Director of Public Prosecutions v Lock (a pseudonym)
[2025] ACTSC 231
•4 June 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lock (a pseudonym) |
Citation: | [2025] ACTSC 231 |
Hearing Dates: | 28 April 2025, 19 May 2025 |
Decision Date: | 4 June 2025 |
Before: | Baker J |
Decision: | See [208] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – 32 counts – incest with a child under 10 – act of indecency with a child under 10 – incest with a child under 16 – act of indecency with a child under 16 – unlawful confinement – sexual assault in the third degree – offender older sibling of both victims – where offender subjected sisters to persistent sexual abuse for years –degrading and violent offending – where offender a young person for majority of offending – uncharged conduct occurring before offender’s 14th birthday – impact of autism spectrum disorder – s 34AA of the Crimes (Sentencing) Act 2005 – observations regarding table of proposed sentences provided by prosecution – need for “robust articulation” of sentences proposed – recommendation for aggregate sentencing to be enacted in the ACT – overall term of imprisonment of 16 and a half years to be suspended after 10 years’ imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), ss 34, 53, 61, 62, 66B Crimes (Sentencing) Act 2005 (ACT), ss 29, 33, 34AA, 133, ch 8 Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Crimes (Sentencing) Amendment Bill 2024 |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 DPP v Aghahosseini [2024] ACTSC 237 DPP v Alexander Waters (a pseudonym) [2025] ACTSC 84 DPP v Kader (No 6) [2023] ACTSC 363 DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221 DPP v Vance (a pseudonym) [2024] ACTSC 308 JM v R [2014] NSWCCA 297 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 MT v R [2021] ACTCA 26; 17 ACTLR 22 PR v The Queen [2014] ACTCA 40 R v AB [2011] ACTSC 204 R v AEM [2002] NSWCCA 58 R v Ashton (a pseudonym) [2022] ACTCA 45 R v AQ [2021] ACTSC 74 R v BNS (No 2) [2016] ACTSC 145 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v CC [2016] ACTSC 43 R v DL [2018] ACTSC 142 R v JJ [2014] ACTCA 23 R v Rae [2013] NSWCCA 9 R v SH [2015] ACTSC 25 R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383 Sarhene v The Queen [2022] NSWCCA 79 The Queen v TC (Edited Extract of Proceedings, 28 March 2011) |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 20 March 2024, 449 (Marisa Paterson) Travis Jackson, ‘Sentencing: Can We Do it Better?’, ACT Bar Association Bulletin (online, May 2025) |
Parties: | Director of Public Prosecutions ( Crown) [redacted] (a pseudonym) ( Offender) |
Representation: | Counsel S McFarland ( Crown) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 117, 118 of 2023 |
BAKER J:
EDITED EX TEMPORE REASONS
Introduction
1․The offender, [redacted] (a pseudonym), was tried before a jury from 18 November 2024 to 12 December 2024.
2․On the first day of the trial, the offender entered pleas of guilty to the following charges:
(a)Count 1: CH2023/596 – incest with child under 16 (course of conduct), contrary to ss 62(2) and 66B of the Crimes Act 1900 (ACT);
(b)Count 2: CH2023/598 – incest with child under 16 (course of conduct), contrary to ss 62(2) and 66B of the Crimes Act;
(c)Count 3: CH2023/669 – act of indecency with child under 16 (course of conduct), contrary to ss 61(2) and 66B of the Crimes Act;
(d)Count 4: CH2023/599 – act of indecency with child under 16 (course of conduct), contrary to ss 61(2) and 66B of the Crimes Act;
(e)Count 5: CH2023/388 – incest with child under 16, contrary to s 62(2) of the Crimes Act;
(f)Count 6: CH2022/967 – act of indecency with child under 16, contrary to s 61(2) of the Crimes Act;
(g)Count 7: CH2022/971 – incest with child under 16, contrary to s 62(2) of the Crimes Act;
(h)Count 8: CH2022/986 – act of indecency with child under 16, contrary to s 61(2) of the Crimes Act;
(i)Count 19: CH2022/943 – act of indecency with child under 10, contrary to s 61(1) of the Crimes Act; and
(j)Count 21: CH2022/945 – incest with child under 10, contrary to s 62(1) of the Crimes Act.
