JL v R

1. [1]

   HAMILL J: I have the great advantage of reading in draft the judgment of Sweeney J. I agree with the orders proposed by her Honour and with her Honour’s reasons. On the issue of re-sentence, I accept that this was very serious sexual offending which took place in the victim’s home and with significant trauma occasioned to the victim. Against that, the applicant was very young at the time of the offences and presented with significant personal and neurological difficulties which bore upon his moral culpability and required a structured sentence involving a lengthy period of supervision upon his release. The total aggregate sentence settled upon by Sweeney J reflects the objective circumstances of the offending and the substantial period of parole will foster the applicant’s rehabilitation and re-entry into the community.

2. [2]

   Since circulating my brief note concurring with the orders proposed by Sweeney J and agreeing with her Honour’s reasons, I have had the benefit of reading the short judgment of N Adams J. I agree with what her Honour has written. As to her Honour’s remarks in paragraph [5] I repeat what I said in Luque v R [2017] NSWCCA 226 at [114]-[115]:

3. [3]

   N ADAMS J: I agree with the orders proposed by Sweeney J for the reasons provided by her Honour. I wish to add the following to the reasons provided by her Honour.

4. [4]

   As for Ground 1(a), there was unchallenged expert evidence from Patrick Sheehan, forensic psychologist, that the appellant suffered from, inter alia, the neurodevelopmental disorders of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder and that the features associated with these disorders “have also likely contributed to his current offending in a material way”. This language is consistent with what this Court observed in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] where it was held that “[w]here the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced” (emphasis added). The sentencing judge accepted this evidence but held that it “cannot account for his actions entirely”.

5. [5]

   The difficulty with his Honour’s approach to the evidence of the applicant’s mental health is that there is no requirement for it to “entirely” account for an offender’s actions before a finding can be made that moral culpability is reduced. Although it would have been open to his Honour to find that the applicant’s moral culpability was only reduced to a small extent on account of his mental health, that is not what his Honour did. Instead, he went on to observe that he was “not persuaded in considering the conduct involved in the present offending that there is the type of causal connection that would have the effect of reducing moral culpability”. Accordingly, his Honour made no reduction at all. I am satisfied that his Honour misapprehended the relevant test. The question was whether the applicant’s mental conditions contributed to the commission of the offence in a material way; not whether they entirely accounted for his actions.

6. [6]

   At the hearing of this appeal, it was accepted on behalf of the Crown that the combination of the applicant’s youth and immaturity, impulsivity, his suite of neurological issues and his dysfunctional background warranted a reduction of moral culpability in an assessment of the appropriate sentence. Despite this, it was submitted that the sentencing judge was “trying to say that he was giving [a reduction]”. It was ultimately conceded that although his Honour made reference to youth and the Bugmy factors (derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37), he did not do so in relation to mental health.

7. [7]

   As for Ground 1(b), it is clear that a submission was made that the applicant’s time in custody would be more onerous due to his numerous mental health issues and that no reference was made to that submission, nor any finding made in the sentencing remarks.

8. [8]

   As for Ground 2, the sentencing judge accepted that the applicant had a “significantly disadvantaged early childhood where the family home was clearly dysfunctional, resulting in the unfortunate consequence of him being removed at seven or eight years of age and being made a ward of the state”. Despite making this observation, his Honour did not then go on at any stage of the sentencing remarks to indicate whether he found that the applicant’s moral culpability was reduced or how he would be otherwise ameliorating the sentence on Bugmy principles.

9. [9]

   It is well established that the effects of childhood deprivation are to be given full weight in every sentencing decision, although, as this Court observed in Dungay v R [2020] NSWCCA 209 at [153], that does not mean that moral culpability must be reduced in every case. The difficulty in this case is that his Honour’s sentencing remarks are silent as to whether or not he reduced the applicant’s moral culpability due to the Bugmy factors. I am not satisfied that the complaint under this ground is met by the fact that his Honour mentioned these factors when making a finding of special circumstances: s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

10. [10]

    At the hearing of this appeal, it was accepted on behalf of the Crown that what his Honour said about the applicant’s childhood deprivation “could have been better expressed” but that his Honour was “trying to say” that he had made such a finding. It was further submitted that because it was “such an obvious Bugmy case his Honour no doubt more or less felt that it was to be taken as read that that’s what one would do in such a case”. As this Court has observed on numerous occasions, if there is no finding in relation to a significant submission put on behalf of an offender it is difficult to infer that a finding has in fact been made. In other words, any uncertainty demonstrates error: Lee v R [2016] NSWCCA 146 at [20].

