Director of Public Prosecutions v Kenyon
[2023] ACTSC 365
•5 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kenyon |
Citation: | [2023] ACTSC 365 |
Hearing Date: | 3 November 2023 |
Decision Date: | 5 December 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) On the charge of act of indecency in the second degree contrary to s 58(1) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to five years, six months and seven days imprisonment to commence 23 February 2022 and expire 29 August 2027. (2) On the charge of act of indecency with young person under the age of 16 years contrary to s 61(3) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 2 years, 3 months and 18 days to commence 5 November 2026 and expire 22 February 2029. (3) I impose a nonparole period of four years commencing 23 February 2022 and expiring 22 February 2026. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the second degree – act of indecency with young person under 16 years – “every parent’s worst nightmare” – guarded prospects of rehabilitation – active desire for desistance of further offending – sentenced to a term of imprisonment – nonparole period imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 58, 61 |
Cases Cited: | Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 |
Parties: | Director of Public Prosecutions Anthony James Kenyon ( Offender) |
Representation: | Counsel K McCann ( DPP) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 164 of 2022 SCC 165 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․On 10 July 2023, Mr Anthony Kenyon (the offender) entered pleas of guilty to the following offences:
(a)An offence of act of indecency in the second degree contrary to s 58(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 12 years’ imprisonment; and
(b)An offence of act of indecency with young person under the age of 16 years contrary to s 61(3) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.
2․The offender in this matter was 23 years of age when the offences were committed on 23 February 2022. The victim was 12 years of age at the time of the offending. The victim and offender were previously unknown to each other.
Agreed facts
3․The agreed facts are set out in a Statement of Agreed Facts tendered on sentence. The agreed facts may be summarised as follows.
4․At approximately 3:06pm on 23 February 2022, the victim contacted her mother to inform her she was about to ride her bike home from school. The victim then set off and rode through a wooded area called Fadden Pines. The victim was wearing her school uniform.
5․As the victim rode along the path, she saw the offender walking towards her on the opposite side of the path. She noticed the offender was staring directly at her and she felt scared as he got closer to her. As she rode closer to him, the offender shoved her off her bike. The victim fell over her bike and hit her chin as she fell. The offender then grabbed her and dragged her approximately three metres further into the dirt off the path. The offender climbed on top of her, straddled her stomach and held her down with his knees. The offender used both hands to squeeze her neck for at least 10 seconds.
6․The victim tried to pull the offender’s hands off her neck or slap him, but she did not have the strength and eventually gave up. The victim also tried to offer him money but could not draw enough breath to speak. At some stage after this, the victim lost consciousness.
Evidence of Witness, JG
7․At this time, Witness JG (“JG”) was walking along the path in Fadden Pines. He saw a male up ahead walking suspiciously in the bushes off the track. He described the figure as ‘flitting furtively’ through the bushes in a zig zag direction. JG did not speak to the man. JG continued walking and saw the victim lying somewhat on her side on the ground near her pushbike.
8․JG asked the victim if she was alright, but she did not respond. He realised that she was unconscious. The victim then woke up, began to stand and started to stagger around. The victim then started screaming and said, “I’ve been choked”. The victim’s shoes were no longer on her feet and her school backpack was some distance up the path.
9․JG called 000 on his mobile phone. While doing this, the victim called her mother. The victim’s mother described the victim as “very distraught, hysterically crying, screaming”. The victim’s mother spoke to JG on the phone to understand where they were located.
Evidence of victim’s father
10․After the above phone call, the victim’s mother called her partner, the victim’s father, and told him the victim had just been assaulted. The victim’s father was at home with the victim’s child cousin. The victim’s father and the child drove to Fadden Pines to find the victim.
11․As the victim’s father drove through Fadden Pines, he passed the offender and asked him if he had seen a young girl who had just been assaulted. At this time, the victim’s father did not know he was speaking to the offender. The offender answered, “No”.
12․The victim’s father continued to drive through Fadden Pines and found the victim a short time later. The victim’s father got out of the car and walked over to the victim. He observed the victim’s face and neck was very red, the top buttons on her shirt were ripped open, she had nail marks on her chest and her hair was “messed up”. The victim said, “Someone just bashed me, and he choked me and I was unconscious on the ground… he put his hands around my throat and choked me and he had me on the ground and was on top of me”. The victim got into her father’s car and they drove back towards Fadden Pines. As they drove, the victim described the offender’s appearance, which reminded her father of the man he had just passed on the drive into Fadden Pines.
13․As the victim’s father drove out of Fadden Pines, he passed the offender walking on his own. The victim pointed towards him and told her father, “That’s him. He did it”. The victim’s father pulled over and asked the victim to get out of the car and confirm if this was the person who attacked her, which she did. The victim’s father said to the offender to wait for the police to arrive. The offender asked, “What do you mean?”. The victim’s father replied, “You just bashed my daughter. What did you – what did you try to do? Did you try and rape her or something?” The offender denied this but stated that he had changed his jacket. The victim got back into the car. The victim’s father punched the offender and told him to get on his knees. The offender asked, “Are you going to put me in your boot now?” The victim’s father was angry and confused by the question. The victim’s father took the offender’s phone and, as he drove away, he took a photograph of the offender out of his car window. The offender’s phone was later seized by police.
14․The victim’s father drove the victim home where he called 000. Police attended and spoke to the victim and her parents.
15․After being punched by the victim’s father, the offender lay on the ground in Fadden Pines until he saw an unknown teenage boy walk past. The offender asked the teenage boy to call an ambulance. They then walked to Chisholm shops to wait for the ambulance.
16․Police arrived and spoke to the offender with body worn cameras activated. The cameras recorded the offender providing the following account:
(a)He said he had been walking from Tuggeranong for fitness;
(b)He showed the Officer on Google Maps where he had been walking in Fadden Pines;
(c)He denied seeing or interacting with any girls during his walk;
(d)He stated a man had punched him many times to the face;
(e)He suggested the man who punched him must have confused him for someone who had done something to his daughter;
(f)He said, “If this man is right about his daughter being attacked, I’m sure he’s gotten in contact with you as well… did he mention that he took my phone?”