3․On 11 December 2024, the jury returned the following verdicts:
(a)Count 14: CH2022/922 – act of indecency with child under 10, contrary to s 61(1) of the Crimes Act – guilty;
(b)Count 15: CH2022/950 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(c)Count 16: CH2022/948 – unlawful confinement, contrary to s 34 of the Crimes Act – guilty;
(d)Count 17: CH2022/949 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(e)Count 20: CH2023/372 – act of indecency with child under 10, contrary to s 61(1) of the Crimes Act – not guilty;
i.In the alternative: act of indecency with child under 16, contrary to s 61(2) of the Crimes Act – not guilty;
(f)Count 30: SCCAN2024/189 – incest with child under 16 (course of conduct charge), contrary to ss 62(2) and 66B of the Crimes Act – guilty; and
(g)Count 31: CH2023/605 – act of indecency with child under 16 (course of conduct), contrary to ss 61(2) and 66B of the Crimes Act – guilty.
4․The following day, on 12 December 2024, the jury returned the following verdicts for the remainder of the counts:
(a)Count 9: CH2022/920 – act of indecency with child under 10, contrary to s 61(1) of the Crimes Act – guilty;
(b)Count 10: CH2022/941 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(c)Count 11: CH2023/942 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(d)Count 12: CH2023/976 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(e)Count 13: CH2022/927 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(f)Count 18: CH2023/369 – incest with child under 10, contrary to s 62(1) of the Crimes Act – guilty;
(g)Count 22: CH2022/947 – act of indecency with child under 10, contrary to s 61(1) of the Crimes Act – guilty;
(h)Count 23: CH2022/956 – act of indecency with child under 16, contrary to s 61(2) of the Crimes Act – guilty;
(i)Count 24: CH2022/955 – incest with child under 16, contrary to s 62(2) of the Crimes Act – guilty;
(j)Count 25: CH2022/951 – unlawful confinement, contrary to s 34 of the Crimes Act – guilty;
(k)Count 26: CH2022/953 – sexual assault in third degree, contrary to s 53(1) of the Crimes Act – guilty;
(l)Count 27: CH2022/954 – incest with child under 16, contrary to s 62(2) of the Crimes Act – guilty;
(m)Count 28: CH2023/381 – incest with child under 16, contrary to s 62(2) of the Crimes Act – guilty;
(n)Count 29: CH2023/384 – incest with child under 16, contrary to s 62(2) of the Crimes Act – guilty;
(o)Count 32: CC2022/8200 – act of indecency with child under 16, contrary to s 61(1) of the Crimes Act – guilty; and
(p)Count 33: CC2022/8201 – incest with child under 16, contrary to s 62(2) of the Crimes Act – guilty.
5․In short, the offender has entered pleas of guilty to, or been found guilty of, 32 of the 33 counts that were charged by the prosecution.
6․The offender now comes before the Court to be sentenced for four counts of an act of indecency with a child under 10, eight counts of incest with a child under 10, seven counts of an act of indecency with a child under 16, ten counts of incest with a child under 16, two counts of unlawful confinement and one count of sexual assault in the third degree.
7․The maximum penalties for each of these offences are set out in the table below:
Offence
Provision
Maximum penalty
Incest with a child under 10 years
s 62(1) of the Crimes Act
Imprisonment for 20 years
Incest with a child under 16 years but above 10 years
s 62(2) of the Crimes Act
Imprisonment for 15 years
Act of indecency with a child under 10 years
s 61(1) of the Crimes Act
Imprisonment for 12 years
Act of indecency with a child under 16 years but above 10 years
s 61(2) of the Crimes Act
Imprisonment for 10 years
Sexual assault in the third degree
s 53(1) of the Crimes Act
Imprisonment for 12 years
Unlawful confinement
s 34 of the Crimes Act
Imprisonment for 10 years
The offending
The relationship between the offender and the victims
8․All offences were committed by the offender against the offender’s two younger sisters, Paige Lock (a pseudonym) and Emily Lock (a pseudonym), from when the offender was aged 14 to 18, Paige was aged 10 to 12 and Emily was aged 7 to 12.
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Pleas of guilty – s 33(1)(j) Sentencing Act
163․The offender entered pleas of guilty to counts 1–8 on 30 April 2024 following Criminal Case Conference negotiations. The offender subsequently entered pleas of guilty to counts 19 and 21 on 2 May 2024 in the Supreme Court during the course of the pre-trial evidence.