11. [11]

    As for Ground 3, for my part this ground was more finely balanced. As Sweeney J has explained, the sentencing judge did refer to the relevant principles in relation to the sentencing of children and expressly referred to the relevant provisions of the Children (Criminal Proceedings) Act 1987 (NSW). His Honour was clearly alive to the fact that he was sentencing a 16-year-old child who had committed the subject offences when he was 14 years old. Despite this, I am ultimately satisfied, on balance, that this ground should also be upheld for the reasons provided by Sweeney J. It is not enough to simply cite the relevant principles; in this case the sentencing remarks did not include any explanation as to how those principles applied to this applicant.

12. [12]

    It is not uncommon for offenders to come before the court with a combination of factors which may reduce their moral culpability or otherwise ameliorate their sentence. In this case, three highly relevant factors were the applicant’s mental health, deprived childhood and youth. When, as in this case, the sentencing remarks do not disclose how each relevant factor has been taken into account, it is not an answer to submit that they have somehow been “rolled up” and it should be inferred that they have been taken into account.

13. [13]

    As for Ground 4, the first matter mentioned by the sentencing judge under the heading “Objective Seriousness” was that the applicant was subject to conditional liberty at the time of the offending. That factor was not mentioned again in the sentencing remarks. Despite this, the Crown did not accept that his Honour had regard to this factor in relation to the assessment of objective seriousness. In doing so, reliance was placed on the decision in Sharma v R [2017] NSWCCA 85. But at [66] of that decision, R A Hulme J observed that it was the location of the reference to conditional liberty in that case (under a heading of objective seriousness) which satisfied the court that it had been taken into account in the assessment of objective seriousness. That is precisely what happened in the present case.

14. [14]

    As for resentence, I too would arrive at a lesser sentence than that imposed by his Honour for the reasons explained by Sweeney J. This was a difficult sentencing exercise. A young person with considerable disadvantages committed a disturbing offence which severely traumatised his disabled victim. Ultimately, I am satisfied that the sentence to be imposed on resentence appropriately strikes the balance in reflecting the relevant objective and subjective features of this case.

15. [15]

    SWEENEY J: JL, the applicant, seeks leave to appeal against the aggregate sentence imposed upon him by his Honour Judge Conlon SC in the District Court at Lismore on 20 September 2023.

16. [16]

    The applicant was aged 14 years 11 months at the time of his offences on 16 March 2022 and 16 years at the time of sentence.

17. [17]

    He pleaded guilty to three offences in the Children's Court. They were:

18. [18]

    There was an offence of sexual touching without consent to be taken into account on a Form 1 when the applicant was sentenced for the aggravated sexual assault offence.

19. [19]

    The aggregate sentence imposed was 7 years, 6 months imprisonment with a non-parole period of 4 years, 6 months to date from 17 March 2022.

20. [20]

    His Honour indicated sentences for the individual offences of 4 years imprisonment for the aggravated break, enter and commit intimidation offence, 6 years imprisonment for the aggravated sexual assault offence, taking into account the offence on the Form 1, and 2 years imprisonment for the sexual touching offence. Those indicative sentences incorporated a 25% discount for the applicant's early pleas of guilty. His Honour directed that the applicant serve the whole of the non-parole period as a juvenile offender.

21. [21]

    The applicant seeks to rely on five grounds of appeal:

    1. (1)

       His Honour erred by: a) finding that the applicant’s mental conditions did not reduce his moral culpability and the significance of general deterrence, and b) failing to find that the applicant’s mental conditions meant that a custodial sentence would weigh more heavily upon him.

    2. (2)

       His Honour erred by failing to properly have regard to the applicant’s history of significant childhood deprivation and trauma in assessing his moral culpability and the significance of general deterrence.

    3. (3)

       His Honour erred in failing to properly have regard to the applicant’s youth in assessing his moral culpability and the significance of general deterrence.

    4. (4)

       His Honour erred by taking into account that the applicant was subject to conditional liberty when assessing the objective seriousness of the offences.

