Director of Public Prosecutions v Clouns (a pseudonym)
[2025] ACTSC 288
•10 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Clouns (a pseudonym) |
Citation: | [2025] ACTSC 288 |
Hearing Date: | 18 June 2025 |
Decision Date: | 10 July 2025 |
Before: | Christensen AJ |
Decision: | See [98] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated use of child to produce child abuse material – family violence – rolled up count – grave breach of trust and exploitation of daughter – offender subject to abuse as a child – material role in offending – generational impacts of childhood sexual abuse –genuine remorse for offending – assistance to authorities by admissions – reduction in penalty – insight into causes of offending – solid prospects of rehabilitation – low risk of reoffending – fulltime imprisonment necessary to fulfill sentencing purposes of punishment, denunciation, accountability and deterrence – early partial suspension to reflect mitigating factors |
Legislation Cited: | Crimes Act 1900 (ACT) s 64 |
Cases Cited: | Bugmy v The Queen [1990] HCA 18; 169 CLR 525 |
Parties: | Director of Public Prosecutions Sean Clouns (a pseudonym) ( Offender) |
Representation: | Counsel T Whybrow ( DPP) M Hassall; E Wallis ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 39 of 2025 |
CHRISTENSEN AJ:
Introduction
1․The offender Sean Clouns (a pseudonym) is to be sentenced for a child sexual abuse offence. The offender is identified by way of a pseudonym to protect the identity of the victim of his offending, his 11 year old biological daughter.
2․This sentencing exercise involves tragedy in many aspects – for the harm caused to the individual victim, the harm caused to the offender’s immediate and extended family, and the harm caused to the community. Additionally, in the past, sexual abuse harm was inflicted on the offender himself with the impacts of this having had a role in the offending that occurred.
3․Further, what may be viewed as a tragedy arises because the only appropriate response to the seriousness of the offending is a sentence involving a period of fulltime imprisonment. I conclude this despite the offender having been found suitable for an intensive correction order (ICO), and with it submitted on his behalf that such an order, or a fully suspended term, is appropriate. The custodial term to be imposed will have impacts that are likely to be not only negative for the offender, but for the family of the offender. Nonetheless, it is the only appropriate outcome from this sentencing exercise in order to fulfill all sentencing purposes.
4․I describe all of these outcomes as a tragedy as there is little that the Court can ultimately do to repair the destruction of the family unit that has occurred, and there is nothing the Court can do to take back what has occurred. The following sentencing exercise can only attempt to reflect the fulfilment of sentencing purposes that the law provides are to be considered and applied.
The offending
5․The offender is to be sentenced for an offence of aggravated use of a child to produce child abuse material (CAN 2024/12737). The offence is contrary to s 64(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 19 years imprisonment, 1900 penalty units, or both.
6․There is an increased maximum penalty by virtue of the offending being aggravated as it involves family violence. The significance of the provided maximum penalty emphasises the seriousness with which the legislature, and the community, regard this type of offending. The family violence aspect enlivens the considerations in s 34B of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
7․The charge particularises that the offending occurred between 1 March 2024 and 30 April 2024, that is, in a period of two months, with the conduct being ‘rolled up’. The charge particularises that the production of the child exploitation material (CEM) involved one video and four images.
8․As already observed, the victim was the biological daughter of the offender. She was aged 11 years and 8 to 9 months at the time of the offending.
9․On 21 December 2024 the offender and his family, including the victim, drove from their home in the ACT to Victoria to visit the victim’s maternal grandparents. The offender had plans to return to the ACT in early January 2025.
10․On 28 December 2024, the victim was at her grandfather’s residence in Victoria. She had been in the shower, before entering her bedroom and getting dressed. She located a mobile phone under the bed and observed it to be recording. The victim stopped the recording and viewed what had been captured. The phone had been pointed directly at the shower. It is appropriate to emphasise that this video is not the subject of the charged conduct, being conduct that occurred in Victoria.
11․The victim looked through the phone and identified photographs of herself, commencing from March 2024, which showed her sleeping, the offender having pulled down her shirt and her pants.
12․The victim identified the phone as one that belonged to her father. It was a personal phone obtained from the e-waste recycling program run by an ACT private high school where the offender was employed.
13․The victim recalls that the following images were captured in her bed in Canberra:
(a)A photograph where her shirt had been unbuttoned;
(b)A photograph where her pants had been pulled down, exposing her buttocks while she was lying on her stomach;
(c)A photograph taken of her while she was asleep in her bed, with the offender’s penis on her arm; and
(d)A photograph taken of her while she was asleep in her bed, with the offender’s penis near her face.
