cried out for help to the adults in his life and instead asked him was that moved to thirty years and i want to start this argument by talking here a little bit about who austin is and how he got where he is now and all of the information that i'm about to give you as information that was considered by the trial court in the sentencing hearing austin energy guilty bernie and the only issues that we have raised here today  when she remarried austin reports that the abuse that she suffered the hands of her nd husband was so severe that she quit abusing children us ten had some learning disabilities and  subsequently diagnosed with age he had some problems at school he had difficulty making friends his family home life was not stable and as a result his family moved nine times during those st fifteen years of his life he change schools frequently he was not able to keep presents and when austin talks about his education he refers to himself as an outcast nobody liked him he didn't know why but his only friend real friend was your grandmother despite those difficulties austin was in special ed classes and was on track to graduate with  fs has been involved in his family since he can remember boston has a history of self mutilation cutting suicides has been diagnosed with major depress was placed on probation and began counseling the record shows that during a counseling session austin disclose that he was continuing to engage in sex offenses and made no effort to hide what he had done and been involved in austin was criminally charged as a result of th an apartment sentencing austin acknowledged it could not tell what the level of harm would be to the victim because it had no evidence no stretch the trial speculated that crimes of this nature are such that osbourne is required all defendants are required to be sentenced based on a proportion a sentence that is proportionate to their offense and that is intended to restore the offender to shocking to the moral conscience of the community usted is going to be in his forty's when he's released from prison he will have spent more than twice as life locked up for a crime that he committed when he was fifteen years  future behavior research indicates that deterrence it's not effective in a juvenile population asta was sentenced as an adult but he was actually fifteen years old deterrence is not a factor  never in sentencing however even in sentencing austin considering the harms of the public the trial court is still required to consider the fact that he is able to very specific austin will continue to mature in the next six to nine years i'm sorry of scopic out so but he did not court there was some evidence about obviously the maybe hundreds of other six year old girl had put their hands down each others may have fallen on the playground s now that's certainly not behavior that we want to condone in our children but it's not that he could have been charged with felony for that same offense and defendant appeal this or sent since he was not charged with nor proven guilty of committing a statements the state never worked up a case for that they tried to do and simply couldn't we don't know because the record doesn't tell us what the record does tell us you know is that of the for hi i'm sorry if i've named victims that often admit it to you one of those was a person who claims nothing ever happened to her and one of those was a child who was six years old when i asked him was also six age she is a candidate for rehabilitation also noted however in that same sex offender evaluation is quote class be rated as a high risk to re offend in a sexually aggressive manner this evaluator does not believe that austin can be safely maintained in a community that your honour's is probably an understatement so let's look at the other side of austin so he was in this case charged with implied guilty to aggravated criminal sexual assault as an individual under the age of seventeen who committed an act of sexual penetration with the victim was between the ages of nine and thirteen with anal penetration the factual basis of stablish that he penned the victim down by also alleged or indicated that he had engaged in another once or twice performing oral sex or having some girl perform oral sex on him by force to the police indicated that with regard to the  sixty times including regular sexual intercourse thirty times now defendant did at the sentencing hearing disavow the frequency of these a bounce but notably that the defendant did not disavow the fact that they occurred comes from from austin himself the defendant himself but the fact of the matter is that that is the best evidence to define as acknowledgment to everyone including the court about what he did he never never denied that he did these things or never deny doing them multiple times the court considered sex offender evaluation in this case and that was one of the the complaints of counsel below was the use of the sex offender evaluations  but the court credited i think reasonably so that it was decided to give the defendant a multitude of tests because of his age and complications with regards to that  the s u r twenty all those are in the record all of those are laid out in detail about what the results of those tests were and all of them indicate with you know contradiction to each other that he was a severe risk is potentially dangerous and has a high risk to found his mother testified interesting enough and you know it's hard how we see none of us are here or there hearing her testify as plainly obvious that she knew what he was like as far as being a manipulator she indicated chord that he would give the veneer the impression that counseling he received wasn't doing much good because he was so young at the time but now i guess a fresh year or two off of that he feels that counseling is going to be a lot better for you also just father sexual abuse  and i don't obviously i don't don't counter that nor its significance but that is something that the court explicitly acknowledged at the time of son saying that it's ok to consideration as well here the court said it didn't see th counseling is going to do any good for the defendant he threatens serious harm or we'll talk about that in a moment but among other factors a court has a prior history of delinquency the need for deterrence and the risk that he poses the community speaking consider and the context of plain error because has otherwise been forfeited this is that case where the evidence is close we're talking about repeated assaults no matter how you look at it whether he told the sex evaluator the police or harm in order for this to be a consideration for the court as a factor to be considered but other courts as the state has cited in its brief have reached a conclusion that that's right of harm is certainly apparent in this type of the funds looking at the supreme court's decision of people versus cody granted this language comes within a context of constitutional issues the court noting and quoting other cases says that quote commentators are recognizing aside from any physical injury the child may suffer in a sexual assault children