    5. (5)

       His Honour erred by imposing a sentence that is unreasonable or plainly unjust.

Remarks on sentence

1. [22]

   I will first recount the parts of the remarks on sentence which are not the subject of grounds of appeal.

Agreed facts of offending

1. [23]

   His Honour summarised the agreed facts for sentence. There is no issue taken with his Honour’s summary, which is as follows.

2. [24]

   The applicant was in the care of the Minister and was living in managed accommodation in a street in Casino.

3. [25]

   Because of bail conditions for other offences the applicant was kept under strict supervision, including a curfew and was not allowed out alone at night. A carer lived with the applicant full time and the residence was locked at night with security measures in place.

4. [26]

   The victim was 62 years of age and lived alone in the same street as the applicant's accommodation. She was reclusive and did not allow visitors or even family into her home. She had a heart condition and diabetes. As a result of her diabetes, she had a foot condition which required her to wear specialised footwear. She experienced difficulty walking without her boots and was aided by a walking stick and crutches.

5. [27]

   On the evening of 16 March 2022, the victim was in her home. The doors were locked and the windows closed. At about 10:30pm the applicant's carer told him to go to bed, which he did. At some later time he left his bedroom in the house without detection as the alarm system was not switched on.

6. [28]

   At around 11:30pm the victim thought she heard a knock at her front door. She turned on the veranda light and looked through the glass front door. She called out "Is anyone there? Who’s there?". There was no response and she could not see anyone. However she saw that the veranda security screen door was unlocked and opened, and the security sensor light was on. She looked again but could not see anyone, so she closed and locked the security screen door. She secured the back door with a chain and went to bed around 12:45am.

7. [29]

   Around 12:30am the applicant’s carer woke and noticed the applicant was not in the house.

8. [30]

   The applicant entered the victim's house by opening a rear window and reaching in to unchain and unlock the back door. The victim heard a noise in the kitchen. She turned on the light and with the aid of her crutches she walked to the kitchen. However, she did not see anything out of place and returned to her bedroom and apparently fell asleep.

9. [31]

   A short time later she woke and felt someone lying on her bed. She saw the applicant and said words to the effect “What the fuck, who are you? Get the fuck out of my house. What the fuck do you want?" She tried to push him away and get out of bed. The applicant knelt on the bed and pushed her back down on the bed, saying "Just do as I tell you and you won't get hurt". The victim was struggling to breathe and kept saying "What the fuck do you want?" She was struggling against the applicant in an attempt to reach for her walking stick.

10. [32]

    The applicant took the walking stick from the victim and said "Do as I tell you, and you won't get hurt. I can quite easily kill you… I can choke you. I can quite easily choke you. I can suffocate you. I can kill you." The victim was struggling to breathe. She said she needed to sit up and she could not breathe. The applicant pushed her back on the bed but she managed to sit upright on the side of the bed and put her feet on the ground. The applicant was kneeling behind the victim and said "Just do as I say otherwise I'll kill you. I can quite easily choke you." The victim was struggling to breathe and was fearful for her safety, believing that the applicant would seriously harm her. She told him she could not breathe, she thought she was having an asthma attack or a heart attack.

11. [33]

    The applicant then stood directly in front of the victim and attempted to push her back on the bed. She resisted and grabbed hold of the bedhead. She managed to reach a bedside lamp and turned it on. She saw that the applicant was not wearing any pants or underpants and his penis was semi erect. He then said words to the effect "Suck it, lick it and put it in your mouth." As he said those words he rubbed his penis across the victim's mouth. She kept her mouth closed and repeatedly responded "I can't, I can't, I cannot breathe." As she said this, the applicant pushed the tip of his penis into her mouth. She attempted to bite his penis but unsuccessfully. The tip of the applicant's penis was in the victim's mouth for a short period of time. That is the act the subject of the aggravated sexual assault offence.

12. [34]

    The applicant stopped trying to have the victim suck his penis and began masturbating. He said "Here, get this in your hand". He again threatened to kill her if she did not do as he said. The victim placed her hand on the applicant’s semi erect penis and masturbated it for a few seconds. That is the offence on the Form 1.