17․Police transported the offender to the Canberra Hospital for assessment. Radio transmissions relayed information about the attack on the victim. At approximately 5:30pm, the offender was cautioned and arrested at the Canberra Hospital. At approximately 9:30pm, the offender was transported to the ACT Watchhouse.
18․The offender participated in a Record of Interview on 23 February 2022, at 11:12pm. The offender agreed to be interviewed with an interview friend present. He provided the following account:
(a)The offender stated he had woken up at 8:00am and organised to go for a walk with his friend.
(b)His mother dropped him at the Tuggeranong Interchange to meet this friend.
(c)The offender’s friend then told him he was no longer coming, so he decided to walk around the lake by himself instead for exercise at 9:30am. He walked for about half an hour.
(d)He went to Tuggeranong, went into the Hyperdome and ate a meal from Oporto. CCTV footage from Tuggeranong South Point Shopping Centre shows the offender eating a meal at approximately 10:45am.
(e)He decided to go to a café near Chisholm Coles. He walked through Fadden Pines to get to this café. He said he walked for an hour or two, stopping only to use a restroom in Fadden Pines.
(f)He said he felt uncomfortable in narrow spaces, so he walked on the wider path.
(g)He said he saw a man (the victim’s father) pull up and ask if he had seen his daughter, which he denied. The victim’s father then drove off at full speed.
(h)Shortly after this, he saw the victim’s father again and the offender asked what his problem was. He said the victim’s father then started punching him (as did the young boy with him).
(i)He said he saw a young girl sitting in the front seat who he had never seen before.
(j)He said the victim’s father then drove away.
(k)When read the allegations, the offender told police, “I’m a bit suspicious there weren’t more people there”, and that he was not worried “in the slightest”
that police would find the victim’s DNA on his possessions.(l)He asked, “If there’s no one else there and there are no witnesses, how do you find that person?”
(m)The offender expressed concern that the victim’s father would spread his DNA using his mobile phone.
Injuries reported by the victim
19․The victim was assessed by the ACT Ambulance Service (ACTAS) and informed them she was shoved from her bicycle, then strangled to the point of unconsciousness. The victim said she woke up lying on her stomach. ACTAS observed the following:
(a)“Bruising/redness to anterior neck wrapping circumferential to posterior neck, nil stridor auscultated [narrowing of the airway] and nil respiratory distress”; and
(b)“The victim reported localised pain to neck region, headache and dizziness proceeding the incident”.
20․The victim was taken to the Canberra Hospital and assessed. The victim reported she had been attacked and fell into a deep sleep and blacked out. While at the Canberra Hospital, the victim was assessed by a member of the Child at Risk Health Unit (CARHU). The report of the CARHU treating doctor formed part of the Prosecution Tender Bundle before me on sentence and noted the following:
(a)“Extensive petechiae over most of her left cheek, left upper eyelid, soft tissue below the eye and extended onto the bridge of the nose. Similar distribution on the right-hand side of her face”;
(b)“Petechial red bruising over her chin and extensive petechiae over her forehead”; and
(c)“A large number of 1-2cm linear abrasions and bruising over neck”.
21․I note that petechiae are small round brown-purple spots due to bleeding under the skin.
22․The victim reported feeling dizzy after the event, and that she could not stand up. The victim reported having a “stomach-ache, like she wanted to vomit” and a headache. The victim felt pain in her neck and anterior neck bruising was recorded in her hospital records. It was reported that the victim had been incontinent of urine. Her symptoms also included pain over her right eyebrow and temple and neck discomfort, particularly to touch and with swallowing. The victim did not consent to examination of the lower half of her body by CARHU.
23․Photographs of the injuries to the victim taken between 23 and 27 February 2022 formed part of the Prosecution Tender Bundle before me on sentence.
Forensic evidence
24․Police seized a pair of yellow gloves and a pair of white latex gloves from the offender’s bag. Only the offender’s DNA profile was detected on these latex gloves. Police showed the gloves to the offender’s store manager at his place of employment who stated they were not gloves used at work. The witness, JG, had initially described seeing a yellow colour in the bushes. JG was later shown a photograph of the offender’s gloves and commented this may have been a similar yellow colour.
25․The offender and victim both provided forensic samples. The forensic results showed the presence of the offender’s DNA on the victim’s school jumper and inside the front of the victim’s underwear.
26․Other expert evidence was obtained in relation to grass seeds stuck to the outside of the offender’s black jacket. Police consulted a Plant Identification and Liaison Officer with the Australian National Herbarium in the ACT who confirmed the offender’s jacket came into contact with the grass where the victim was attacked.
Digital evidence
27․A summary of the offender’s internet search history prior to the offences was included in the Prosecution Tender Bundle on sentence. The search history included searches on a pornography website of the following terms: “sneak”, “sleep”, “force”, “rape”, “young”, “girl”, “little”, “jb” (a shorthand for “jailbait”) and “sissy”, as well as a Facebook search for the National Centre for Forensic Studies.
Victim Impact Statements
28․Three Victim Impact Statements were tendered from the victim, the victim’s mother and the victim’s father.
29․I note at this juncture that I refer to the victim of these offences as “victim”. I do so to protect her privacy. I must do so, while recognising it can be a less personal way of referring to a young person who has been the victim of a serious crime. Nevertheless, privacy must be protected.
30․The Victim Impact Statement of the victim detailed the offences having ‘changed her view on things’ and having made her, at times, “not feel like herself”. The victim described blaming herself for not listening to her parents when they said she “should just get picked up from school”. The victim has experienced fear of older men and “bad social anxiety” as a result of the violence, including finding it difficult to make new friends or participate in sports and dance classes. The victim has been unable to talk to strangers unless her mum is present.
31․The victim described difficulty speaking about the incident and a ‘feeling of disgust’ surrounding the offences. The victim described people comparing it to other incidents which resulted in anger on the part of the victim. The Victim Impact Statement also included the following:
All the bullying from this incident, guilt and dread has changed me so much and I hate it, it’s the worst feeling I’ve ever felt. I had never been more scared in my life until that day and I’m terrified for it to ever happen again.