164․The law requires that the sentences to be imposed for these offences be reduced in recognition of the entry of the offender’s pleas of guilty: s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT). The extent of the reduction is governed by what is referred to as the “utilitarian value” of the plea: that is, recognising that plea’s effect on the efficiency of the criminal justice system, while also having regard to the particular value in avoiding the need to call witnesses, especially victims, to give evidence: R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383 at [3].
165․Although the prosecution case was strong, I do not accept the prosecution submission that the case against the offender with respect to the offences committed against Paige was overwhelming, even for the two offences that were witnessed by Emily. It follows that the offender’s guilty pleas must be taken into account in determining the sentences to be imposed for those offences.
166․Viewed from the perspective of the victims, it may seem unjust for an offender to receive a reduced sentence simply because they have pleaded guilty, particularly where that plea occurs after negotiations with the prosecution. However, it 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.
167․For this reason, whilst the quantum of the reduction is primarily determined by the timing of the plea (see Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]), a higher reduction may be appropriate where the plea avoids a complainant giving evidence and/ or being cross-examined in a sexual assault trial: see similarly DPP v Aghahosseini [2024] ACTSC 237 at [105]; DPP v Kader (No 6) [2023] ACTSC 363 at [60].
168․The offender’s pleas of guilty to counts 1 – 8 and 19 and 21 avoided the need for Paige to be cross-examined. I will afford the offender a reduction of 15% with respect to the pleas of guilty for counts 1 – 8 and a reduction of 10% with respect to the later pleas of guilty for counts 19 and 21.
Comparative cases – s 33(1)(za) Sentencing Act
169․The prosecutor drew my attention to the following cases: DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221; R v CC [2016] ACTSC 43; R v DL [2018] ACTSC 142; R v BNS (No 2) [2016] ACTSC 145; R v SH [2015] ACTSC 25; R v AB [2011] ACTSC 204; DPP v Alexander Waters (a pseudonym) [2025] ACTSC 84; PR v The Queen [2014] ACTCA 40; The Queen v TC (Edited Extract of Proceedings) 28 March 2011.
170․I have carefully considered the sentences imposed in these decisions, as required by s 33(1)(za) of the Sentencing Act. However, as Mossop J observed in R v AQ [2021] ACTSC 74 at [32], there is no clear sentencing pattern for offences of this nature. Importantly none of the offences considered in the prosecution’s table involve the violence and depravity which accompanied the present offences, particularly those concerning Emily. Accordingly, whilst I have carefully considered these comparative decisions, I do not consider that they are of assistance in determining the sentences to be imposed in the present case.
171․The offender’s counsel also drew my attention to decisions involving persistent sexual offending against children by adults. In particular, the offender’s counsel drew my attention to the decision of the Court of Appeal in R vAshton (a pseudonym) [2022] ACTCA 45, which concerned lengthy period of sexual offending involving various forms of sexual intercourse by a natural father upon his daughter [at [3] – [4]]. The offender’s counsel submitted that the offending in that case was more serious than the present offending because of Ashton’s position of authority and the fact that the offender there was an adult at the time of the offending. However, it must also be borne in mind that Ashton only involved one victim, and did not involve not the more depraved violence and torture that was inflicted upon Emily in the present case. Accordingly, although I have carefully considered the decision in Ashton, I have found the differentiating features of the offending in that case to be such that it is not an appropriate guide to the sentences to be imposed in the present case.
The prosecutor’s table
172․In her written submissions, the prosecutor included a table of the offences, which included a proposed term of imprisonment for each individual count, as well as a proposed overall minimum sentence before suspension with respect to each victim. Submissions of this nature are now permitted pursuant to s 34AA of the Sentencing Act.
173․However, there were aspects of the table which limited the assistance it provided to the Court. For example, there was no explanation provided as to precisely how the proposed overall terms for each victim had been calculated. In particular, there was no indication as to how principles of totality had been taken into account when suggesting the overall minimum terms (for example, which sentences had been accumulated, and which sentences were entirely, or largely, concurrent with the sentences to be imposed for other offences).
174․There was also no explanation provided as to precisely what had been taken into account when determining the proposed terms for each individual count. The table itself contained only a brief statement of each offence, and the ages of the victim and the offender as alleged in the indictment (cf [62] and [66] above).
175․In her written submissions, the prosecutor provided a summary of the individual offences, which was of greater assistance. However, that summary did not make reference to each matter that had been taking into account in proposing the sentence to be imposed for that count. For example, the violence that was inflicted with respect to a number of individual offences (such as counts 14–18 and counts 25–29) was not referred to in the summary of the offending, or the prosecutor’s table. As a result, it was difficult to ascertain which of the proposed individual sentences had taken the violence inflicted upon the victim into account as an aggravating factor. The usefulness of the table to the Court was to some extent hampered by this lack of transparency.
176․Importantly, when carefully considered, it was also apparent that a number of the individual sentences proposed in the prosecution table contained a number of inconsistencies. For example,
(a)[redacted]
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177․There may be explanations for these discrepancies. The difficulty, however, was that there was nothing in the prosecution’s table, or the prosecution’s sentencing submissions which clearly explained why those particular terms were proposed.
178․Prior to the enactment of Crimes (Sentencing) Amendment Bill 2024, which introduced s 34AA of the Sentencing Act, it was not permissible for a prosecutor to make submissions of the nature contained in the table attached to the prosecution’s sentencing submissions: Barbaro v The Queen [2014] HCA 2; 253 CLR 58. Section 34AA was enacted to provide greater transparency in the sentencing process, and to permit the prosecution to assist the court through a “robust articulation of why those sentences are appropriate”: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 20 March 2024, 449 (Marisa Paterson).
179․Even prior to the enactment of s 34AA, there was no impediment to an offender submitting that a court should impose a sentence of a particular form or length. However, where submissions are made on behalf of an offender concerning the proposed length of a term of imprisonment, this is usually done by way of the suggestion of a sentence range for the individual offence. The suggestion of a range, rather than a specified term, acknowledges the discretion that is inherent in the sentencing process, which remains following the enactment of s 34AA: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 20 March 2024, 449 (Marisa Paterson).
180․What is even more important, however, is the explanation of why the party, whether prosecution or the offender, submits that the suggested sentence is appropriate. The task of sentencing, particularly in a case of this nature, is difficult. The recommendation of a particular term without a detailed explanation as to why that particular sentence has been proposed is of limited assistance to the Court, and may be apt to mislead. Transparent and “robust articulation of why [the] sentence is proposed” is necessary.
181․I do not make these comments intending to be critical of the prosecutor in this case, but rather, in the hope that these observations might facilitate the giving of the assistance to the Court which was intended by the enactment of s 34AA.
Determination
182․It is hard to imagine a more difficult sentencing task than that which presently confronts the Court.
183․The lifelong devastation that the offender’s actions have caused to the victims cannot be overstated. They spent their childhoods being abused, or fearing imminent abuse, at the hands of their brother. They both suffer, and will continue to suffer, immensely from the offender’s actions. They each have PTSD, alcohol addictions, depression, anxiety, eating disorders, and have each attempted suicide on numerous occasions. The sentences to be imposed must recognise the profound harm that the offender’s actions have caused.
184․The offences themselves were of the utmost gravity. The offences were degrading. A number of the offences were accompanied by threats and derogatory insults. Whilst all sexual offences involve a degree of violence against the person of the victim, the offending in the present case, particularly with respect to Emily, involved significant additional physical violence of a depraved nature.
185․The motivation for the offending is obscure, and for that reason, deeply troubling. The offender commenced engaging in sexual conduct against his sisters when he was under the age of 14 years and before he was criminally responsible for his actions. [redacted]. The offender was exposed to unsupervised pornography when he was too young to appreciate the insidious effects of pornography upon his moral, and sexual development. The offender has ASD, which affected his capacity to interpret social cues, recognise personal boundaries and respond to complex social interactions.
186․All of these matters might explain naive sexual offending which did not involve the level of torture that the offender inflicted upon his sisters, particularly Emily. The escalation of the offending to include offences with significant physical violence distinguishes it from cases in which the sexual conduct can be explained by the immaturity of the offender; cf R v AQ [2021] ACTSC 74; DPP v Vance (a pseudonym) [2024] ACTSC 308. This is particularly so with respect to the offending against Emily. [redacted].
187․I am satisfied that, by the time he was 14 years old, the offender knew that what he was doing was wrong and that he was causing each of his sisters harm. He continued to offend against both sisters over many years despite this knowledge, and in fact escalated the violence involved, particularly against Emily. I find that by the conclusion of the offending the offender was well aware that what he was doing was gravely wrong and that the harm that he was occasioning was significant.
188․Accordingly, although I have accepted that the offender’s moral culpability has been reduced to some extent as a result of his reason of mental illnesses (particularly in relation to the earlier offending), this is not such as to significantly affect the weight that must be given to denunciation, punishment and general and specific deterrence.
189․Of more significance is the offender’s youth. Other than counts 32 and 33, each of the offences were committed by the offender before he reached his 18th birthday. The following provisions in ch 8A of the Sentencing Act must be taken into account when sentencing the offender for counts 1 - 31:
(a)Section 133C, which provides that rehabilitation and individualised justice must be prioritised for young offenders;
(b)Section 133D, which requires that when assessing the offender’s culpability, the court must also take into account the offender’s maturity, the offender’s state of development and family circumstances;
(c)Section 133G, which provides that imprisonment must be a last resort, for the shortest possible term and that the Court must consider a combination sentence.
See further R v JJ [2014] ACTCA 23 and Vance.
190․I have applied these provisions when determining the sentences to be imposed for counts 1–31. As outlined at [151] above, I have found the offender’s prospects of rehabilitation to be reasonable. This is a matter which I have given weight to.
191․These provisions do not apply to counts 32 and 33, which occurred after the offender’s 18th birthday. However, common law principles concerning the sentencing of young offenders have continued application: Sarhene vR [2022] NSWCCA 79 at [25]. Accordingly, I have given weight to the need for rehabilitation in respect of these counts also.
192․However, the youth of the offender and the need to give weight to rehabilitation cannot eclipse the need for denunciation, deterrence and recognition of the deep harm caused to both victims.
193․There is no dispute that the purposes of sentencing can only be met by a period of full-time imprisonment. I have found this to be so with respect to each individual offence. Because of the context of broader offending in which the offences occurred, even the comparatively less serious offences (such as the offences of act of indecency on a child under 16 years) can only be met by a period of full-time custody.
194․The real question is the duration of the terms of imprisonment. As outlined above, I have separately assessed the sentences to be imposed for each individual sentence, by reference to the matters stated at [135] above, and each of the purposes of sentencing and sentencing considerations set out in ss 7 and 33 of the Sentencing Act.
195․The outcome of this individualised assessment is set out in the tables extracted below.
OFFENDING AGAINST PAIGE
| Charge | Conduct | Age | Sentence |
| Count 1 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender: 14 - 15 Paige: 10 - 11 | 3 ½ years reduced to 2 years, 11 months and 14 days (following 15% discount) |
| Count 2 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender: 14 - 15 Paige: 10 - 11 | 3 years reduced to 2 years, 6 months and 14 days (following 15% discount) |
| Count 3 (act of indecency; child under 16 years) Max penalty: 10 years | [redacted] | Offender: 14 - 15 Paige: 10 - 11 | 2 years reduced to 1 year and 8 months (following 15% discount) |
| Count 4 (act of indecency; child under 16 years) Max penalty: 10 years | [redacted] | Offender 14 - 15 Paige: 10 - 11 | 1 ½ years reduced to 1 year and 3 months (following 15% discount) |
| Count 5 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender 14 - 15 Paige: 10 - 11 | 2 ½ years reduced to 2 years, 1 month and 14 days (following 15% discount) |
| Count 6 (act of indecency; child under 16 years) Max penalty: 10 years | [redacted] | Offender: 15 Paige: 11 | 3 months reduced to 2 months and 14 days (following 15% discount) |
| Count 7 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender: 15 Paige: 11 | 2 years reduced to 1 year and 8 months (following 15% discount) |
| Count 8 (act of indecency; child under 16 years Max penalty: 10 years | [redacted] | Offender: 15 Paige: 12 | 2 months reduced to 1 month and 14 days (following 15% discount) |
OFFENDING AGAINST EMILY
| Charge | Conduct | Age | Sentence |
| Cubby house incident (single incident, with a number of separate offences) | |||
| Count 9 (act of indecency; child under 10 years) Max penalty: 12 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 2 years |
| Counts 10, 11 and 12 (incest; child under 10 years) Max penalty: 20 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 6 years for each count |
| Count 13 (incest; child under 10 years) Max penalty: 20 years | [redacted] | Offender: 14 -15 Emily: 8 - 9 | 6 years |
| Metal Bedframe incident (single incident, with a number of separate offences) | |||
| Count 14 (act of indecency; child under 10 years) Max penalty: 12 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 6 months |
| Count 15 (incest; child under 10 years) Max penalty: 20 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 5 years |
| Count 16 (unlawful confinement) Max penalty: 10 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 3 years |