13. [35]

    The applicant removed the victim's nightdress, saying "We need to get this off". He slapped her breasts repeatedly with both hands and pinched her nipples. He said "Oh you’ve got really nice boobs, haven't you?" He then positioned himself between the victim's legs as she sat on the edge of the bed. He placed his penis between her breasts, he pushed her breasts together and moved his penis up and down between her breasts. After about 30 seconds he ejaculated onto her chest. That is the offence of sexual touching without consent.

14. [36]

    The applicant then turned away and walked around the bed. He put his shorts on and walked out of the bedroom towards the back of the house. As he was leaving he turned towards the victim and said "Just a word of warning, learn to keep your windows locked." He then left through the back door.

15. [37]

    About 2:00am the applicant’s carer was filling out a Missing Persons Report when the applicant walked through the front door. When asked where he had been he said he had been on the roof of the house looking at the stars.

16. [38]

    Following the offences the victim was in a state of distress. She struggled to stand and could not access her crutches, so was unable to walk. She was unable to reach the bathroom and defecated on the floor. She eventually managed to get her mobile phone and called 000 at 2:40am. She told the operator she had been sexually assaulted in her home about half an hour before and had been unable to call as she had difficulty breathing. She gave a description of her assailant.

17. [39]

    Police arrived shortly after 2:40am. When ambulance officers arrived the victim was treated, given oxygen and taken to hospital, where she was admitted and examined. She presented with acute shortness of breath and was admitted with a suspected heart attack or enlargement of the heart muscle caused by extreme emotional or physical distress, with signs of acute heart failure. She had an angiogram which identified pre-existing vessel disease. Bruising was identified on her left breast. She later discharged herself against medical advice.

18. [40]

    On the afternoon of 17 March fingerprints were located at the victim's home, which were later matched with the applicant’s. His fingerprints were on the timber door frame between the victim's bedroom and the hall and on the front driver’s side bonnet of her car, which had been parked in the carport. That night, police arrested the applicant and cautioned him. He said he had never been to in the house of the victim. He said that on the morning of the incident he was at home and having a shower around 1:30am. Sometime after that he asked the detective "Is she okay, is the lady OK?". The detective replied that she was in hospital.

19. [41]

    Police seized some items from the applicant's accommodation, including a shirt which appeared to have white dried staining on its front.

20. [42]

    On 18 March 2022 the applicant made some partial admissions to a person who appears to have been involved in his care.

21. [43]

    A later analysis of a swab taken from between the victim's breasts was positive for semen. DNA analysis of swabs taken from several locations on the victim's breasts returned a DNA profile that matched the applicant's. DNA analysis of an oral rinse from the victim identified a partial male DNA profile.

Victim Impact Statement

1. [44]

   His Honour took into account a Victim Impact Statement. His Honour stated that the victim clearly articulated the emotional and psychological damage she had suffered as a result of the offending conduct, and with her particular vulnerabilities the trauma had had a lasting impact. He noted her sense of safety had been taken away from her and she continues to struggle daily with severe anxiety attributable to the offending. His Honour accepted the extent and scope of the impact of the offences upon the victim. His Honour determined to not take that into account as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

Subjective circumstances

1. [45]

   His Honour referred to the applicant’s subjective circumstances, noting they were detailed in reports of Patrick Sheehan, forensic psychologist and Lisa Butcher, psychologist.

2. [46]

   The applicant's parents separated in his infancy. He remained for a time in the care of his mother and had no contact with his father until recent years. His earliest memories were being exposed to violence in the home from his stepfather. He was removed from the family home, aged seven or eight years of age, having been made a ward of the state. The applicant reported unstable residence throughout his subsequent development, with family placements and foster care placements all breaking down quickly.

3. [47]

   He attended at least six different primary schools. He denied any problems at school despite having been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Since his arrest in March 2022 he has undertaken education in the juvenile justice system. The applicant told Mr Sheehan that he wanted to complete his HSC equivalent and enter university. Mr Sheehan said "Given his low-average intellectual functioning his goals are likely unrealistic and in keeping with a broader pattern of impaired self-appraisal."

4. [48]

   The applicant told Mr Sheehan of a limited substance use history, smoking cannabis occasionally during periods of stress and not using other substances.

5. [49]

   His Honour noted that Mr Sheehan had said in his report:

6. [50]

   His Honour noted from a Youth Justice Report that whilst in custody JL had received 54 notices of misbehaviour and one criminal charge of damaging property, and had also been the victim of assault by other detainees. He was reported to have engaged in education.