14․The victim observed the first image, where her shirt was unbuttoned, to be dated in March 2024. She was wearing the same pyjamas in the second image, where her pants had been pulled down. The third and fourth images were taken at a time where she was wearing short sleeve pyjamas.
15․The victim recalls an occasion where she had woken to her father in her bedroom. He told her to go back to sleep, and she had observed a phone in his hand. She asked her father what he was doing, and he responded that he did not know. The victim had all the sheets on her at the time she woke up.
16․The victim observed four other videos of herself in the shower. These were taken during the period of time that she had been at her grandparent’s house in Victoria, from 21 December 2024. These videos were not taken on the same day. Again, these videos are not the subject of any charged conduct, having been taken in Victoria.
17․The victim went out to the loungeroom where her father and her mother were. The victim told her mother, in the presence of her father, that he had been recording her. The offender stated that it must have been an accident, however the victim confronted him about the fact that she was the only person captured in the material she had located on the phone. Her father stated that he must have been sleepwalking due to the new medication that he had been on. The victim hit her father in the face during this confrontation.
18․The offender took the phone from the victim. The victim’s mother attempted to take the phone, however, the offender walked away. The offender erased the contents of the phone. After the confrontation, the offender drove from Victoria to Canberra.
19․On 29 December 2024 the victim’s mother attended at a police station in Victoria to report the offending. The matter was referred to the ACT Police Sexual Assault and Child Abuse Team.
20․The offender arrived at his residence at around 4:11pm on 29 December 2024. He was placed under arrest and cautioned. He was interviewed by police, and he made admissions to the following conduct:
(a)In March 2024, he had gone to the victim’s bedroom while she was sleeping. He had unbuttoned some loose buttons on her pyjama top and photographed her bare breasts.
(b)He had also pulled down her pyjama pants and underwear and photographed her exposed buttocks.
(c)He had taken a photograph where he had placed his penis against the victim’s lips. He denied that he had obtained any sexual gratification from this image, and said that his penis was not erect.
(d)He had additionally taken a video of the victim while she was in the main bedroom ensuite shower at their residence and he had recorded her while she was in the shower, by placing a phone, the same phone that was later located by the victim, under his bed, aiming it towards the shower.
21․During the interview, the offender stated the basis for the offending was curiosity as to how the victim’s body had grown since she was a baby and as she matured into a young woman. The offender stated that he had viewed the images and the video on one occasion after he had taken them.
Assessment of the offending
22․This initial explanation by the offender for the offending conduct is to be contrasted with an element of the offence to which he has pleaded guilty, namely that his daughter was used to produce ‘child exploitation material’, CEM being material that is “substantially for the sexual arousal or sexual gratification of someone other than the child”. The offender has accepted his conduct involved this aspect by his plea of guilty. Further, as will become apparent, a forensic psychologist’s opinion concludes that the offender’s motivation for the offending was beyond “curiosity”. The offender’s criminality, and his moral culpability, is well beyond conduct arising from curiosity.
23․Additionally, he used a work phone, inferentially, not a phone that might typically be available to other family members, evidencing to my mind a level of premeditation and deception in his conduct. It was in any event inherently deceptive conduct, including concealment of the phone on one occasion. There is though a degree of opportunism in the conduct.
24․The offender preyed on his young daughter when she was vulnerable, while she asleep and while she was in the shower. She was in her home environment, amongst her family, where she was entitled to feel safe and to have her privacy respected. The offender gravely breached the trust of his daughter and the family unit. It was, accounting for the increased maximum penalty as aggravated by family violence, offending that occurred in the family home and exposed children to such violence.
25․The immediate response to the detection of his offending was a denial. This is perhaps understandable in the circumstances, but it meant that his daughter did not receive the immediate validation of being the subject of traumatic and disturbing offending behaviour. She seemingly was also of an age to immediately understand the abhorrent nature of her father’s behaviour towards her. It is apparent that this detection was the reason for the offending conduct to cease, rather than it being of the offender’s own volition.
26․It was offending behaviour that occurred more than once, that is, it was not an isolated occasion in which the material was produced. It is a ‘rolled up’ charge, being objectively more serious, and encompasses four images and a video in a period of two months. The material produced with the use of his daughter escalated in its explicitness, involving her breasts and buttocks, and placing his penis against the victim’s arm and her lips. The intimate nature of the material is of concern, involving as it did not only exposure and viewing of intimate areas of the child, but direct exposure of his own penis in relation to his daughter in a circumstance of exploitation.