| Counts 17 (incest; child under 10 years) Max penalty: 20 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 7 years |
| Count 18 (incest; child under 10 years) Max penalty: 20 years | [redacted] | Offender: 14 - 15 Emily: 8 - 9 | 7 /1/2 years |
| Birthday finale (single incident, with two separate offences) | |||
| Count 19 (act of indecency; child under 10 years) Max penalty: 12 years | [redacted] | Offender: 14 - 15 Emily: 9 | 9 months reduced to 8 months (following 10% discount) |
| Count 21 (incest; child under 10 years) Max penalty: 20 years | [redacted] | Offender: 14 - 15 Emily: 9 | 3 years, reduced to 2 years and 8 months (following 10% discount) |
| Post 15th birthday (single incident) | |||
| Count 22 (act of indecency; child under 10 years) Max penalty: 12 years | [redacted] | Offender: 15 Emily: 9 | 1 year |
| Shallots incident | |||
| Count 23 (act of indecency; child under 16 years) Max penalty: 10 years | [redacted] | Offender: 15 - 17 Emily: 10 - 11 | 6 months |
| Count 24 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender: 15 - 17 Emily: 10 - 11 | 4 ½ years |
| Tied to pole incident (single incident, with a number of separate offences) | |||
| Count 25 (unlawful confinement) Max penalty: 10 years | [redacted] | Offender: 14 - 18[1] Emily: Over 10 years | 2 ½ years |
| Count 26 (sexual assault in 3rd degree) Max penalty: 12 years | [redacted] | Offender: 14 - 18 Emily: Over 10 years | 3 years |
| Counts 27 - 29 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender: 14 - 18 Emily: Over 10 years | 6 years (each count) |
| Repeated sexual activity (course of conduct) | |||
| Count 30 (incest; child under 16 years) Max penalty: 15 years | [redacted] | Offender: 14 -18[2] Emily: Over 10 years | 5 years |
| Count 31 (act of indecency; child under 16 years) Max penalty: 10 years | [redacted] | Offender: 14 -18 Emily: Over 10 years | 2 years |
| Posing in every room (single incident with two separate offences: offender an adult) | |||
| Count 32 (act of indecency; child under 16 years) Max penalty: 10 years | [redacted] | Offender: 18 Emily: 12 | 2 years |
| Count 33 (incest, child under 16 years) Max penalty: 15 years | [redacted] | Offender: 18 Emily: 12 | 5 years |
[1]As noted at [62] above, given the imprecision in Emily’s evidence concerning the timing of these offences and the principle in De Simoni, the Court must sentence the offender on the basis that this incident occurred after Emily turned 10 years old, and before the offender turned 18 years old.
[2]As noted at [66] above, the Court must sentence the offender on the basis that these incidents occurred after Emily turned 10 years old, and before the offender turned 18 years old for counts 30 and 31.
196․As can be seen from the above, the task of setting individual sentences has been complex. Whilst offending that occurred when Emily was younger attracted a higher maximum penalty reflecting her increased vulnerability, the need for denunciation and punishment increased as the offender grew older. Further, the later offending was characterised by a degree of violence and degradation which did not accompany much of the earlier offending. I have taken into account each of these matters in determining the individual terms set out above.
197․Having set out those individual sentences, it is necessary to have regard to principles of totality. This requires the effective sentence imposed on the offender to represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [70]. This is not a straightforward exercise.
198․As the Court of Appeal has held in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]:
There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences. A sentence should not be “crushing” in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length). Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count. (citations omitted)
199․In a recent article in the ACT Bar News, Mr Travis Jackson of the ACT Bar commended New South Wales legislation which provides for aggregate sentences in cases such as the present: Travis Jackson, ‘Sentencing: Can We Do it Better?’, ACT Bar Association Bulletin (online, May 2025). This legislation (s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)) frees sentencing judges:
… from the laborious and complicated task of creating a cascading or "stairway" sentencing structure when sentences for multiple offences are being imposed and partial accumulation is desired. (citing Button J in R v Rae [2013] NSWCCA 9)
200․I echo Mr Jackson’s endorsement of the NSW aggregate sentencing regime, and invite the ACT Legislature to consider enacting similar provisions in this jurisdiction.
201․Until any such legislative reform is made however, it is necessary for the Court to engage in the task of separately assessing questions of accumulation and concurrency for each individual offence.