7. [51]

   His Honour noted from the report of psychologist Lisa Butcher:

8. [52]

   Ms Butcher stated that JL meets the criteria for a diagnosis of Autism Spectrum Disorder (Level 2).

9. [53]

   His Honour referred to the Youth Justice Report which referred to a later report by psychologist Lisa Butcher (not separately tendered in the proceedings) where Ms Butcher had stated that JL has some protective factors that ameliorate his risk of reoffending, including improved relationships with his biological family, and that his strengths include accepting responsibility, being internally motivated to change, understanding risk factors along with management strategies, current empathy for the victim, remorse and guilt towards the victim, no evidence of cognitive distortion and a current healthy management of sexual urges.

10. [54]

    His Honour found that JL's expressions of remorse to Mr Sheehan were genuine.

11. [55]

    His Honour found that the reports he had referred to "would seem to indicate continuing emotional immaturity" and found "the offender remains vulnerable on account of his ‘constellation of disorders’” as described by Mr Sheehan. These were factors in his Honour making a finding of special circumstances under s 19(4)of the Children (Criminal Proceedings) Act.

Ground 1: His Honour erred by: a) finding that the applicant's mental conditions did not reduce his moral culpability and the significance of general deterrence and b) failing to find that the applicant's mental conditions meant that a custodial sentence would weigh more heavily on him

1. [56]

   In respect of Ground 1(a) counsel relied on the following statement by his Honour:

2. [57]

   Counsel for the applicant (who was also counsel in the sentence proceedings before Conlon SC ADCJ) stated that the submissions made on behalf of the applicant, to which his Honour referred in the extract above, relied on the evidence of psychologists Mr Sheehan and Ms Butcher. Counsel relied on the following opinion of Ms Butcher:

3. [58]

   Counsel relied on the following opinions from Mr Sheehan:

4. [59]

   Counsel for the applicant relied on the statement of principles in Director of Public Prosecutions (Cth) v De La Rosa [citations omitted]:

5. [60]

   Counsel also relied on DB v R [2023] NSWCCA 323 wherein Lonergan J (Simpson AJA and Dhanji J agreeing) stated:

6. [61]

   Counsel submitted that his Honour applied the wrong test or, having seemed to accept Mr Sheehan's evidence, did not seem to give any weight to it and did not deal with Mr Sheehan's reasoning about how the applicant's mental conditions contributed to his offending in a material way.

7. [62]

   The Crown submitted that Conlon SC DCJ applied the correct test to Mr Sheehan's opinion. The Crown submitted that it was open to his Honour to find that the conduct in JL's offending of breaking into the victim's home and sexually assaulting her was not explained by his conditions, but was related to his deviant sexual behaviour, which had also been referred to by Mr Sheehan. The Crown submitted that the applicant’s difficulties with social interactions with his peers were far removed from his offending.

8. [63]

   The Crown relied on the decision of Aslan v R [2014] NSWCCA 114 at [33]-[35] wherein Simpson J (as her Honour then was) said:

Consideration of Ground 1(a)

1. [64]

   There was a wealth of evidence about the numerous mental conditions experienced by JL, and the effects they had on his behaviour. His Honour focused on some of the features Mr Sheehan had referred to in JL's conduct, but narrowly. His Honour seemed to place weight on Mr Sheehan's opinion that those factors identified in his Honour’s reasons could not account entirely for JL's actions. Mr Sheehan had expressed his opinion that the features of JL's conditions likely contributed to his offending in a material way, using the language of De La Rosa. In finding that he was not persuaded that there was a causal connection between the features he focused on and the offending, I am of the view that his Honour applied the test at a higher level than was required, as explained in De La Rosa and DB.

2. [65]

   Error has been established in respect of Ground 1(a).

Ground 1(b)

1. [66]

   In support of Ground 1(b) counsel submitted that his Honour failed to address the submission made to him that the applicant's mental conditions meant that his time in custody was more onerous, relying on Mr Sheehan's opinion at paragraph 29 of his report:

2. [67]

   Counsel submitted that his Honour seemed to accept that part of Mr Sheehan's report, but only took it into account in finding special circumstances pursuant to s 19 of the Children (Criminal Proceedings) Act, whereas the applicant relied on it more broadly.