27․There is no information as to the duration in which the acts occurred, including the length of the video, but it was plainly not momentarily given the opportunity taken to remove linen and clothing. It did not though involve any violence or coercion. Further, fortunately, the material remained in the offender’s possession and there is no suggestion that the production was for anything other than the offender’s personal viewing.
28․Also fortunate is that the victim did not have awareness of the material being taken at the time, although she has the memory of recalling her father being present in her room with his phone on one occasion, which is likely a haunting memory for her now. As the prosecution submitted, this circumstance emphasises the trust she held in her father, which was grossly violated.
29․It can be readily concluded that the only appropriate penalty is one of imprisonment. This was accepted on behalf of the offender.
Effect on the victims
30․The depths of impact that such offending is capable of having on the victim and her family is difficult to articulate. The Court was assisted with victim impact statements in this regard.
31․The victim’s mother describes, in a statement that reflects her strength in finding a way forward for her children, that the crime has been devastating for their daughter, for herself, and for their other two children. Their daughter’s mental health has been impacted, she is no longer able to sleep alone and struggles to engage in normal activities involving strangers such as playing at a playground. She is overwhelmed with anger and feels she has lost trust in everyone. The damage to her is described as being profound.
32․The victim’s mother expresses the impacts on her as including feeling deeply betrayed, with her dreams of a life as a family shattered. The children have lost their childhood home, and there are financial impacts. The action of the offender in providing significant funds from the sale of the home is acknowledged, and the victim’s mother expresses that the offender has shown his remorse in his actions, that he has been unselfish and he wants their daughter and sons to have the best life possible.
33․The victim’s mother continues to recognise the offender’s positive attributes and the impact the crime has also had on him. She expresses that she does not believe he belongs in jail, acknowledging the offender’s own experience of sexual abuse, and she believes in his capability to rehabilitate. Nonetheless, she recognises that her daughter needs to know that people cannot hurt her so deeply and “get away with it”.
34․Additionally, the victim’s grandparents have provided statements in which significant grace and forgiveness is also demonstrated. Equally though, the significant impacts on the family unit are expressed. They explain the trust they had in their son-in-law and the deep sadness that that trust was broken. They grieve from seeing the grief that their daughter and grandchildren experience. The grandparents have had their own lives significantly disrupted with the need to provide safety and support to the offender’s family.
Plea of guilty and assistance to authorities
35․The offender pleaded guilty at the fifth mention in the Magistrates Court. While this was after an initial plea of not guilty, the plea was entered before the provision of the brief of evidence. The plea of guilty was entered as a result of negotiations, leading to a ‘rolled up’ charge. Such a form of negotiations appears to me to be distinguishable from the form of ‘benefit’ from negotiations considered in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [56], where there is a prospect of a lower sentence flowing from a lesser charge or fewer charges. This is because the reduction in the number of charges here does not result in a distinction of significant substance in the sentencing exercise. In the circumstances of this plea of guilty, I consider a reduction in the order of 25 per cent would typically be warranted. The prosecution accepted this.
36․However, the prosecution submitted that s 35(4) of the Sentencing Act is enlivened. That is, that the case was overwhelmingly strong, and an acquittal was realistically unlikely: R v Newby [2022] ACTCA 20 at [31]. The basis of this submission was the observation of the images by the victim and her mother, the victim’s immediate complaint, and the admissions of the offender to the police. The prosecution submitted that, with reference to what was said by Mossop J in R v Snowden [2022] ACTSC 186, an appropriate reduction, that was not significant, would be in the order of five to ten per cent. The prosecution further submitted that to the extent there was assistance to the authorities, enlivening s 35A of the Sentencing Act, the admissions were limited, amounting only to the taking of the images and there being no admissions that established the mens rea of the offence.
37․Putting aside the admissions made by the offender, I do not accept that there was an overwhelmingly strong case with an acquittal realistically unlikely. Given the images and video had been deleted, the prosecution case would otherwise have relied on the recollection of the young victim and her mother. The agreed facts suggest that there is inconsistency in the nature of the images particularised for the offending, and the victim and her mother also had not viewed the video. The admissions though do establish all the material relied upon for the offending.
38․Further, as to the admissions, I am also not persuaded that these are of the limited value that the prosecution submitted. I find it difficult to reconcile the prosecution submission that the admissions were limited, but that they are nonetheless important to establish an overwhelmingly strong case. I do though accept the prosecution submission that the degree of assistance to the authorities is not complete given the offender himself deleted the material from his phone.
