (Gleeson and McCallum JJA agreeing) continued as follows:

4. [107]

   To this analysis I would adopt the observations of Payne JA and Button J (Schmidt J in dissent) in Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 at [9]:

5. [108]

   Although the sentencing judge concluded that rehabilitation “yields” to general deterrence where a young offender commits crimes of an adult nature, her Honour assessed each offence as falling below the mid-range of objective seriousness.

6. [109]

   To the extent that there was “a degree of premeditation”, it was relatively low. There was no evidence that the applicant intended to have nonconsensual sexual intercourse with the victim when he invited her to his father’s home. The facts are that upon her attendance they spent some hours watching movies and “hanging out” before the victim went to the offender’s bedroom to sleep because she was tired.

7. [110]

   The “premeditation” must have only consisted of a few minutes prior to the sexual assaults. Essentially, the time required to retrieve the belt and bind the victim’s hands to the end of the bed. What ensued was serious criminal conduct committed in the face of the victim’s distress and resistance. However, the criminal conduct did not involve planning and organisation or sophistication.

8. [111]

   The applicant was not yet 16 years of age at the time of the offending. He had long-standing mental health issues, having reportedly first attempted suicide at the age of 5. The applicant engaged in psychological counselling in 2011, when he was 5, and returned to therapy in 2017 and 2019. Information provided by his clinical psychologist suggested a history of significant affective and behavioural regulation difficulties, including experiencing thoughts of suicide and engaging in self-harming behaviours. Only 2-3 months before the applicant committed these offences, he was admitted to the Nexus Child and Adolescent Mental Health Unit for a short period, following a suicide attempt. This is a very powerful factor underpinning a reduction in moral culpability.

9. [112]

   Although the applicant experienced a period of stability in his formative years, the unchallenged history is that whilst in the care of his biological parents in his early childhood, he experienced significant neglect and instability and was exposed to parental substance abuse and violence. It is noted that the applicant would have experienced a significant attachment disruption in the context of the changes in his care at a young age.

10. [113]

    The interrelated issues of a history of significant neglect and instability in early childhood and deteriorating mental health leading up to the offences operated to reduce the applicant’s moral culpability.

11. [114]

    Notwithstanding the applicant’s limited remorse, specific deterrence and the protection of the community had little, if any, work to do because the applicant was found to have good prospects of rehabilitation and is unlikely to reoffend. Ms Cornell noted that the applicant’s family was supportive (particularly his grandmother) and that he was engaged in psychological treatment.

12. [115]

    The applicant had no criminal convictions and no history of non-compliance with court orders. He was subject to stringent bail conditions for a period of nearly 15 months prior to the sentencing proceedings and did not breach these conditions. This was an isolated episode of offending.

13. [116]

    There is no doubt that these offences involve serious criminal conduct warranting a period of full-time detention. However, they were committed by a child whose mental health was deteriorating in the months leading up to the offending conduct. The applicant was a person of prior good character with no criminal record and no subsequent offending whilst on bail awaiting sentence. He has good prospects of rehabilitation and is unlikely to reoffend. In all the circumstances, I am of the view that the aggregate sentence went beyond what might be described as a “stern” or “harsh” sentence and is manifestly excessive.

14. [117]

    Accordingly, I would uphold Ground 2.

Resentence

1. [118]

   Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act 1999 (NSW) and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

2. [119]

   An affidavit affirmed by the applicant on 23 May 2025, affidavits affirmed by the applicant’s solicitor, Mr Julian Stevens on 6 May 2025 and 23 May 2025, and an affidavit affirmed by the applicant’s paternal grandmother on 29 May 2025 were read on the usual basis without objection, subject to a limited objection to a portion of the report annexed to the affidavit of Mr Stevens dated 6 May 2025. I have made reference to the content and annexures of these affidavits below.

3. [120]

   On 13 December 2024, the applicant was assessed by Dr Sarah Griffith, clinical neuropsychologist. Dr Griffith produced a report dated 11 February 2025. The respondent objected to three paragraphs of Dr Griffith’s report ([29]-[31]). It was submitted that the Court could not give meaningful weight to Dr Griffith’s “speculative” opinion on emerging possible diagnoses which appear unclear or are unknown. It was submitted that this portion of Dr Griffith’s report is irrelevant and should not be admitted on the usual basis. I have not had regard to these three paragraphs on resentence.

4. [121]

   Dr Griffith’s summary of the applicant’s background and history of mental health issues is consistent with that provided by Ms Cornell. The applicant has attempted suicide on multiple occasions, including at the age of 5 and shortly before the offending. Dr Griffith opined that the applicant has the cognitive resources to engage in rehabilitation programs, including psychological therapy. The applicant has been engaged with a psychologist and a case worker whilst in custody.