32․As I stated at the sentence hearing, this is a nightmare for any parent, and I must sentence the offender properly in accordance with the law. What happened to this young girl should never have happened. I note from the Victim Impact Statement that rather than receiving support from other children at school, the victim has experienced bullying. All those at school who bully a victim are cowards. This young, smart, brave girl deserves support, not bullying. This young girl will have a great future in front of her and I can see this from her eloquent statement written to the Court. I encourage those who choose to bully this young girl to take a long hard look at themselves. Such behaviour is cruel and unacceptable, at school and in our society.
33․The Victim Impact Statement of the victim’s mother included the following:
He’s taken every right from me to be a normal mum. Having [my daughter] changed my life. I had a really rough start in my childhood. I grew up fast. I had [my daughter] at 21 and she made me feel so grateful to be a mum. She was such a sweet, gentle, kind-hearted kid that I just wanted to be the best mum in the world. She made me fall in love with motherhood. Two years ago, I was excited to start that next part of parenting where I could give her a bit more freedom and responsibility by letting her ride to school. To be able to enjoy every day like a kid should. She was so proud when she rode to school, she called me and told me she got there fine and had locked her bike up. She eased my anxiety about letting her ride to school.
It was me that said she could ride home. The way I feel that it was my own fault for letting her ride home has to be the worst feeling a parent can live with. I now live with paranoia. I’m paranoid every day my kids are out in the world. I’m not able to trust the community. He has ruined any kind of trust or hope in the world that I had.
If I had just picked her up from school that day, he wouldn’t have had the opportunity to lay hands on her. That will live with me for the rest of my life. No matter how many people tell me this is not my fault. That’s where he has taken from me the right to be a proper mum. To let them grow up the way I wanted to let them. To let them be kids.
…
Time has not healed anything for me. This will haunt me every time one of my children asks to go outside alone. Every time one of them is old enough to have more freedom, I will be scared. [The victim] is super strong. But she shouldn’t have to be. I hope she does not grow up with a hate on the world. For such an innocent kid, the view of the world through her eyes is such a beautiful thing and that has been taken from her. She doesn’t see the world the same, and I try to tell her the whole world is not like him. She has lost trust, every time she sees a stranger, she thinks he’s dangerous. She has her guards up with everything. She has been bullied at school because of this. ...
34․The victim’s father also provided a Victim Impact Statement which included the following:
Having kids and then meeting [the victim]’s mum was a turning point for me. I had a very rough childhood, so I grew up thinking the world was a bad place and people were not to be trusted, I really hated people. I was an idiot and got into a lot of trouble because I was trying to survive so everything was about me. For a long time, I didn’t want [the victim] to go out of the house by herself because I know what people are like. I didn’t want to let her out of my sight because I was scared for her.
I was starting to move out of that, I wanted to do things and take my kids on holidays. We were doing so good. I was just starting to trust the world and I wanted to be a part of it. I was starting to think the world was good. I thought treating people with kindness and respect was really important and I would teach [the victim] the same. That was the first time she was allowed out and about by herself. And then someone did this horrible thing to her. When it happened, I flew down there thinking it was kids.
I can’t go out without seeing predators everywhere. I can’t go out at all anymore. I don’t talk to anybody, not even my friends. [The victim] gets angry at me because I don’t let her out alone anymore. I don’t go to sleep because I have to keep checking on the kids. I don’t know who’s around the house. We were going to go away on holiday but now taking the kids places scares me. All I have now is anger. I’m aggressive to anyone who even looks at my daughter, I feel like I’m losing the plot. I don’t know how to function properly anymore. This has turned us into lunatics. I was right to think the world was garbage. I don’t work anymore, and I feel so angry and depressed. I feel like I’m fading away and I don’t know where to go to from here.
35․The Court must have regard for the harm suffered by the victim per s 33(1)(e) and (f) of the Sentencing Act. Recognition of harm to the victim is also a purpose of sentencing: s 7. The Court recognises the serious and long-lasting effects of this crime on the victim and her family. There is a presumption of harm to child victims: R v CV [2013] ACTCA 22 at [24]; R v Horton-Hegarty [2018] ACTCA 22 at [46]. It goes without saying that the impacts are clear and well known to this Court. Refshauge J observed in R v BI (No 4) [2017] ACTSC 71 at [1]:
While it is often said that the community speaks with one voice as to its abhorrence of sexual offences, such offences committed against children are regarded even more seriously. They steal from the young their innocence, prey on the vulnerable, and usually cause long-term seriously impairing disabilities to the victim.
36․In this case, the victim and her family have described with great strength and dignity the impacts of these offences. It is clear the victim has significant and ongoing emotional and psychological harm as a result of the offending. The offending has, and will continue to have, an ongoing impact on her sense of safety in the community, her independence and sense of self. I can see from her letter that she will not allow what happened to her to define her future.
37․Both the victim’s mother and father also detailed the significant impact of the offending – both in relation to seeing the physical and emotional harm done to the victim, and the impact on their parental relationships with their daughter and their other children. Both parents shared that the offending has resulted in heightened fear and hypervigilance. It is appropriate to take into account the impact of the offending on the family of the victim: DPP v Mitchell (No 2) [2023] ACTSC 118.
38․The prosecution made oral submissions in relation to the impact of these offences on the victim and her family’s sense of safety. I agree with the prosecution submission that, with such violence, the impact on the victim’s perception of the world and trust in fellow human beings is fundamentally altered. These offences have changed the way the victim and her family view their sense of security and their capacity to move safely in their community. I take these significant impacts into account on sentence. This impact can be expected from the nature of such crimes. Such impacts are inevitably significant.
Objective seriousness
39․The Court must have regard to the nature and circumstances of the offence: s 33(1)(a) of the Sentencing Act.
Count 1 – Act of indecency in the second degree
40․The prosecution correctly submitted that there is a “dearth of authority” in relation to this offence. Notwithstanding this scarcity, the prosecution submitted the following factors are relevant to the assessment of objective seriousness of this offence.
41․The spectrum of conduct captured by this offence under s 58(1) of the Crimes Act is significant. The infliction of actual bodily harm upon another person can range between harm which is just above “transient or trifling” and just below grievous bodily harm. Similarly, an intention to commit an act of indecency upon another person can range from sexualised words to genital-on-genital contact: R v PGM [2008] NSWCCA 172 at [31].
The nature of the assault and level of harm inflicted upon the victim
42․Clearly, the nature and seriousness of the injuries suffered and the degree of violence used is relevant: R v Bloomfield (1988) 44 NSWLR 734 at 740.
43․As described in the Statement of Facts, the offender grabbed the victim from her bike, throwing her to the ground. The offender dragged her off the path, straddled her and pinned her arms and legs down. He then used two hands to choke the victim until she lost consciousness. The victim suffered a number of injuries detailed at [19․]-[23․]. The injuries are significant and amount to actual bodily harm, an element of the offence under s 58(1) of the Crimes Act.
44․The prosecution submitted that the choking of the victim is a serious act of violence, involving the compression of a vulnerable part of the body and, in this case, depriving the victim of her neurological faculties for a short time.
The offender’s intention
45․Count 1 involves the offender inflicting actual bodily harm with intent to commit an act of indecency upon the victim. The offence is not aggravated on the basis that it was committed with this intent, as this would amount to “double counting”: Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce) at [40]. The intent is captured by the elements of this offence: s 58(1) of the Crimes Act.
46․However, the prosecution submitted that the nature of the intention of the offender is relevant to an assessment of the objective gravity of the offence. The prosecution submitted, in this case, the Court would find beyond a reasonable doubt the offender’s intention was to inflict serious harm, sufficient to render the victim defenceless, with the intention of indecently assault her, at least by way of contact with her genital area.
47․The prosecution submitted this intention may be inferred from the nature of the assault inflicted upon the victim; that is, involving multiple acts of violence, including choking the victim to the point of loss of consciousness. Further, the prosecution submitted the intention is clear from the fact that the offender got on top of the victim, straddled her, and ultimately “touched the victim’s genital region in some manner”. It is noted that the latter conduct is subject of the offending in Count 2, however it is permissible in the prosecution’s submission to consider the whole of the circumstances, when assessing the offender’s intention for the purposes of sentencing with respect to Count 1. I will deal with issues of concurrency later in this judgment.
Vulnerability of the victim
48․The vulnerability of the victim is relevant on both counts, however the fact that the victim was a child is not an element of the offence under s 58 of the Crimes Act. Therefore, the prosecution submitted that this is a relevant consideration in assessing objective seriousness of the offending for Count 1. The prosecution correctly submitted that the victim being a child renders the offending more serious. The victim was 12 years of age at the time of the offences. There was a considerable difference in size and strength between the victim and the offender. The victim was also alone, riding her bike, and the offences occurred in an area of bushland with no other persons present.
49․The prosecution made submissions that the offender “would have known of [the victim’s] vulnerability both as to her age and the fact she was alone”. This is clearly correct.
Pre-meditation
50․The prosecution submitted this Court would find beyond a reasonable doubt the offending was, to a degree, pre-meditated. The victim and the offender did not know each other, and there is no evidence the offender specifically targeted the victim. While the offending can be described as opportunistic (in the sense that the offender took the opportunity to attack the victim on this day), the offending cannot be described as “inexplicable” or “spontaneous”.
51․The prosecution submitted that, at the time of the offences, the offender harboured a sexual interest in young girls and an interest in using force to act out his sexual predilections. This was confirmed by the PSR author in describing the offender’s sexual attraction to pre-pubescent girls and his compulsion to act upon same. The Court has evidence of several terms the offender searched on the internet prior to the offences, detailed at [27]. While there is no evidence of the timing of these searches in relation to the date of the offences, the prosecution properly submitted the searches reveal a window into the offender’s mind, provide an explanation, and reflect a degree of premeditation.
52․Counsel for the offender made written submissions that the offence was not pre-meditated, consistent with the statement in the PSR that the offending was “perpetrated opportunistically, as stated by the offender”. However, at the sentence hearing, counsel for the offender correctly did not cavil with the prosecution’s submissions on the mindset of the offender at the time. This was clearly a pre-existing mindset on the part of the offender. The offending was pre-meditated to the extent of a pre-existing mindset.
Count 2 – Act of indecency on person under 16 years
53․The prosecution submitted the following factors are relevant when assessing the objective seriousness of Count 2.
The actual character of the assault, including the degree of contact
54․As stated earlier, the offence of committing an act of indecency covers a wide spectrum of conduct. In this case, the prosecution conceded the precise nature of the offender’s act is not known. As described in the Statement of Facts, the victim only recalled the initial attack by the offender. However, during the police investigation, the offender’s DNA was located on the inside of the victim’s underwear.
55․The prosecution submitted, even in the absence of a precise understanding of the nature of the act of indecency, the Court could be satisfied beyond a reasonable doubt that the offender made contact with the victim’s genitals given the location of the offender’s DNA. The offender’s actions in this regard involved a gross violation of the victim’s personal integrity. The touching of a child’s genitals is at the more serious end of the spectrum of offending covered by the act of indecency offence: R v CD [2017] ACTSC 261 at [22]. The victim’s age is also clearly relevant here, and is taken into account in the elements of the offence under s 61(3) of the Crimes Act.
Duration of the offending
56․The offending in question was of short duration. However, the prosecution submitted that the offender only ceased the offending behaviour out of a perceived risk of being caught. The Statement of Facts described JG walking along the path towards the victim and observing the offender “walking suspiciously in the bushes off the track”. The prosecution submitted that the offender would have observed JG approaching along the path and this caused him to cease his offending to avoid being caught.
Age of the victim
57․As stated earlier, the victim was aged 12 at the time of the offending, and the offender was 23 years old. The offending in question is more serious given it was perpetrated against a child on the younger side of the age spectrum captured by this offence (10 to 16 years): Shannon v R [2006] NSWCCA 39 at [28].
58․The prosecution further submitted the difference in age between the victim and the offender is also relevant. In this case, there was a significant age gap, rendering the offending more serious: R v Hammer [2019] ACTSC 182 at [27]; Corby v The Queen [2010] NSWCCA 146 at [77].
59․As the victim and offender did not know each other, there is no evidence that the offender knew the victim’s age. The prosecution correctly submitted, however, that it could be reasonably inferred that the offender was aware she was a young primary school aged girl.
The offender’s intent
60․I find beyond a reasonable doubt the offender engaged in the conduct for his own sexual gratification.
Conclusion on objective seriousness
61․The prosecution submitted that the offending subject of Count 1 is “very serious” and “of considerable objective gravity”. The prosecution made oral submissions that this offence was of high objective seriousness, and that the offender’s moral culpability was high.
62․The prosecution submitted that the act in question subject of Count 2 is a serious example of this type of offending. Counsel for the offender agreed the offending was “above mid-range”.
63․It is well established that the assessment of the objective gravity is essential to sentencing to ensure a proportionate sentence. In my view, Count 1 involves an offence of high objective seriousness in light of the factors discussed above at [40․]-[52․]. Count 2 is above mid-range in view of the relevant identifying features above at [53․]-[60․].
De Simoni Principles
64․The ‘De Simoni principle’ arises out of the case of The Queen v De Simoni (1981) 17 CLR 383 (De Simoni).
65․The High Court underlined in Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [29] that “the De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted”.
66․I also note the comments in R v Overall (1993) 71 A Crim R 170 at 175; Cassidy v R [2012] NSWCCA 68; 200 A Crim R 420 at [6] and [26], and R v Crump (Unreported, Hunt CJ, NSW Court of Criminal Appeal, 30 May 1994) concerning the De Simoni principle and offences with the same maximum penalty.
67․The prosecution submitted the following:
I absolutely see the point and I appreciate your Honour raising that, that it is a risk and a concern to be mindful of in terms of sentencing. In my submission… because the elements of the offence, being the infliction of actual bodily harm with the intent to engage in an act of indecency, can cover such a broad range of conduct, it is permissible in assessing the facts and circumstances of where the offence would fall on the scale of seriousness, to consider the specific nature of the intent that accompanied the infliction of harm… [T]hat would not breach a De Simoni point because the prosecution is not saying, for example, the intent was to engage in penetrative acts which would be itself a more serious offence.
68․Counsel for the offender made no contrary submissions.
69․I am aware of and have been careful in my assessment, as set out above, not to breach the fundamental criminal law principles underlying De Simoni.
Subjective circumstances
70․In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
71․The offender became known to ACT Corrective Services in February of 2022 when he was remanded in custody in relation to this offending. The offender’s behaviour while on remand has reportedly been satisfactory and he has not incurred any disciplinary action. The offender has no previous criminal history.
72․The offender is the oldest of three children. He reported a relatively stable home life and childhood; he was consistently provided for and reportedly never subject to neglect or mistreatment. Aged 11, the offender’s parents separated and the offender stated this time was turbulent and stressful, with verbal arguments occurring frequently.
73․The offender’s mother detailed suspicions of sexual abuse occurring after picking the offender up from a sleepover aged 10. She explained she believed an older gentleman had singled the offender out and that the offender was “not the same” afterwards. The offender’s family have remained supportive during his incarceration.
74․The offender has never had an intimate relationship.
75․The offender resided with his mother and two younger siblings at their family home. The offender plans to return to this address and he reported he is not required to pay rent while living there. However, the offender’s mother stated the residence may not be appropriate for the offender due to him having a makeshift bedroom in the lounge and the house’s proximity to the offence.
76․The offender reported to have completed his Year 12 Certificate. The offender generally “kept to himself” at school, but experienced bullying and harassment from his peers. The offender’s mother reported he had been in learning assisted classes and, when moved to a mainstream class, he received extra attention and help from teachers. It was stated he would have frequent panic attacks and was monitored regularly.
77․The offender has successfully completed a Certificate III in Accounting with aspirations to attain further qualifications and have his own business after release. He noted he was aware he would find it difficult to obtain employment given the nature of his offences. Previously, the offender had worked in a range of roles in the hospitality and food service industry. He stated he had not maintained employment for longer than a six-month period and had struggled with the perceived pressures of ongoing employment and balancing study; he expressed he intended to resume both pending release.
78․Up until the offence he was working at McDonald’s but was informed he would not have this job upon his return to the community.
79․The offender has a stable financial situation in which he is supported by his immediate family. He has no debts or major financial commitments.
80․The offender reported to have a small group of friends, none of whom possess a criminal record. However, the offender’s mother described her son to be a “loner” with one friend he occasionally engages with; she attributed his mental health issues to his reclusive behaviours. The offender stated he had infrequently seen a psychologist while in the community and communicated his attraction to pre-pubescent children and subsequent mental health issues associated with these compulsions. This information was unable to be substantiated by psychologists who have assessed the offender. It is crucial that when people approach healthcare professionals with concerns about their aberrant thought processes concerning children, that treatment is given as a matter of urgency. This is consistent with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse that “information and help-seeking services should be made available to support people who are concerned they may be at risk of sexually abusing children”.
81․A Canberra Health Services letter dated 24 October 2023 confirmed the offender’s experience of significant psychological interference and suicidal ideation. The offender has a formal diagnosis of anxiety and depression; he currently takes Escitalopram for his symptoms of anxiety as confirmed by Canberra Health. The offender has exhibited self-harm behaviours since 2019 but stated this manifested in adolescence. In 2017, the offender was first to find a friend deceased after the friend had taken their own life; it has been reported by Canberra Health he sought mental health services as a result of this traumatic event.
82․The offender reported no participation in organised prosocial activities; he stated he spends most of his time in the community playing Xbox games and spending time with the family dog.
83․ACT Corrective Services records indicate the offender has completed programs while in custody such as Alexander Maconochie Centre’s Therapeutic Interventions Programs and the Alcohol and Other Drugs Brief Intervention Program.
84․The offender mostly agrees with the Statement of Facts; he stated he has limited to no recollection of committing the offences. The offender expressed he was aware he had permanently traumatised the victim of his offences and has altered her life negatively. He stated he “never wanted to do something like this again” and appeared distressed when asked to recount the event.