39․On behalf of the offender it was submitted that the approach by the prosecution “has the capacity to have the result of a person who cooperates with authorities from the outset and pleads guilty in [an] early stage in a sexual offence matter being penalised for that cooperation”. I agree that this is the potential outcome if I accepted the prosecution’s submission. It appears to me that it would be a perverse outcome if an offender who makes admissions to the offending is to lose the benefit of such assistance by virtue of creating an overwhelmingly strong case such that no reduction can be afforded.
40․Offenders subject to sexual abuse allegations who make admissions to the offending, thus sparing a victim from additional trauma by engagement in the criminal justice system, and who then come to plead guilty to such offending, must be entitled to expect that available legislated reductions in penalty will be given due weight. This was recently observed by Baker J in DPP v Lock (a pseudonym) [2025] ACTSC 231 at [166]-[167] (with citations omitted):
[I]t is important to appreciate that the giving of such a reduction encourages other offenders to enter pleas of guilty in future cases. Such pleas avoid the trauma that is often occasioned to complainants as a result of giving evidence.
For this reason, whilst the quantum of the reduction is primarily determined by the timing of the plea, a higher reduction may be appropriate where the plea avoids a complainant giving evidence and/or being cross-examined in a sexual assault trial.
41․This is not to say that any such reduction should be disproportionate to the gravity of the offending, as the prosecution submitted, and as both s 35(6) and s 36(4) of the Sentencing Act provide. But, admissions and pleas of guilty by sexual abuse offenders are to be encouraged and the full extent of reduction that can appropriately be applied ought to be afforded. As submitted on behalf of the offender, it matters little whether the reduction is attributed to the timing of the plea, or to reflect his assistance to the authorities, but that there should be a substantial discount.
42․I consider it appropriate to approach this matter by having regard to the admissions in concluding that the prosecution case was overwhelmingly strong. A reduction of 5 per cent is therefore appropriate for the early plea of guilty. Nonetheless, having regard to the considerations in s 36(3) of the Sentencing Act, there was timely and valuable assistance to authorities by way of admissions, albeit not complete assistance. A reduction in the order of 20 per cent is appropriate. Accordingly, a reduction of sentence in the order of 25 per cent is appropriate.
Subjective circumstances
43․The offender is now aged 47 years and was aged 45 years at the time of the offending. He has no criminal history.
44․His subjective circumstances are contained in an ICO assessment report dated 11 June 2025, and forensic psychological assessment reports dated 3 and 12 June 2025.
45․The ICO assessment report finds the offender suitable for such an order. His accommodation is assessed as suitable, he has been assessed as suitable for a community service work condition, and he has protective factors available to him. The family of the offender indicated to Corrective Services that they have no concerns regarding their need for protection from violence or harassment.
46․The offender completed year 12 and attended university. His qualifications led to his employment in a management role with an ACT school for a lengthy period, however he resigned once the offending behaviour was disclosed, and he has been unemployed since. He is conscious that the outcome of the court proceedings could limit his employment opportunities, and he has been working towards construction certifications with a view to gaining employment in the future.
47․The offender does not have substance misuse challenges, and engages in pro-social activities in his spare time. He does not have any physical health issues of concern, although had been prescribed medication to assist with sleep at the time of the offending following a “cancer scare”.
48․The offender has some friendships, in particular, the support of the family of a fellow student that he went to high school with who has recently passed away and is reported to have experienced sexual abuse at the same school as the offender.
49․The offender met his wife through mutual friends in 2009, and they married in 2011. They share three children including the victim, and two younger sons. The offender’s sons are neurodiverse and the offender reports that they require additional assistance.
50․The offender and his wife separated following the offending, however remain in frequent contact via telephone, particularly to facilitate the offender providing support to his sons. His wife and children have permanently relocated interstate. The offender is willing to respect his wife’s wishes in relation to the future of their relationship, and advised the ICO report assessor that his wife would like him to remain involved in the upbringing of their children. The offender has facilitated the sale of the family home in the ACT, and intends that his wife and children will receive 95 per cent of the sale price to enable them to continue to reside interstate.
51․The offender was born interstate and is one of two children to his parent’s union. He came to live in New South Wales (NSW) from four years of age, residing in two locations in that state due to his father’s employment. The offender does not report any significant disadvantage from his upbringing, advising that he and his sister had been well looked after by his parents. He benefits from close and supportive relationships with his parents and sister. His sister has provided a letter of support for him in which she expresses that:
He has a steadfast character which is evidenced by his long-standing employment, stable lifestyle and home life.
