An Illawarra man who sexually molested his two young foster sister when he was 14 years old has avoided having a criminal conviction recorded against his name.
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The man, now aged 21 but who cannot be identified because he was a child at the time, appeared in Wollongong District Court for sentencing on Friday after being found guilty of three counts of indecent assault of a child under 16 years following a jury trial earlier this year. He was acquitted of a further 10 charges by the same jury.
The man has always denied committing the offences.
On Friday, Judge Andrew Haesler noted the offences occurred in 2012 however the man wasn't arrested until 2019.
He said had the man been arrested and tried in 2012, he would have had the case heard in the NSW Children's Court, where the law stipulates that anyone under the age of 16 who commits an offence dealt with summarily (meaning it stays in Children's Court and is not considered serious enough to be dealt with in higher courts) is not to have a conviction recorded against them.
The man's barrister, Scott Fraser, called on Judge Haesler to apply the same principal in sentencing his client, noting it was not the man's fault there had been considerable delay in the reporting of the offences and him subsequently being charged.
Judge Haesler agreed to spare the man a conviction, noting the offences appeared to have been "one-off", isolated acts and there was no evidence before the court he had committed any further offences against the sisters or any other person since then.
"There is no suggestion he currently poses a risk to the safety of children," he said.
He sentenced the man to an 18-month conditional release order without conviction.
In recounting the facts of the case, Judge Haesler said the sisters, aged 14 and 10 at the time, began living with the then-14-year-old and his family under a foster care arrangement in late 2011.
The court heard sometime between May and December in 2012 the boy called the younger girl into his room to "play games".
The pair watched television for a short time before the boy told her to sit on the floor with him so they could "play with some of my toys".
The boy then told the girl to lay down before laying on top of her and rubbing himself against her body.
The girl's older sister came into the room and said "what are you doing with my sister?"
The boy replied "nothing", then asked the older girl to sit with them.
He positioned himself between the two girls then reached out and rubbed their genitals over their clothing.
The girls did not disclose the incident to anyone at the time. The court heard they were moved to another family in January 2013 but only made a complaint to their new foster mother three years later in mid-2016.
Judge Haesler also made an order that the man not be placed on the child sex offender registry.