202․There are 32 individual counts, some of which reflect ongoing courses of conduct, and others individual acts, including individual acts that form part of the same incident. In considering questions of accumulation and concurrency, I have borne these differences carefully in mind.
203․In determining the extent of accumulation, I have also taken care to ensure that the offending against each sister has been separately recognised. The overall period of imprisonment with respect to Emily will be a period of imprisonment of thirteen years and 6 months. The overall period of imprisonment with respect to Paige will be a period of imprisonment of five years, 11 months and 14 days. I have determined that there should be a period of three years’ accumulation of the offences between the two victims. The total effective sentence will be 16 and a half years’ imprisonment. The sentence will be backdated to take account of the 2 days of pre-trial custody.
204․A non-parole period may not be set for the offences that were committed before the offender turned 18: s 133G of the Sentencing Act. The difference between the non-parole period regime and the combination sentence regime for young offenders that is established by Chapter 8A of the Sentencing Act is not superficial: MT v R [2021] ACTCA 26; 17 ACTLR 22 at [90]. However, as noted at [191] above, the Court must consider a “combination sentence” (that is, a partially suspended sentence: s 29 of the Sentencing Act). A combination sentence “gives the sentencing court significantly greater flexibility and capacity to deliver individualised justice, prioritising the sentencing purpose of rehabilitation”: MT at [89].
205․There are two counts (counts 31 and 32) that were committed after the offender’s 18th birthday which could potentially attract the non-parole provisions of the Sentencing Act. However, it is not practicable to impose a non-parole period where the vast majority of the offending is subject to ch 8A of the Sentencing Act. As the offender’s counsel submitted, the imposition of a non-parole period for counts 32 and 33 would defeat the purpose of ch 8A.
206․I will order that the sentence be suspended after a period of 10 years imprisonment.
207․The sentence to be imposed – both the total effective sentence and the period to be served before suspension – is a significant sentence. I am satisfied that it gives weight to the need for rehabilitation of an offender who was a young person at the time of the commission of the majority of the offences, whilst also meeting the need for punishment, deterrence and denunciation for the grave criminal conduct committed and recognising the lifelong harm that has been occasioned to each victim, and their broader family.
Orders
208․For the above reasons, I make the following orders:
(1)The offender is convicted of act of indecency with a child under 10 (CH2022/922) (count 14) and sentenced to a period of imprisonment of six months, to commence on 2 June 2025 and expire on 1 December 2025;
(2)The offender is convicted of incest with a child under 10 (CH2022/950) (count 15) and sentenced to a period of imprisonment of five years, to commence on 2 June 2025 and expire on 1 June 2030;
(3)The offender is convicted of unlawful confinement (CH2022/948) (count 16) and sentenced to a period of imprisonment of three years, to commence on 2 June 2030 and expire on 1 June 2033;
(4)The offender is convicted of incest with a child under 10 (CH2023/949) (count 17) and sentenced to a period of imprisonment of seven years, to commence on 2 June 2025 and 1 June 2032;
(5)The offender is convicted of incest with a child under 10 (CH2023/369) (count 18) and sentenced to a period of imprisonment of 7 years and six months, to commence on 2 June 2025 and expire on 1 December 2032;
(6)The offender is convicted of act of indecency with a child under 10 (CH2022/920) (count 9) and sentenced to a period of imprisonment of two years, to commence on 2 June 2028 and expire on 1 June 2030;
(7)The offender is convicted of incest with a child under 10 (CH2022/941) (count 10) and sentenced to a period of imprisonment of six years, to commence on 2 June 2028 and expire on 1 June 2034;
(8)The offender is convicted of incest with a child under 10 (CH2022/942) (count 11) and sentenced to a period of imprisonment of six years, to commence on 2 June 2028 and expire on 1 June 2034;
(9)The offender is convicted of incest with a child under 10 (CH2022/976) (count 12) and sentenced to a period of imprisonment of six years, to commence on 2 June 2028 and expire on 1 June 2034;
(10)The offender is convicted of incest with a child under 10 (CH2022/927) (count 13) and sentenced to a period of imprisonment of six years, to commence on 2 June 2028 and expire on 1 June 2034;
(11)The offender is convicted of act of indecency with a child under 10 (CH2022/943) (count 19) and sentenced to a period of imprisonment of eight months to commence on 2 April 2034 and expire on 1 December 2034;
