The recent NSW Court of Criminal Appeal decision of R v AB  NSWCCA 3 has opened up the question of whether it can ever be appropriate to make a No Conviction Order when sentencing an offender to multiple counts of child sexual assault. The short answer (according to the judgement) is yes but only in the “most exceptional and rare circumstances”.
Facts on sentence
This matter was initially heard before her Honour Judge Wass SC in the District Court on 15 February 2021. The offender plead guilty to nine offences on the indictment and a further three on a Form 1 (to be taken account of but not strictly sentenced for). The offences involved the performing and recording of sexual acts on a 14-year-old boy. The charges were:
5 counts of Sexual intercourse with a person above 14 and under 16, contrary to s 66C(3);
3 counts of using a child of or above 14 for production of child abuse material, contrary to s 91G(2)(a); and
1 count of commit act of indecency with a child under 16 knowing the act of indecency was being filmed for the purpose of the production of child abuse material, contrary to s 61O(2A).
The offender met the complainant through Grindr, where his account suggested he was over 18 years of age. They met up on two different occasions and engaged in numerous sexual acts. Upon meeting up, the offender believed the complainant was 15 years of age and was aware this was against the law.
The offender was sentenced to a 2-year conditional release order, whereby no conviction would be recorded so long as he abided by the terms of the order.
Subjective case of the offender
The offender had a powerful subjective case, including extensive violent childhood sexual abuse from age 5 onwards at the hands of his mother and others. He was detained against his will by his mother and her new boyfriend and was sold to men for sexual services. He was physically tortured and abused and denied adequate food and water. The sentencing judge found that this early exposure to violence and sexualisation was “instrumental in the way he has emotionally developed”.
The offender had already been in custody for 8 ½ months prior to being granted bail in March 2022. The time in custody was particularly confronting as it emulated the abuse he had experienced as a child. He was 25 years of age at the time of the offending and had no criminal record.
He has also recently been re-traumatised and emotionally distressed from having to give evidence in May 2018 in one of the trials regarding the offending against him. The sentencing judge also found this indirectly casually linked to his offending. He had begun using MDMA and cocaine, and his demeanour changed into a hypomanic state from the stress of the trial.
The offender also suffered from a range of mental health conditions including, depression, anxiety, PTSD, obsessive compulsive disorder, borderline personality disorder, bi-polar disorder and he has an eating disorder.
The only question on appeal was whether the sentence was manifestly inadequate. The standard for this is whether the outcome is so unreasonable or plainly unjust that there has been a misapplication of a principle or a failure to properly exercise sentencing discretions, thereby warranting intervention.
The Crown Prosecutor’s position was that a conviction needed to be recorded due to the objective seriousness of the offending and to properly reflect the sentencing considerations of general deterrence, denunciation and recognition of harm.
The Crown did not challenge the extenuating circumstances, or that no further period of imprisonment should be imposed, nor did the Crown cavil with the judge’s finding that there was “little need for further punishment”. Rather, it was submitted that due to the objective seriousness, a conviction ought to be recorded. When imposing the sentence, her Honour focused on the offenders’ conduct and the circumstances of his offending, as well as her assessment of the objective seriousness of that offending.
The bench of Meagher JA, Wright J, and Fagan J found that this case was the “most exceptional and rare circumstances”. They accepted that it was open to the sentencing judge to conclude that general deterrence and denunciation had little role in this particular sentencing exercise. Further, it was not suggested that the sentencing judge overlooked the recognition of harm to the victim when determining an appropriate sentence, rather she determined that the “non-recording of a conviction… far outweighs a requirement of punishment, denunciation, or deterrence”. Her Honour concluded that a bond with strict conditions would work as efficiently as a conviction in protecting the community and preventing re-offending.
The imposition of a non-conviction allows for consideration of extenuating circumstances and when balancing all relevant factors, the bench determined that on the evidence, it was open to her Honour to impose a penalty under s 10 (no conviction order).
The biggest takeaway from this case is the Court of Criminal Appeal’s view that according to, it can be appropriate not to record a conviction in cases involving child sexual offending. However, the circumstances that allow this conclusion to be reached without resulting in error are very limited. There will always be a number of factors to balance at sentence, not only the subjective case of the offender. The sentence imposed must take a holistic approach and reflect the criminality in its entirety.
Rebecca Krielser, Lawyer