3. [68]

   His Honour referred to that paragraph of Mr Sheehan's report and then said "I am more than satisfied that the offender remains vulnerable on account of his ‘constellation of disorders’ as described by Mr Sheehan." His Honour then took into account some other matters and made a finding of special circumstances pursuant to s 19(4).

4. [69]

   The Crown submitted that his Honour took into account the applicant's mental health conditions in making the findings of special circumstances in terms of the length of the applicant's non-parole period and that it would be served in juvenile detention.

Consideration of Ground 1(b)

1. [70]

   Mr Sheehan explained that the effects of the applicant’s disorders made his experience of juvenile detention more difficult. In making a finding that the applicant should serve his non-parole period in juvenile detention, his Honour did not respond to the submission made to him. Therefore error has been established in respect of Ground (1)(b).

Ground 2: His Honour erred by failing to properly have regard to the applicant’s history of significant childhood deprivation and trauma in assessing his moral culpability and the significance of general deterrence

1. [71]

   A submission was made to his Honour that:

2. [72]

   Counsel for the applicant submitted that his Honour failed to deal with that submission and failed to make any finding in accordance with Bugmy principles. Counsel submitted that his Honour only took the applicant’s disadvantaged and dysfunctional early childhood into account in finding special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 to reduce the non-parole period from the statutory ratio, but did not take those factors into account in respect of moral culpability and general deterrence.

3. [73]

   Counsel relied on the report of Mr Sheehan, including those parts of the report which have been extracted already, and paragraphs 5 and 6 of the report wherein Mr Sheehan recorded that JL told him of early memories of being exposed to violence in the home, substance use problems in the home, domestic violence, neglect, hunger and lack of supervision, being made a ward of the State at age seven or eight and instability of care placements.

4. [74]

   The Crown submitted that his Honour referred in detail to the evidence about the applicant's early childhood and its effects, as set out by Mr Sheehan, and took account of the applicant’s disadvantaged and dysfunctional early childhood to significantly reduce his non-parole period. The Crown submitted that although his Honour did not referred to moral culpability or state that because of applying the Bugmy principles he had reduced the applicant’s head sentence it should be inferred that he did.

Consideration of Ground 2

1. [75]

   His Honour stated:

2. [76]

   His Honour then referred to s 6 of the Children (Criminal Proceedings) Act.

3. [77]

   Later in his remarks his Honour said:

4. [78]

   His Honour did not refer to moral culpability or general deterrence in connection with the applicant’s disadvantaged and dysfunctional childhood. The only reference to moral culpability in the remarks on sentence was in response to the submission about the applicant's mental conditions.

5. [79]

   Other than in respect of reducing the aggregate non-parole period, his Honour did not explain how his acceptance of the applicant’s disadvantaged early childhood, dysfunctional home and being made a ward of the state was taken into account in the exercise of his sentencing discretion.

6. [80]

   In failing to deal with the submission made to him on behalf of the applicant, when there was an abundance of evidence which his Honour accepted, his Honour erred. Ground 2 is made out.

Ground 3: His Honour erred in failing to properly have regard to the applicant's youth in assessing his moral culpability and the significance of general deterrence

1. [81]

   Counsel for the applicant submitted that his Honour did not address a submission made to him that the applicant’s:

2. [82]

   Counsel submitted that although his Honour referred to s 6, KT v R [2008] NSWCCA 51 and TM v R [2023] NSWCCA 185, his Honour did not make any findings as to the application of the principles to the applicant and his offending. Counsel submitted that his Honour only referred to the applicant’s "continuing emotional immaturity" when considering whether to make a finding of special circumstances for the purposes of s 19 of the Children (Criminal Proceedings) Act.

3. [83]

   Counsel relied on the statement of Yehia J in TM at [65] that:

4. [84]

   Submissions in respect of Ground 3 focused on a passage in his Honour's remarks on sentence in which his Honour said:

5. [85]

   Counsel for the applicant submitted that in the last sentence of that passage his Honour stated the law and did not make a finding about the applicant's youth.

6. [86]

   The Crown submitted that his Honour referred to the relevant principles and authorities and that his Honour was well aware of the applicant's youth.