It was a complete shock to learn of the circumstances surrounding his arrest. I whole heartedly believe he was under significant stress because of suppressing the child abuse he was subjected to. [The offender] has since revealed that he endured many instances of abuse as a child by different perpetrators. …
[The offender] has shown genuine remorse for his actions that have led to his current circumstances; isolated from his family, without a career, and soon to be displaced [from the family home]. …
I believe he is fully committed to rehabilitation and the future opportunity to see his family.
52․The abuse that the offender’s sister refers to is information that was disclosed to the ICO assessor, being that the offender was the victim of several alleged sexual assaults during his adolescence, including incidents occurring whilst at boarding school. He had not reported the assaults until early 2025, after his own offending had come to light.
53․To the forensic psychologist, the offender described that he was exposed to several incidents of childhood sexual abuse perpetrated by different individuals. This commenced from when he was six years of age, and occurred also in his adolescence. He explained that he first disclosed his own childhood sexual abuse to his wife and her parents soon after he was confronted with the offending material.
Remorse
54․The prosecution accepted that the offender has remorse as to the offending, with the offender appearing to understand and appreciate the consequences of his offending. I agree, with reference to the plea of guilty and the information contained in the reports, that genuine remorse is exhibited.
55․From the outset to the police, the offender was, as the prosecution submits, “identifiably remorseful”. He recognised the long-term consequences on the family unit.
56․To the ICO assessors, the offender stated that he agreed with the statement of facts. He attributed his actions to his poor mental health at the time, which he believed was a result of stressful changes at work, his health and medication, and his history of being a victim of sexual assault. The report describes that “in addition to acknowledging how his life has been significantly impacted and uncertain[t]y about his future as a result of his actions, he also verbalised victim empathy and expressed grief about the loss of [his] relationship with his wife and children”.
57․Similarly, to the forensic psychologist, the offender is described as confirming his involvement, and not disputing the facts. He is described as having “expressed regret about the course of his actions, and more so, the lack of consideration for his daughter”. He has insight that his actions would affect his daughter now, and in the future, as well as having impacts on his other family members. The offender also expressed that he had “let everyone down” as a result of his offending. He explained the depth of his understanding of child exploitation materials and the importance of child protection from his employment role.
58․Further, in a letter to the Court the offender explained the depth of his remorse. He acknowledged that he has he “irrevocably broken [his daughter’s] trust and scarred her for the rest of her life” and that he can never be forgiven. He feels shame, and feels immense guilt for the broken family his actions have caused.
Psychological and mental health evidence
ICO assessment report
59․To the ICO report writers, the offender reported experiencing a history of depressive symptoms, which were not investigated nor treated until after the offending was detected. He described a period of high stress in 2020 surrounding the COVID-19 pandemic lockdown and related impacts on his employment, as well as stress in relation to his son’s schooling. He also reported significant stress in 2024 due to a ‘health scare’, and suicidal ideation in the context of his offending in late 2024. He has been diagnosed with depression and anxiety and is currently medicated as a result.
60․Canberra Health Services records show that the offender initially contacted Access Canberra Mental Health seeking psychiatric assessment whilst driving back to the ACT on 29 December 2024. Police came to be involved in a welfare context and were advised to take the offender to a hospital. He was transported from the police cells to the hospital. He was not admitted, but a home visit follow up was organised. On 1 January 2025, he came to be admitted to the hospital after self-presenting with depressive symptoms. He was referred to community support services upon discharge. On 24 January 2025 he was seen by Access Canberra Mental Health for psychiatric review and advised to continue with medications and encouraged to engage with psychotherapy.
61․He commenced psychology sessions in February 2025 and has attended sessions since that time. In addition, he has commenced counselling with Everyman, and has taken the initiative to engage with a men’s treatment group program.
62․The ICO assessors find the offender to have a “low risk of general reoffending” and a “below average risk of sexual offending”. He is found to be suitable for a low level of supervision commensurate with the assessed risk. ACT Corrective Services recommends that the offender would benefit from ongoing mental health intervention, to re-commence employment, and to complete a sex offender treatment program if assessed as suitable.
Forensic psychologist reports
63․The offender participated in forensic psychology assessments in May and June 2025 for the purposes of reports tendered on sentence. The forensic psychologist, Dr Luke Hatzipetrou, was cross examined by the prosecution at the sentence hearing. The information available to the forensic psychologist included a previous assessment undertaken by another psychologist who proposed a diagnostic formulation of depression, anxiety, stress, attention difficulties, post-trauma reactions, sleep difficulties, autistic traits, and attention deficient hyperactivity disorder (ADHD).