85․The PSR author opined that the offences were not pre-meditated and were perpetrated opportunistically, as stated by the offender. The PSR author further opined that the main factor contributing to the offences appeared to be untreated mental health issues and unaddressed sexual attraction to children. The offender agreed with being placed on remand and expressed some fears to the author of the PSR regarding reoffending.
86․The victim and her family expressed continued concerns regarding their need for protection from violence or harassment from the offender: s 17B(2) of the Victims of Crime Act 1994 (ACT).
Conclusion of the Pre-Sentence Report
87․The offender is a 25-year-old man with no criminal history and active desire for desistance of further offending. However, his implicit disclosure of compulsive behaviours in which he may be incapable of controlling indicates he is a further risk to vulnerable demographics within the community.
88․Application of the ACT Corrective Services’ actuarial tool suggests he has a low likelihood of general reoffending, although this is not encompassing of the egregious nature of the offences and undiagnosed mental health issues which may perpetuate them.
89․On 27 October 2023, the STATIC-99R assessment tool was applied and assessed the offender as “Above Average Risk” of sexual recidivism. The PSR recommended a high level of intervention be applied by ACT Corrective Services and the offender be directed to attend psychiatric and psychological assessment. Further, the report recommended the offender be directed to engage in an appropriate program to address his assessed risk of sexual offending.
90․Taking into account all of the above information, the offender was described as suitable for a high level of intervention by ACT Corrective Services, commensurate with the assessed risk. Supervision would include strategies to address the following identified areas of dynamic risk:
(a)mental health;
(b)risk of sexual recidivism; and
(c)education and employment.
91․Supervision may also include:
(a)participation in assessment for the Corrective Services Sex Offender program or equivalent treatment/program;
(b)psychiatric and/or psychological treatment; and
(c)engagement with a Job Network Provider.
Remorse
92․Whether the offender has demonstrated remorse is a relevant consideration on sentence: s 33(1)(w) of the Sentencing Act. The prosecution conceded that the offender “appears to have expressed a degree of remorse to the author of the [PSR]”. Statements by the offender to the author of the PSR demonstrate insight into consequences of the offending for the victim and the community, including the following:
The offender expressed he was aware he had permanently traumatised the victim of his offence and has altered her life negatively. He stated he “never wanted to do something like this again” and appeared distressed when asked to recount the event.
93․However, the offender has told the author of the PSR that he has “limited to no recollection” of the events. The prosecution submitted this assertion by the offender could be rejected as it is inconsistent with the detailed account the offender gave to police on the day of the offending as outlined in the Agreed Statement of Facts at [18․].
94․Referring to the PSR, counsel for the offender submitted that the offender “seems to have recognised the trauma suffered by the young child”. Specifically, counsel for the offender referred to the statement by the PSR author that the offender “expressed he was aware he had permanently traumatised the victim of this offence and has altered her life negatively. He stated he never wanted to do something like this again.” Counsel for the offender submitted this reflects insight into the offending, however conceded the offender has not received any treatment to assist rehabilitation.
95․The prosecution accepted there was “some degree of insight” and there was “remorse in terms of the impact on the victim”.
96․Accordingly, I ascribe some weight to the remorse expressed.
Criminal History
97․The offender has no prior criminal history. I accept that the offender was a person of prior good character for the purposes of sentencing.
98․The prosecution correctly noted that the circumstances of these offences do not give rise to consideration under s 34A(b) of the Sentencing Act as the offender’s good character did not enable him to commit the offence in the relevant sense.
Pleas of guilty
99․Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
100․The offender entered pleas of guilty to the offences on 10 July 2023. The prosecution helpfully provided a chronology detailing the stage at which the offender entered guilty pleas. The offender’s pleas of guilty were entered shortly before his trial was to commence, and on the day the victim was due to give evidence at a pre-trial hearing. Counsel for the offender submitted the pleas were entered three weeks prior to the second listing of the trial, following negotiations and a change in legal representations. The pleas ensured that the victim was not required to give evidence.
101․The prosecution submitted the offender’s pleas of guilty were entered late and to an amended indictment. The pleas were also entered on alternative counts on the former indictment. The facts of the prosecution case remained unchanged. The prosecution submitted the degree of utilitarian value in saving court time, in this case, is modest.
102․The prosecution further submitted that the case against the offender was “overwhelming” and, accordingly, the Court must not afford a significant reduction for the offender’s plea of guilty. In accordance with the Court of Appeal decision in Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204, the strength of the prosecution case is only relevant in deciding whether to impose a lesser penalty where the prosecution case is “overwhelmingly strong”.
103․Section 35(4) precludes the Court from making “any significant reduction” on account of the plea of guilty if “based on the established facts” the Court considers the prosecution case was “overwhelmingly strong”. In R v Newby [2022] ACTCA 20, the Court of Appeal noted at [31] that “overwhelmingly strong” in this context refers to "an acquittal being realistically unlikely”. The prosecution submits the Court would find that the prosecution case against the offender was “overwhelmingly strong”, having regard to the following:
(a)The presence of the offender’s DNA on two locations on the victim, including inside her underwear. In circumstances where the victim and the offender were unknown to each other, there was no reasonable hypothesis consistent with innocence for the presence of the offender’s DNA;
(b)The victim provided a description of the offender immediately to her father which matched the offender’s description at the time her father located the offender in the area. There were no other persons who matched that description in the area at the time;
(c)The offender had changed his jacket following the attack on the victim which evidenced his consciousness of guilt; and
(d)The victim’s immediate complaint and visible signs of injury consistent with her recollection of the attack.
104․Counsel for the offender submitted the offender should receive a discount of 15 percent. Counsel for the offender acknowledged there was “some force” in the argument that the case is “overwhelmingly strong”, however maintained there remained utilitarian value in the victim not having to give evidence at trial in this case. The prosecution submitted a discount of “no more than five percent” was appropriate.
105․Taking into account the relevant matters, in my view, a discount of approximately between 5 and 10 percent is appropriate. Pleas of guilty must be encouraged, including in “overwhelmingly strong” cases, to assist in ensuring victims are not unnecessarily forced to give evidence. This is an important consideration that cannot be ignored in the criminal law.