who are sexually assaulted are subject to chronic psychological problems that may be even more kurdish a sexual assault has been described as short of homicide the ultimate violation of s because of their emotional immaturity children are exceptionally vulnerable to the effects of sexual assault and so i think that what we have here is kind of two things going at number one this is not instance of an isolated threat that the courtroom arrive at a conclusion that his conduct threatened serious harm in a sense of psychological harm a type of harm at the supreme court as overtly recognized as a legitimate type of harm debt is unique to and particularly occurred defendant raises the proportion of penalties argument where this court has to consider the thirty year sentence as being cruel degrading or so wholly to proportionate to the offense that it would shock the moral conscience of the community obviously the seriousness of the offense and i think that those things that i just mentioned excuse me are critically political in the case here particularly given you know the degree of the the assaults  the frequency of them and the fact that he did so because he felt that it gave him power and of course was manifest in the fact that he engaged in these acts on family members youthful family members over whom one can reasonably conclude he held some sort to useful so some shit would be the rehabilitative aspect of it again the court can look at the fact that here this is an individual was a high risk area found he carries you know uniquely high risk among i think this court could find under under sex offenders generally and the fact that he does so and did so that he felt that his own power in doing so it's difficult to subscribe to the notion that this type of dangerousness is just simply going to recede after eight or nine years and again points of that statement by which i started this argument which was the guy would just note that he was a high risk to if not in a sexually aggressive manner and cannot be safely  to court's decision again as detailed here at the early outset of this argument there is plenty of factors for this court to take into consideration with regards to  defendant argues that the courts and take into consideration certain mitigating factors a court is not required to articulate all factors both aggravation and mitigation this is not a case where the court did not take a factor into consideration there is no explicit evidence of that so the presumption flows in favor of the court's having taken into consideration all proper factors that have to be  considered notably here the court i was asked to get acknowledge on a record it took into consideration the application of of the statutory juvenile factors i've argued that i don't think that they were directly a political in this case just based on the language the court did take into consideration the defendant's usefulness impetuosity and other factors that are unique to juveniles that have been recognized in other cases here i've gone through or tried to go through some of those juvenile factors as they apply here he may have been useful but there is nothing impetuous about the defendant's actions he clearly had a plan he was very intent on targeting certain individuals who are family members of a certain age in a manner in which he feels that he could exercise power over them and dominion so that he couldn't gage any sexual acts while it's true that his father was a negative influence and factor in his life and certainly that's not an uncommon characteristic of sex offenders if they come from households where they too may have been victimized by that it was by all appearances that he was presently in a home and he acknowledges much that he  got along well as parents as well as mother and stepfather i guess but tension for rehabilitation is one of those factors which we've already discussed here a little bit obviously counseling was not doing any good for me have years of it whether this court feels that it was going to do  any good or not because of his age he did re offend almost immediately after after those concluded prior juvenile history the circumstances of the offense and his degree of participation i think that those are all sort of self evident based upon what the court considered below so given the fact that the court did take into consideration everything including the defendant's usefulness and considerations that are unique to defendant community and also says that within the next six to nine years as he develops as much as the impulse control grows stronger that his risk level will go down it will be reduced he is not a person who had to be a maximum sentence in order for the community and the snakes the sex offender evaluation there's there are some issues with that report in the state to point out none of these that were given tossed and are valid for juveniles not a single one of these tests they gave multiple tests in an effort to give a broad position on what these test results would be but the simple reality is the sex offender report acknowledges not a single one of these tats is valid for for juveniles for people under the age of eighteen which os didn't last so some of those test results are incredibly negative toward ostend but not all of them and our brief outlines some of these test results were actually positive for ostend some of them said that he does have the ability to change that he wants to change all of those things factor into his ability his future ability to change so if we're going to accept the sex offender evaluation we have to exceed or accept at all or reject at all if it's completely unfair to say we're going to accept the parts  sentencing hearing she also acknowledged during that sentencing hearing that she had not been aware that her son was a victim of sexual assault herself she did know that her husband was sexually abusing her  she acknowledged during her testimony that that could have had an impact on austin and his behavior and miss thompson i don't mean to stop you know i specially mid argument but with little time left i'd like for you to discuss this the trial court placed significant weight on that factor and for that reason i think that the the trial court erred in doing so the trial court in its final sentencing considered the harm and the the harm to the victims and the protection of the public i think were the two deciding factors that the trial court used in reaching that  don't think that i would like to point out mr daley has argued for the state that austin has been in counseling and it has failed and he's been in counseling and it has failed and he's been in counseling and it has failed we repeatedly order people into counseling for treatment when the court knows that treatment is the only thing that is going to work that is going to solve the problem people are ordered to repeatedly the wife and daughters are ordered repeatedly go through dui alcohol treatment it's domestic batterers are ordered repeatedly into abuse counseling we recognize that human behavior is such that it sometimes takes more than once to change it austin was fifteen years old with all