64․In the initial assessment with the forensic psychologist, the offender described that he had been in “a dark place” around March 2024. He initially denied that the offending was for sexual arousal or gratification, noting that his penis was not erect at the time of the photograph. He expressed to the psychologist that he had been “curious” about his daughter’s development and was video recording her. The psychologist describes that the offender “claimed that he had been interested in the changes in his daughter’s development as she ‘matured into a young woman’”. The offender noted that his daughter’s age was similar to that of a female babysitter who sexually abused him.
65․The offender said that he did not “feel strong enough” to manage his urge, and that, at the time of the offending, he perceived that his daughter would not be harmed nor aware of the act as she was asleep.
66․In the first report, dated 3 June 2025, and based on a review of documentary material and the interview on 2 May 2025 with the offender, Dr Hatzipetrou found:
(a)The offender presented with a cluster of signs and symptoms consistent with an adjustment disorder with depression and anxiety;
(b)The offender referred to trauma symptoms related to adverse events in his childhood, with the symptoms having diminished in intensity and frequency, resulting in evidence of residual symptoms which did not breach the clinical threshold of post-traumatic stress disorder;
(c)There is a clinical presentation of evidence of symptomatology consistent with ADHD as defined by the DSM-5;
(d)The current assessment did not reveal attitudes or urges consistent with a paraphilic disorder, namely paedophilia or hebephilia;
(e)The offending behaviour appears to have been uncharacteristic; and
(f)The offender’s history and exposure to adverse events, and his clinical history, suggest that the offending behaviour was not entirely unexpected.
67․As to the last of these, the forensic psychologist found:
Whilst the actions are abhorrent and reflect a gross beach of trust and violation perpetrated by a parent, [the offender] is reportedly a victim of multiple episodes of sexual abuse perpetrated in his childhood and adolescence that have been suppressed, and as such, not effectively processed. As such, [the offender] had been unaware of the impact of this childhood trauma until his recent engagement in treatment.
68․The forensic psychologist initially found that several factors likely contributed to the onset of the offending behaviour, namely:
(a)The incidents of childhood sexual abuse that the offender experienced which included the offender’s first abuser sharing similar physical attributes to his daughter;
(b)This resulted in erroneous interpretations and perception about his daughter, with this underpinning the offending behaviour;
(c)There had been intimacy deficits in his relationship, attributable to multiple stressors and depression;
(d)At the time of the offending, the offender was exhibiting a cluster of affective, behavioural, and cognitive symptoms consistent with a depressive disorder, and appeared to be experiencing a depressive episode; and
(e)The offender presents with emotional and behavioural impairments in
self-regulation related to ADHD.
69․The forensic psychologist concluded that the offender was likely to know that his actions were wrong, yet he did not appear to fully appreciate the seriousness of his conduct until he was confronted by his daughter and his wife. Further, he concluded that:
[The offender’s] capacity for reasoning and judgment at the time of the offending was likely to be impaired. Similarly, his ability to monitor and regulate his emotional and behavioural responses was further impaired.
70․In terms of treatment, the forensic psychologist found that the offender, being an individual who has been apprehended at a time close to the onset of the sexually aberrant behaviours, is more likely to respond positively to focussed clinical and forensic interventions. It is recommended that community based interventions, with ongoing engagement with current therapeutic engagements, are best placed to reduce the risk of recidivism.
71․Dr Hatzipetrou observed that if the offender were to be incarcerated, he would not have access to necessary clinical and forensic supports, and pharmacological interventions to address ADHD. He would also be vulnerable in such a setting due to his lack of previous involvement in the criminal justice system. He accepted though in cross examination that access to pharmacological intervention was not a priority, with the offender yet to be formally diagnosed with ADHD. The forensic psychologist also accepted in cross examination that material from the Alexander Maconochie Centre includes that there are services available including access to clinical and forensic psychologists to address sexual re-offending.
72․The forensic psychologist produced a subsequent report with reference to an updated statement of facts, and a further interview with the offender. During the subsequent interview, the offender confirmed there were additional photographs taken of his daughter beyond what were discussed in the earlier assessment. He also advised that he engaged in masturbation after viewing the images. To the psychologist, the offender explained that he experienced feelings of guilt and shame, and concerns as to the stigma associated with the offending. He referred to difficulties “talking about these behaviours”.
73․The offender is described as having acknowledged that he did not have an “exit plan” for the offence pathway, not having considered plans to cease the actions. He is described as having accepted that the offending behaviour may have continued and potentially escalated.
74․In the second report, the forensic psychologist finds that the offender’s incomplete disclosures during the initial assessment are not unexpected, but that the offender has now recognised that full admissions are required to achieve an effective treatment outcome.