Rehabilitation
106․Rehabilitation is an important consideration having regard to the offender’s age and lack of prior record. Rehabilitation is important to community protection. Currently, the offender’s prospects of rehabilitation must be said to be guarded. I note, however, as opined by the author of the PSR that the offender has an “active desire for desistance of further offending”. I further note that treatment options which would facilitate rehabilitation in custody may have been previously unavailable to the offender as a result of his status as awaiting sentence.
107․The prosecution submitted that, at the present time, the offender has low prospects of rehabilitation and currently presents as a danger to the community. As noted in the PSR, the offender has previously disclosed his sexual interest in pre-pubescent girls and, to date, has not received any treatment in relation to this. There is no evidence before the Court of any treatment plan for the future. The author of the PSR opined:
[H]is implicit disclosure of compulsive behaviours in which he may be incapable of controlling, indicates he is a further risk to vulnerable demographics within the community.
108․The offender has expressed some insight into the risk he presents to the community. This was conceded by the prosecution in written submissions. However, the offender described having “no recollection” of the offending, demonstrating self-denial of his deviant sexual interests and compulsion to act upon the same, as properly submitted by the prosecution. The Court is therefore guarded as to the offender’s prospects of rehabilitation.
109․In addition, the PSR assessed the offender to be at an “above average risk” of sexual recidivism. The prosecution submitted this risk is much higher, given the way the offender violently and brazenly acted upon his sexual interest and his lack of treatment.
110․Counsel for the offender made oral submissions that the structure of the sentence should allow the offender to access treatment and close monitoring on release from custody. Counsel for the offender emphasised the offender is still a young man, now aged 25 years.
111․In light of the foregoing, specific deterrence and rehabilitation are both important in this case. As stated by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]: “[R]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. There must be an emphasis on rehabilitation and education in our prisons so that inmates are not back in our community unrehabilitated. This is in the overarching interests of our community.
Time in custody
112․The offender has spent 1 year, 9 months and 13 days in custody from 23 February 2022 to 5 December 2023 solely referable to these offences.
113․The sentence should be backdated to commence on 23 February 2022, the date of arrest.
Comparable cases
114․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
115․In relation to Count 1, the prosecution submitted there was only one previous sentence in this jurisdiction for the offence of act of indecency in the second degree: R v Roberts [2005] ACTSC 43 (Roberts). The decision does not detail the facts relevant to the offending and therefore is not of particularly great assistance to this sentencing exercise.
116․I note in Roberts the offender was convicted of two counts of act of indecency in the second degree, two counts of act of indecency in the third degree, two counts of act of indecency without consent and two counts of unlawfully confining a person. The offender was aged 32 at the time of sentence. The offender had a criminal record, including a previous offence of armed robbery for which he was sentenced to a term of imprisonment. The offender reported having been sexually assaulted “over some period” by a teacher during high school. The sentencing judge noted the offender’s ‘sincere expressions of remorse’. The offender also entered pleas of guilty, including to crimes which, had he chosen to contest them, he might likely have been acquitted. The offender was sentenced to an effective head sentence of four years and six months’ imprisonment, with a nonparole period of two years.
117․In relation to Count 2, the prosecution referred to case summaries in my judgment of R v Naing [2023] ACTSC 210 (Naing) at [127]. However, the prosecution noted the cases are not particularly comparable where most of the cases involved a multitude of offences committed by an offender who was known to and in a position of trust in relation to the victim. The cases referred to in Naing were R v Anderson (No 2) [2020] ACTSC 98, JG v R [2023] NSWCCA 33, R v Tully (No 3) [2014] ACTSC 275, R v Kellan (a pseudonym) [2021] ACTSC 314, R v Ardron [2021] ACTSC 91 and R v Whittaker [2021] ACTSC 189.
118․The sentence in Naing concerned an offender who was found guilty after trial by jury of five counts of act of indecency on a person under 16 years, in respect of two victims. The victims in the matter were family friends of the offender. The offender experienced substance abuse in the form of high-risk alcohol use over many years. It was accepted in this case that the offender’s moral culpability was “somewhat qualified” due to his state of severe “black out” intoxication at the time of the offending. The offender did not express remorse, however demonstrated a desire to engage in treatment and had very good prospects of rehabilitation. The offender’s family, in Australia and overseas, had been impacted by his imprisonment. The offender also had an unrelated criminal history. The offender was sentenced to a total effective sentence of three years’ imprisonment, with a nonparole period of 18 months.
119․I was not referred to any comparable cases by counsel for the offender.
120․I note in circumstances where there are limited comparable cases for the offence of act of indecency in the second degree, the following cases may be referred to:
(a)R v Kaczmarek [2015] ACTSC 160
The offender in this case entered pleas of guilty to one charge of attempting to commit an act of indecency without consent and one charge of unlawful assault with intent to commit an act of indecency. The maximum penalties for these offences are seven and 10 years’ imprisonment respectively. The victim and offender in this matter were both in attendance at a licensed venue. The offender “kept looking” at the victim and her group of friends. The victim left the venue at 11pm alone and was followed by the offender. The offender ran after the victim, grabbed her from behind and put his hands on the victim’s hips and under her skirt. The offender then left the area. The offender admitted to police he intended to “lift up her skirt and touch her crotch area” but was unsuccessful. The offender was 36 years of age at the time of sentence. At the time of the offences, the offender was subject to a Good Behaviour Order (GBO) in relation to another charge of committing an act of indecency. The offender had a significant criminal history. The offender had a very limited social network and had been previously subject to psychiatric treatment orders. The offender was assessed as high risk of sexual reoffending. The offender was sentenced to a total effective sentence of 22 months’ imprisonment, with a nonparole period of 14 months.