(12)The offender is convicted of incest with a child under 10 (CH2022/945) (count 21) and sentenced to a period of imprisonment of two years and eight months, to commence on 2 April 2032 and expire on 1 December 2034;
(13)The offender is convicted of act of indecency with a child under 10 (CH2022/947) (count 22) and sentenced to a period of imprisonment of one year, to commence on 2 December 2033 and expire on 1 December 2034;
(14)The offender is convicted of act of indecency with a child under 10 (CH2022/956) (count 23) and sentenced to a period of imprisonment of six months, to commence on 2 June 2035 and expire on 1 December 2035;
(15)The offender is convicted of incest with a child under 16 (CH2022/955) (count 24) and sentenced to a period of imprisonment of four years and six months, to commence on 2 June 2031 and expire on 1 December 2035;
(16)The offender is convicted of unlawful confinement (CH2022/951) (count 25) and sentenced to a period of imprisonment of two years and 6 months, to commence on 2 June 2034 and expire on 1 December 2036;
(17)The offender is convicted of sexual assault in the third degree (CH2022/953) (count 26) and sentenced to a period of imprisonment of three years, to commence on 2 December 2033 and expire on 1 December 2036;
(18)The offender is convicted of incest with a child under 16 (CH2022/954) (count 27) and sentenced to a period of imprisonment of six years, to commence on 2 December 2030 and expire on 1 December 2036;
(19)The offender is convicted of incest with a child under 16 (CH2022/381) (count 28) and sentenced to a period of imprisonment of six years, to commence on 2 December 2030 and expire on 1 December 2036;
(20)The offender is convicted of incest with a child under 16 (CH2022/384) (count 29) and sentenced to a period of imprisonment of six years, to commence on 2 December 2030 and expire on 1 December 2036;
(21)The offender is convicted of incest with a child under 16 (SCCAN2024/189) (count 30) and sentenced to a period of imprisonment of five years, to commence on 2 December 2032 and expire on 1 December 2037;
(22)The offender is convicted of act of indecency with a child under 16 (CH2023/605) (count 31) and sentenced to a period of imprisonment of two years, to commence on 2 December 2035 and expire on 1 December 2037;
(23)The offender is convicted of act of indecency with a child under 16 (CH2022/8200) (count 32) and sentenced to a period of imprisonment of two years, to commence on 2 December 2036 and expire on 1 December 2038;
(24)The offender is convicted of incest with a child under 16 (CH2023/8201) (count 33) and sentenced to a period of imprisonment of five years, to commence on 2 December 2033 and expire on 1 December 2038;
(25)The offender is convicted of incest with a child under 16 (CH2023/596) (count 1) and sentenced to a period of imprisonment of two years, 11 months and 14 days, to commence on 18 December 2035 and expire on 1 December 2038;
(26)The offender is convicted of incest with a child under 16 (CH2023/598) (count 2) and sentenced to a period of imprisonment of two years, six months and 14 days, to commence on 19 May 2037 and expire on 2 December 2039;
(27)The offender is convicted of act of indecency with a child under 16 (CH2023/669) (count 3) and sentenced to a period of imprisonment of one year and eight months, to commence on 1 October 2038 and expire on 31 May 2040;
(28)The offender is convicted of act of indecency with a child under 16 (CH2023/599) (count 4) and sentenced to a period of imprisonment of one year and three months to commence on 3 September 2039 and expire on 2 December 2040;
(29)The offender is convicted of incest with a child under 16 (CH2023/388) (count 5) and sentenced to a period of imprisonment of two years, one month and 14 days to commence on 18 October 2039 and expire on 1 December 2041;
(30)The offender is convicted of act of indecency with a child under 16 (CH2022/967) (count 6) and sentenced to a period of imprisonment of two months and 14 days, to commence on 18 September 2041 and expire on 1 December 2041;
(31)The offender is convicted of incest with a child under 16 (CH2022/971) (count 7) and sentenced to a period of imprisonment of one year and eight months to commence on 2 April 2040 and expire on 1 December 2041;
(32)The offender is convicted of act of indecency with a child under 16 (CH2022/986) (count 8) and sentenced to a period of imprisonment of one month and 14 days, to commence on 18 October 2041 and expire on 1 December 2041;
(33)The total effective sentence will be a period of imprisonment of 16 years and six months, commencing on 2 June 2025 and expiring on 1 December 2041.
(34)The sentence is to be suspended after 10 years, on 1 June 2035, upon entry into an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 1 December 2041.
| I certify that the preceding two hundred and eight [208] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: A McKay Date: 11 June 2025 |
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