75․The psychologist concludes that the offending behaviour was driven by sexually deviant urges and beliefs. The offender’s understanding about the deviancy of his actions was likely to be affected by his previous childhood sexual abuse. His understanding of sexuality, relationships, and boundaries between children and adults was likely to be corrupted. The psychologist finds, following the second assessment, that the offender had formed minimisations and justifications for his actions. This finding appears more consistent with the offender’s record of interview, in which he provided explanations to the police that included that he was using his own prescribed sleeping medication, but had been experimenting with medication prescribed to his wife and son.
76․The forensic psychologist also found, in light of the further information that indicated the offending was not isolated, that the offender did present with behaviours and urges reflecting paraphilia.
77․Nonetheless, in re-examination, the forensic psychologist maintained that the offending occurred as a result of several factors, including the childhood sexual abuse experienced by the offender.
78․The recommendations made as to treatment remained the same, with the forensic psychologist expressing in re-examination that a multi-systemic intervention remains appropriate to address the risk factors.
Offender’s own childhood sexual abuse
79․In considering the role of the offender’s own experience of childhood sexual abuse in the sentencing exercise, on behalf of the offender it was not pressed that it enlivened Bugmy (Bugmy v The Queen [1990] HCA 18; 169 CLR 525), nor was Verdins (R v Verdins [2007] VSCA 102; 16 VR 269) relied upon other than with respect to hardship from imprisonment.
80․The parties instead agreed that the approach I took in DPP v Wade [2024] ACTSC 392, with particular reliance on what was said by the NSW Court of Criminal Appeal in Da Silva v R [2024] NSWCCA 216, was appropriate to be applied here. That is, where an offender satisfies the Court on the balance of probabilities of the abuse having occurred and of the abuse having played a role, in some material way, in the offending conduct, the offender’s experience of childhood sexual abuse is relevant to moral culpability and, by extension, rehabilitation and community protection.
81․The prosecution submitted though that here, the offender’s childhood sexual abuse did not materially contribute to the offending. While it was accepted that the offender’s experiences had a role in his offending behaviour, it was submitted that his moral culpability ought not be substantially reduced as a result. On behalf of the offender it was submitted that the prerequisites for relying on this factor in a mitigatory way are established on the balance of probabilities, particularly with reference to the reports of the forensic psychologist.
82․I accept, on the balance of probabilities, that the abuse occurred as described by the offender. It was a disclosure made by him from an early stage, and one that he has further explained to the police in his interview, to the psychologist, and to his family. Indeed, it appears from the material that there was disclosure of one incident of abuse while he was still a child.
83․As to whether these experiences played a role in a material way to the offending conduct, I am satisfied on the balance of probabilities that they did. The forensic psychologist, while coming to a conclusion that the offender had paraphilic tendencies, maintained that the offender’s childhood experiences were a significant factor underpinning the offending behaviour.
84․Accordingly, I consider that the offender’s moral culpability for the offending is reduced. However, the necessary treatment he requires as a result of his adverse childhood experiences remains to be addressed. The grave impacts that can occur as a result of this unaddressed trauma are evidenced by this offending. The promotion of community protection and rehabilitation remain important sentencing considerations as a result of the offender’s own experience of childhood sexual abuse.
85․As an aside, I observe that this Court is again faced with the challenge of sentencing a victim of childhood sexual abuse for themselves committing childhood sexual abuse. It is difficult to find empathy for such an offender – one who is positioned to understand better than anyone the pervasive impacts of such offending – but that is not the Court’s role. It nonetheless serves as a reminder of the longstanding impacts that such offending can have. As the courts see far too often, there are generational impacts from childhood disadvantage, deprivation, exposure to substance misuse, exposure to family violence, and, as this case shows, from sexual abuse as a child. It is difficult to see where the pervasive impacts of childhood sexual abuse ends. It can only be hoped that there will come a time, with the courage and ability for victim-survivors to disclose such conduct, that the notion that a child could ever be sexually abused is only a matter for antiquated court judgments.
Current sentencing practice and patterns
86․The prosecution assisted with authorities as to current sentencing practice and patterns: ss 33(za), 34A(a) Sentencing Act. On behalf of the offender, assistance was provided with research of interstate authorities, albeit, none that are factually comparative were identified.
87․The limitations that authorities said to be comparative can provide was acknowledged, with it submitted that the authorities identified by the prosecution are factually dissimilar, and, it was accepted, objectively more serious having regard to the totality of the offending. I have had regard to the authorities provided (DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221; DPP v Myers (a pseudonym) [2023] ACTSC 142 (DPP v Myers); DPP v Gottaas-Hughes [2023] ACTSC 85) and agree with the prosecution that these are overall examples of more serious offending. There are also distinguishing factors such as lesser applicable maximum penalties in some authorities with an older child involved.
88․I have otherwise considered, as relied upon by the prosecution, the matters that inform the assessment of the objective seriousness of an offence of this type as explained by Mossop J in DPP v Myers at [38]-[46].
Time in custody
89․The offender was arrested on 29 December 2024 and granted bail on 31 December 2024. He has spent three days in presentence custody that are solely attributable to this offending: s 63 Sentencing Act.
Consideration
90․I acknowledge the submission made on behalf of the offender that fulltime imprisonment is not necessarily warranted, and that there are factors that support this being an appropriate course. I also acknowledge, while not determinative, nor even informative given the legal exercise to be undertaken, that the offender’s former wife expresses her concern as to the appropriateness of imprisonment of the offender.
91․The prosecution submitted that a period of fulltime imprisonment was warranted, and further submitted that an ICO was not a necessary sentence order, given the finding of Corrective Services that, while an ICO is a suitable order, the offender is assessed as suitable for low level supervision. The prosecution accepted that partial suspension of the term was an available sentencing order. The prosecution acknowledged that the offending conduct is likely to impact the employment opportunities for the offender, a matter the Court also recognises. The Court also recognises that any period of fulltime imprisonment will have impacts, in terms of the availability of financial and emotional support, to the offender’s family.
92․Nonetheless, in our community, a response by fulltime imprisonment is the available mechanism by which sentencing purposes such as just and adequate punishment, denunciation, accountability, deterrence, and recognition of harm to the victim are fulfilled in a sentence order involving the sexual abuse of a child, particularly the form of abuse as occurred here. It was disturbing and serious offending involving a grave breach of trust and exploitation of a daughter. While the offender exhibits genuine remorse, which contributes to reducing the likelihood of reoffending, the offender has progress to make with his insight into the cause of the offending and his rehabilitation. Community protection remains relevant. A period of fulltime imprisonment is to be imposed.
93․Whether an ICO is therefore necessary or not is irrelevant as a consequence of the conclusion that only fulltime imprisonment can reflect the gravity of the offending. Nonetheless, the finding of Corrective Services as to the limited risks of reoffending and the supervision required, is informative as to it being appropriate to impose a combination sentence rather than one involving a parole order. It is apparent that a probation condition under a good behaviour order will provide the necessary supervision and support upon release from custody.
94․I recognise the forensic psychologist’s recommendation that continued progress with rehabilitation is best placed to occur in a community setting, and I recognise the adverse effect that custody will have on the offender. Nonetheless, the offender’s early stage of progress into understanding the reasons for his offending, and the finding that he does present with behaviours and urges reflecting paraphilia, elevates the role of community protection and deterrence in the sentence to be imposed. While the custodial setting may not present the ideal setting for therapeutic intervention, a partially suspended sentence will enable the offender to have the necessary supports in place upon release.
95․The offender has been found suitable for community service work. While he certainly has a responsibility to ‘repay’ the community for his crime, I consider that imposing such a requirement after a period in fulltime custody, if even available under a combination sentence, would be ultimately detrimental to his rehabilitation. Upon release from custody, it is in the offender’s, and his family’s, best interests that he be available to rebuild his life and to engage again in paid employment, in whatever form he is able to achieve this.
96․In the process of rebuilding, it will be necessary that the offender engage in psychological support. He accepts this, and I have confidence that he will do so, and that his immediate and extended family will ensure that he does. The offender has taken steps toward rehabilitation, even without any court mandate, and he is motivated to continue to do so. There are solid prospects of rehabilitation.
97․It is appropriate that the period of partial suspension be relatively early to reflect the matters in mitigation that arise. This will also enable the offender to have certainty as to his release date with a view to making arrangements to rebuild his life and provide again to his family. The certainty as to release date will also enable him to put in place the therapeutic supports necessary to ensure such offending never occurs again.
Orders
98․For those reasons the following orders are made:
(1)On the charge of aggravated use of a child under the age of 12 for the production of child exploitation material (CAN 12737/2024), the offender is convicted and sentenced to 18 months imprisonment, reduced from 24 months imprisonment on account of the plea of guilty, to commence on 7 July 2025 and end on 6 January 2027.
(2)The total period of imprisonment of 18 months, commencing on 7 July 2025 and ending on 6 January 2027 is to be suspended after 4 months, from 6 November 2025.
(3)Sean Clouns is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period 14 months and 1 day, from 6 November 2026 to 6 January 2027, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 24 July 2025 |
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