5. [122]

   The applicant deposed that since entering custody, he has had one misbehaviour report which was for swearing at someone. The applicant has been assaulted on a couple of occasions by other young people but has not retaliated. The applicant has the support of his family and receives weekly visits from them. Since entering custody, the applicant has remained compliant with his anti-depressant medication.

6. [123]

   The applicant has completed several programs in custody, including Traffic Control Work Training, a First Aid course, and Warehouse Supply Chain Training.

7. [124]

   On 30 January 2025, the applicant was transferred to a Pre-Release Unit due to his mature behaviour and positive engagement. The applicant is at the highest level of a 4-stage incentive scheme, which recognises ongoing positive behaviour and role modelling, active engagement in case plan interventions, progress toward goals and positive participation in unit activities and centre programs.

8. [125]

   In custody, the applicant has commenced “Changing Habits and Reaching Targets (CHART)”, a Youth Justice evidence-based intervention program targeting specific criminogenic domains. The applicant has completed the following modules: Motivation to Change; Healthy Relationships; Problem Solving; Understanding Anger; and Alcohol and Other Drug Education. The applicant has also commenced “Let’s Get Relationship Ready”, another Youth Justice program to address unhealthy behaviours by young people in relationships.

9. [126]

   The applicant attends weekly counselling with the psychologist at the youth justice centre. The applicant has also commenced studying the year 11 Preliminary Higher School Certificate and engaged in various extracurricular activities.

10. [127]

    Like the sentencing judge, I find that each offence falls below the middle of the range of objective seriousness, with the sexual assault taking place second in time being the most objectively serious.

11. [128]

    A matter of some significance, is the evidence contained in the report of Ms Cornell (at [73]) that adolescents who engage in harmful sexual behaviours differ in meaningful ways to adults who sexually offend and should not be treated in the same manner. It is typical for adolescents to demonstrate poor behavioural and affective self-regulation skills, poor planning and consequential thinking and impulsive behaviour. It is in this context that the applicant’s moral blameworthiness should be assessed.

12. [129]

    I find that the interrelated subjective circumstances of the applicant’s youth, background of disadvantage and mental health issues, operate to reduce his moral culpability and the weight to be afforded to denunciation.

13. [130]

    I find that the applicant has good prospects of rehabilitation and is unlikely to reoffend. Specific deterrence and the protection of the community are of little significance in this case. As outlined above, not only was the applicant a person of good character with no criminal record, but he did not reoffend whilst subject to bail.

14. [131]

    The applicant must be held to account and the harm to the victim acknowledged. The victim impact statement demonstrates that the victim has suffered “tremendously” across every aspect of her life. She was so distressed following the incident that she made a number of suicide attempts. I accept that the victim suffered substantial harm.

15. [132]

    General deterrence remains a relevant consideration to which weight must attach because of the nature and circumstances of the offending and in particular the applicant’s persistent sexual violence in the face of resistance by the victim. However, recognising the capacity for young people to reform and mould their character to conform to society’s norms, rehabilitation is a significant consideration. The applicant’s rehabilitation has been largely demonstrated by the material that has been tendered on the usual basis. He appears to have made significant progress.

16. [133]

    I am not persuaded that the sentence for one offence can wholly comprehend the criminality involved in the other. However, the offences constitute one episode of criminal offending, and the degree of notional accumulation will not be significant having regard to the principle of totality.

17. [134]

    I make a finding of special circumstances warranting a variation of the statutory ratio because the applicant would benefit from an extended period of supervision to ensure that the applicant has an adequate opportunity to engage in counselling and treatment for his mental health issues and to readjust to life in the community.

18. [135]

    Like the sentencing judge, I am satisfied that special circumstances exist justifying the detention of the applicant as a juvenile in a juvenile detention centre: s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW).

19. [136]

    In resentencing the applicant, I propose the following indicative sentences, applying a discount of 25 per cent to reflect the utilitarian value of the applicant’s pleas:

    1. (1)

       Sequence 1: an indicative sentence of 1 year and 9 months’ imprisonment.

    2. (2)

       Sequence 3: an indicative sentence of 2 years and 3 months’ imprisonment.

20. [137]

    I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the sentence imposed on the applicant in the District Court on 10 July 2024, and in lieu thereof sentence the applicant to an aggregate term of 2 years and 9 months’ imprisonment commencing on 10 July 2024 and expiring on 9 April 2027, with a non-parole period of 1 year and 9 months’ imprisonment. The applicant will be eligible to be released on parole on 9 April 2026.

    4. (4)

       The applicant is to serve the whole of his sentence as a juvenile offender pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW).