The Queen v ND

• Jurisdiction: Northern Territory
• Judge: Barr J
• Judgment Date: 04 April 2014
• Neutral Citation: [2014] NTSC 11
• Date: 04 April 2014
• Court: Supreme Court
• Docket Number: FILE NO: 21120087

[2014] NTSC 11

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Barr J

FILE NO: 21120087

Between:

The Queen

Applicant

and

ND

Respondent

REPRESENTATION:

Counsel:

Applicant: P Usher

Respondent: D Woodroffe

Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 ; Leach v The Queen (2005) 16 NTLR 117; R v Leach (2004) 14 NTLR 44; R v Olbrich (1999–2000) 199 CLR 279; Woods v The Queen [2012] NTCCA 8, referred to

Child Protection (Offender Reporting and Registration) Act (NT) s 11(1)(a), s 12(1)(a), s 13(1), s 13(2), s 13(3), s 13(4), s 14(5), s 14(6), s 16(1), s 37(2)(a), s38(6), s 72(1)

Criminal Code (NT) s 127

CRIMINAL LAW — Gross indecency involving child under 16 years — child under the age of 10 years — youth offender — required to comply with reporting obligations under s 13(2) of Child Protection (Offender Reporting and Registration) Act — underwent psychological treatment — risk of similar re-offending remained significant — satisfied that offender posed a risk to the sexual safety of children in any community where he might reside, and children generally

CRIMINAL LAW — Standard of proof — inappropriate to attach a standard of satisfaction to the decision that a person poses a risk of the kind referred to in s 13(3) of Child Protection (Offender Reporting and Registration) Act

CRIMINAL LAW — Standard of proof — facts upon which court's satisfaction for the purposes of a decision under s 13(3) of Child Protection (Offender Reporting and Registration) Act depends — order is protective and preventative — civil standard, balance of probabilities apply

REASONS FOR DECISION

(Delivered 4 April 2014)

1 On 19 March 2013, I made an order that ND, a youth offender, comply with reporting obligations under s 13(2) Child Protection (Offender Reporting and Registration) Act (‘the Act’). These are my reasons.

2 On 26 June 2011, while residing with his parents and family members in a small community near Ngukurr, ND (who was then almost 14 years old) committed an act of gross indecency upon a three-year-old female child. He took the child into hills near the community, removed his clothes and the child's clothes, and then rubbed his erect penis on the outside of the child's vagina. He was caught in the act by the child's mother and ran away.

3 After being charged, ND pleaded guilty in the Supreme Court to committing an act of gross indecency upon the child, contrary to s 127 of the Criminal Code, with the admitted circumstance of aggravation that the child was under the age of 10 years.

4 On 5 July 2012, ND was convicted and sentenced to detention for two years and eight months. The sentence was backdated to 17 August 2011 to reflect time spent by him in detention on remand. A non-parole period of 16 months was fixed, to run from 17 August 2011. At the time of sentencing, ND had just turned 15 years old. In an interview with the author of the Pre-Sentence Report provided to the Court, he frankly admitted ‘raping the baby’, to use his words. When questioned as to why, he stated that he was a virgin and that he wanted to have sex. He also said that he had consumed four cans of VB prior to committing the offence.

5 ND's sentencing was complicated by a number of difficult issues. At the age of 9 or 10 he had suffered a head injury when he fell from school playground equipment. He was diagnosed with a seizure disorder after suffering a seizure in 2008, and was then prescribed anti-epileptic medication. His medication generally controlled his active seizures.

6 However, from the age of 11 he started to have behavioural difficulties. He smoked cigarettes and consumed alcohol and cannabis. He also inhaled volatile substances such as petrol and deodorants. He started to engage in auto-asphyxiation: he would choke himself with his hands to the stage where he would lose consciousness. His auto-asphyxiation continued and escalated over time. While on remand in detention at the Don Dale Centre, some 15 or 16 separate incidents of self-asphyxiation were reported in the period from 21 August 2011 up to 23 June 2012. He received regular psychological treatment for his self-asphyxiating behaviour during that time.

7 ND was assessed by a neuropsychologist in September 2011. He was found to be of average intelligence, but he suffered gross deficits in auditory attention, that is, in his ability to listen to and focus on what was said to him and to sustain his attention for an age-appropriate length of time. A mild hearing loss was a possible contributing factor. ND also had gross deficits in verbal memory, that is, he would rapidly forget information given to him verbally. The identified deficits rendered it difficult for him to understand and retain complex instructions...