(b)R v Hile [2015] ACTSC 236
The offender in this matter entered pleas of guilty to three counts of assault with intent to commit an act of indecency, three counts of act of indecency and one count of theft, pertaining to three victims. The facts of each instance of offending against each of the three victims are similar. The incidents involved the offender approaching a woman from behind, wrapping his arms around them and rubbing the genital area of the woman. The offender entered pleas of guilty following committal for trial in the Supreme Court and, given the procedural history at that time, the sentencing judge concluded there was no remorse in the pleas. The offender was subject to a GBO and was serving periodic detention at the time of the offending. The offender was 25 years of age. The offender maintained a relationship with his father, though had very little other support. The offender reported heavy alcohol and drug use from an early age. The offender had a criminal history that could not be “called upon to mitigate sentence” and was assessed as a high risk of reoffending. The offender was sentenced to a total effective sentence of 38 months’ imprisonment, with a nonparole period of 18 months.
(c)DPP v Linsley [2023] ACTSC 255
The offender in this matter was charged with one count of choke and render insensible or unconscious. The maximum penalty for this offence is 10 years’ imprisonment. The victim and the offender in this matter had been in a relationship. There was an argument over the owner of an Xbox at the property which resulted in a “grossly excessive response by the offender” involving taking the victim into her bedroom, onto her bed, putting his right hand on her neck and choking her. The offender subsequently grabbed the victim by the throat and pushed her back against a wall. The victim blacked out and regained consciousness to find herself on the ground. The offending was described as a “serious example of a serious offence”. The offender was 20 years of age at the time of the offending, and his criminal history involved only driving offences. The offender reported a difficult family history and longstanding mental health difficulties. The offender was sentenced to 16 months’ imprisonment which was suspended in its entirety upon the offender entering into a GBO for a period of 16 months.
(d)R v Palmer [2020] ACTSC 13
The offender in this matter entered pleas of guilty to three offences of burglary, one offence of assault occasioning actual bodily harm and one offence of choking a person and rendering them insensible or unconscious. The offender in this matter entered the house of his ex-partner, the victim, in the early morning while she was asleep. The offender remained in the house despite the victim telling him to leave. After a short verbal altercation, the offender assaulted the victim causing bruising to her leg and subsequently choked her rendering her unconscious. The offences were aggravated by virtue of having been committed while the offender was on conditional liberty and in a family violence context. The offender reportedly suffered from an anxiety disorder and panic attacks. The offender had a significant criminal record. The offender was sentenced to a total effective sentence of 30 months’ imprisonment, with a nonparole period of 18 months. Relevantly, for the offence of choke and render unconscious, the offender was sentenced to 20 months’ imprisonment.
Statutory and other relevant considerations
121․In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim and rehabilitation are important sentencing considerations.
122․As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a “yardstick”: Markarian v The Queen [2005] HCA 25; 228 CLR 357. I emphasise that the maximum penalties reflect the serious and abhorrent nature of such crimes: R v Eisenach [2011] ACTCA 2 at [86] quoting R v Dent (unreported, NSWCCA, 14 March 1991) (Dent). As stated in Dent, children are entitled to grow up free from sexual predators and free from the risk of psychological repercussions, distress and difficulties later in life, caused by such conduct.
123․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, the s 10 threshold is undoubtedly crossed on the facts of this case and therefore no other penalty other than a term of imprisonment is appropriate.
124․When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308; Mill v The Queen (1988) 166 CLR 59 at 63; Pearce; R v XX [2009] NSWCCA 115; 195 A Crim R 38.
125․In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
126․The Court must impose an appropriate sentence for each offence. The prosecution properly acknowledged, however, given the nature of the offences and the timing in which they occurred, there is scope for a period of “significant concurrency”. It is important the Court ensures the individual and total sentences reflect the serious criminality involved, and that there is an appropriate degree of concurrency of sentences in light of the concurrency of the facts.
127․As correctly submitted by the prosecution, the offender’s prospects of rehabilitation are a significant factor in fixing any nonparole period. As I stated in Naing at [163]:
The relevance of these prospects arises both in respect of the benefit conferred on an offender of the opportunity for early release and, conversely, in reinforcing the need for protection of the community where those prospects are poor (see Bugmy v The Queen (1990) 169 CLR 525 at 531-532).
128․The offender’s guarded prospects of rehabilitation are significant in the sentencing exercise in setting the nonparole period. An assessment will be required by Sentence Administration Board at the time of release back into the community to manage the ongoing risk presented by the offender. Counsel for the offender also properly and correctly submitted that parole orders should involve closely monitoring the offender on release.
Sentence
129․It must be recognised by the Court that the offences committed against the victim has had a serious and significant impact upon her, and on her family. Both the short and long-term consequences of being a victim of this offence are acknowledged. This was an appalling crime on an innocent primary school child riding her bicycle home from school.
130․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters pertaining to the offender.
131․The appropriate sentence, taking into account all sentencing factors referred to above, for the offence of act of indecency in the second degree is six years of imprisonment, reduced to five years, six months and seven days on account of the plea of guilty.
132․The appropriate sentence for the offence of act of indecency with young person under the age of 16 years, taking into account all relevant factors referred to above, is two years and six months of imprisonment, reduced to two years, three months and 18 days on account of the plea of guilty.
133․This is an overall sentence of seven years’ imprisonment. The sentence will be backdated to commence on 23 February 2022 to account for the time already spent in custody.
134․I impose a nonparole period of four years. Under s 67 of the Sentencing Act, I will make the following recommendations concerning the offender’s parole conditions:
(a)The offender be appropriately assessed as to his risk of sexual reoffending and have in place a proper treatment plan in the community for reducing his risk of sexual recidivism prior to any proposed release date;
(b)To attend psychiatric and psychological assessment;
(c)To engage in an appropriate program to address his assessed risk of sexual offending; and
(d)To engage with a Job Network Provider.
Orders
135․For those reasons the following orders are made:
(1)On the charge of act of indecency in the second degree contrary to s 58(1) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to five years, six months and seven days imprisonment to commence 23 February 2022 and expire 29 August 2027.
(2)On the charge of act of indecency with young person under the age of 16 years contrary to s 61(3) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 2 years, 3 months and 18 days to commence 5 November 2026 and expire 22 February 2029.
(3)I impose a nonparole period of four years commencing 23 February 2022 and expiring 22 February 2026.
| I certify that the preceding one hundred and thirty-five [135] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 5 December 2023 |
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