Consideration of Ground 3

1. [87]

   From a reading of his Honour's remarks on sentence it is not apparent that his Honour responded to the submission made about the applicant's youth and its impact on his moral culpability. His Honour took into account the applicant's "continuing emotional immaturity” for the purposes of his finding for s 19 of the Children (Criminal Proceedings) Act. He stated in his recitation of the agreed facts that the applicant was 14 years 11 months of age at the date of the offending. The submission made to his Honour about the applicant was broader than that his immaturity should be taken into account as to where he served his non-parole period. His Honour did not make any finding in response to the submission made. I do not read the highlighted sentence in the passage above as referring to the offender, but as stating the law. Therefore, it appears that his Honour did not take the submission into account. Error is established in respect of Ground 3.

Ground 4: His Honour erred by taking into account that the applicant was subject to conditional liberty when assessing the objective seriousness of the offences

1. [88]

   His Honour assessed the aggravated break and enter offence as slightly below mid range, taking into account that the victim woke to find the applicant lying on her bed, the applicant's physical conduct and threats to the victim, the personal circumstances of the victim, and that the offending occurred in her home.

2. [89]

   His Honour assessed the sexual assault offence as “just below mid range”, taking into account that the offending was opportunistic, persistent, that the victim indicated her distress at not being able to breathe, that the applicant pushed the tip of his penis into the victim's mouth for a short period of time, and the actual bodily harm of a bruise to the victim's breast.

3. [90]

   His Honour assessed the sexual touching without consent, in which the applicant placed his penis between the victim's breasts and moved it for about 30 seconds before he ejaculated on her chest as serious and degrading, "within about the mid range".

4. [91]

   The impugned part of his Honour’s remarks on sentence in relation to Ground 4 was as follows:

5. [92]

   Counsel for the applicant accepted that the applicant being on conditional liberty in the form of bail at the time of the offending was relevant to sentencing the applicant, but that it was an error to take that factor into account in the assessment of objective seriousness. Counsel submitted that his Honour assessed the objective seriousness of each offence as greater than he otherwise would have by improperly taking into account that factor. He relied on the statement of Simpson AJA (Button and Weinstein JJ agreeing) in Bazzi v R [2024] NSWCCA 35 at [22]:

6. [93]

   The Crown submitted that the impugned remarks by his Honour were introductory only and no finding was made that the applicant being on conditional liberty was a factor in assessing the objective seriousness of the offences. However, the Crown accepted that if the Court found his Honour did so then that would be an error.

Consideration of Ground 4

1. [94]

   Considering the structure of the impugned paragraph, the placement under the heading "objective seriousness" and that after that paragraph his Honour went on to assess the objective seriousness of each offence in turn, it is difficult to see how his Honour did not take that factor into account as relevant to the objective seriousness of the offences.

2. [95]

   Error has been established in respect of Ground 4.

3. [96]

   Errors having been established, the court must resentence the applicant: Kentwell v The Queen (2013) 252 CLR 601; [2014] HCA 37. I will take the submissions made in respect of Ground 5 into account in resentencing the applicant.

Resentencing the applicant

1. [97]

   In resentencing the applicant I take into account the principles set out in section 6 of Children (Criminal Proceedings) Act, particularly, as relevant to this sentencing exercise:

2. [98]

   I also take into account the principles stated in KT v R by McClellan CJ at CL, which have been repeated and applied in subsequent decisions of this Court (citations omitted):

3. [99]

   In resentencing the applicant I have taken into account the maximum penalties for each offence, the agreed facts and the effect on the victim as disclosed in her Victim Impact Statement. I do not treat the latter as an aggravating factor.

4. [100]

   In assessing the objective seriousness of the offence of breaking and entering and intimidating the victim I take into account the means used to break in, the time of night that it occurred, that the victim woke to find the applicant lying on her bed, the threats which constituted the intimidation and the distress experienced by the victim. Having regard to the range of offending which can be encompassed by this offence provision I assess this offence as below the mid range of seriousness.

5. [101]

   In assessing the sexual assault offence I take into account that the offence appears to have been spontaneous rather than planned, that it occurred when the victim had already expressed her distress at the applicant's presence in her home, that the offence occurred in her home, the nature and duration of the act, that is that the tip of the applicant's penis penetrated the victim's mouth for a short time, and the actual bodily harm of a bruise on her breast. I assess that offence as below the mid range of seriousness.

6. [102]

   In assessing the objective seriousness of the sexual touching offence the nature and duration of the act make this is serious form of sexual touching. I assess it as in the mid range of seriousness.

7. [103]

   I take into account the applicant's young age at the time of the offences, his diagnosed mental conditions and his dysfunctional and disadvantaged childhood, the effects of which have continued into his adolescence. The combination of the applicant's young age, his mental conditions and his disadvantaged upbringing significantly reduces his moral culpability for the offending and the weight to be given to general deterrence.

8. [104]

   I take into account that the applicant was subject to conditional liberty in the form of bail when he committed the offences.

9. [105]

   It is a difficult sentencing exercise to balance the offending conduct, its effect on the victim, and the applicant's strong subjective circumstances.

10. [106]

    The applicant relied on two affidavits on resentence, from Kelly McGillivray-Brown, a psychologist at the Acmena Youth Justice Centre and an affidavit of his solicitor which annexed a psychological report from Ms McGillivray-Brown, dated December 2023. The affidavit of Ms McGillivray-Brown, dated 21 October 2024, updated her previous report. She reported that since JL was transferred back to Acmena in August 2023, he had engaged in approximately 56 counselling sessions with her, that he has shown a willingness to engage regularly with the centre psychologist to address the offence, acknowledging the offence as wrong and showing a willingness to change his offending behaviour and develop his social skills, that he engages in education and is compliant with medication.

11. [107]

    The Crown relied on an affidavit which annexed misbehaviour reports in relation to the applicant in detention since he was sentenced in September 2023. Some involved aggressive behaviour or language to staff, some involved negative behaviours with other detention centre inmates, one involved "sneakily passing biscuits attempting to share food” with another young person.

12. [108]

    In her report of December 2023 Ms McGillivray-Brown reported that the applicant described struggling socially at school, with reports of him displaying challenging behaviours and experiencing bullying, but that he generally behaves respectfully and engages in his studies. She said the applicant:

13. [109]

    Those reports reflect the applicant's youth, immaturity, and aspects of his diagnosed conditions. They and Mr Sheehan’s report make clear that the applicant’s rehabilitation will require a deal of time, treatment, and focus on his risk factors for reoffending.

14. [110]

    I note that he now has the support of his father who was present in court during the hearing of the appeal.

15. [111]

    As his Honour did, I apply discounts of 25% for the pleas of guilty to the sentences I will indicate for the individual offences. I also take into account the applicant's expressions of remorse to Mr Sheehan as genuine.

16. [112]

    Because of the applicant's need for intense supervision and treatment to promote his rehabilitation, I find special circumstances to reduce the aggregate non-parole period of the aggregate sentence I will impose below the statutory ratio. The aggregate sentence will involve a modest notional accumulation of the individual sentences to reflect that the offences occurred close in time as part of the one course of conduct. The total sentence reflects the total criminality and the applicant’s personal circumstances.

17. [113]

    For the same reasons his Honour found, that the applicant is vulnerable on account of his mental conditions, that the only available educational or therapeutic programs suitable to his needs are available in detention centres, and that if the applicant were committed to a correctional centre there would be an unacceptable risk of him suffering physical or psychological harm, I find special circumstances justifying detention of the applicant as a juvenile offender after he turns 18, pursuant to s 19(3) of the Children (Criminal Proceedings) Act, and direct that the whole term of the sentence is to be served as a juvenile offender.

18. [114]

    I indicate the following sentences which would have been imposed for the individual offences if the Court was not proceeding by way of an aggregate sentence:

19. [115]

    The aggregate sentence is 6 years imprisonment. The non-parole period is 3 years 6 months imprisonment. I direct that the whole of the sentence is to be served as a juvenile offender.

20. [116]

    Therefore I would propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the sentence imposed by Conlon SC ADCJ on 20 September 2023.

    4. (4)

       In lieu thereof sentence the applicant to an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years 6 months imprisonment to date from 17 March 2022. The non-parole will expire on 16 September 2025.

    5. (5)

       Direct, pursuant to s 19(1) and (3) of the Children (Criminal Proceedings Act 1987 (NSW), that the applicant serve the whole of the sentence as a juvenile offender.