Director of Public Prosecutions v Mitchell (No 3)

[2024] ACTSC 274

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Mitchell (No 3)
Citation:	[2024] ACTSC 274
Hearing Date:	27 August 2024
Decision Date:	29 August 2024
Before:	Mossop ACJ
Decision:	See [53]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – resentence – persistent sexual abuse of children and acts of indecency – early guilty plea – six victims – consideration of ss 56 and 92EA of Crimes Act 1900 (ACT) – maximum penalty 14 years where offending did not involve sexual intercourse – relative gravity
increased where offending has maximum penalty of 14 years
compared to offending where maximum penalty is 25 years – offending in upper-end of mid-range of objective seriousness – offender sentenced to aggregate 14 years and nine months’
imprisonment with non-parole period of 10 years
Legislation Cited:	Crimes Act 1900 (ACT), ss 56, 61(2), 66B, 92E, 92EA, 92K Crimes (Sentencing) Act 2005 (ACT), ss 34A, 47, 51(7) Criminal Code (Cth), ss 137.1, 137.1A
Cases Cited:	DPP v Mitchell [2023] ACTSC 117 R v Iacuone; R v Duffy; R v JR (No. 2) [2014] ACTSC 149; 286 FLR 217 R v Kellan (a pseudonym) [2021] ACTSC 314 R v Swift [2007] VSCA 52; 15 VR 497 R v Timbery [2008] NSWDC 340 The Queen v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273
Parties:	Director of Public Prosecutions
Stephen Leonard Mitchell (Offender)
Representation:	Counsel
V Engel SC with K McCann (DPP)
T O’Rourke (Offender)
Solicitors
Director of Public Prosecutions Aulich Criminal Law (Offender)
File Numbers:	SCC 319 of 2023 SCC 193 of 2024
MOSSOP ACJ:
Introduction
1․	On 29 November 2022, the offender, Stephen Leonard Mitchell, pleaded guilty to various
child sex offences committed against six victims between 1994 and 2008. He was
sentenced by me on 22 May 2023: DPP v Mitchell [2023] ACTSC 117. At that time, I
erroneously failed to consider the effect of the decision in The Queen v Ware (a
pseudonym) [2022] ACTCA 14; 17 ACTLR 273 and treated the maximum penalty for the
offences against s 56 of the Crimes Act 1900 (ACT) as being 25 years rather than
14 years as was required by that decision. An appeal by the offender was conceded by
the Director of Public Prosecutions and, on 18 April 2024, the sentences imposed were
set aside and the matter remitted to me for resentencing.
2․	In addition to resentencing for the six offences which were before the court on the last
occasion, there is an additional charge to which the offender has pleaded guilty, namely,
a rolled-up charge of giving false or misleading information to a Commonwealth entity in
relation to an application for, or maintenance of, an Australian Government security
clearance.
3․	Further, since the earlier hearing:

(a) on 19 December 2023, the offender was convicted, after a trial in the

Magistrates Court, of a further offence of committing an act of indecency in

relation to an adult victim in 2010;

(b)	updated and additional victim impact statements have been prepared; and
(c)	there is evidence that the offender has been classified as a minimum-security

prisoner and has engaged in counselling relating to his sex offending.

4․	There is no need, for the purposes of these reasons, to refer to any of the victims by
name and I will refer to them in these reasons in the same manner as I did in my earlier
reasons as A, B, C, D, E, and F. The victim of the 2010 offending will be referred to as G.
5․	These reasons need to be understood with my earlier reasons. Notwithstanding that,
having regard to the setting aside of my earlier orders, the sentencing exercise is a new
one, I have not found it necessary to repeat in these reasons all of those matters which
I addressed in my earlier reasons.
6․	In particular, I expressly incorporate the table illustrating the temporal relationship
between the offending against different victims and the summary of the agreed facts,
which remain as serious and confronting as they were on the earlier occasion. Similarly,
subject to the new and updated victim impact statements, my assessment of the victim impact statements prepared for the last hearing remains the same as I set out in my
earlier reasons.
7․	My assessment of the objective seriousness of the counts involving s 56 of the Crimes
Act remains applicable in the context of s 56 as a whole. However, for reasons given
later, when assessing where the offending sits within the range provided for by the
14-year maximum penalty, the objective seriousness compared to the worst category of
case must be higher because of the exclusion from the 14-year offence of cases
involving sexual intercourse.
8․	My assessment of the subjective circumstances of the offender remains applicable.
Evidence was provided that the offender is a minimum-security prisoner at the Alexander
Maconochie Centre. He has participated in one-on-one counselling in relation to his sex
offending as an alternative to participation in the ACT Corrective Services’ sex offender
treatment program. Both of these matters are not unexpected.
9․	Evidence was tendered by the Director of a pretext call with the offender undertaken by
B immediately prior to the arrest of the offender in which he makes no admissions. That
did not alter my assessment of his level of remorse. It is consistent with my earlier
assessment. Any remorse for the damage done to the victims of the offending is not
possible to disentangle from regret at the consequences of his offending for himself.
10․	My earlier assessment of comparable cases needs to be understood in light of the
reasons I give later about the scope of the offending covered by the 14-year maximum
penalty.
11․	Consistently with the approach taken in the earlier reasons at [4], I will generally refer to
the contraventions of s 56 of the Crimes Act as involving the maintenance of a sexual
relationship, rather than by reference to the language used in the current heading to the
provision, which refers to persistent child abuse.

Summary of the charges

12․ The charges are summarised in the following table.

Maximum

Charge	Victim	Period	penalty
Persistent sexual abuse of a child,	A	1 January 1994 to	14 years
contrary to s 56 of the Crimes Act 1900	31 December 1998
(ACT) (CAN 6781/2022)
Persistent sexual abuse of a child,	B	1 January 1997 to	14 years
contrary to s 56 of the Crimes Act 1900	1 January 2000
(ACT) (CAN 6782/2022)
Act of indecency in the presence of a	C	1 January 2000 to	10 years
person under 16, contrary to s 92K(2) of	1 January 2002
the Crimes Act 1900 (ACT) (CAN 1778/2022)
Persistent sexual abuse of a child,	D	1 January 2001 to	14 years
contrary to s 56 of the Crimes Act 1900	1 June 2005
(ACT) (CAN 11743/2022)
Act of indecency upon a person under 16	E	25 July 2002 to	10 years
on more than one occasion, contrary to	16 January 2004
s 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT) (CAN 11741/2022)
Acts of indecency upon a person under 16	F	1 January 2004 to	10 years
on more than one occasion, contrary to	30 June 2008
s 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT) (CAN 11742/2022)
Giving false or misleading information to a	10 March 2003,	5 years
Commonwealth entity in relation to an	6 June 2012,
application for, or maintenance of, an	24 May 2017 and
Australian Government security clearance	9 January 2019
contrary to ss 137.1 and 137.1A of the Criminal Code (Cth) (CAN 7856/2022)

Updated and additional victim impact statements

13․	Updated and additional victim impact statements were provided in addition to those
which were before the court on the previous occasion. As I have indicated earlier, I adopt
what I said in relation to the victim impact statements relied upon previously.
14․	It was clear then, and remains clear now, that the offending has had long lasting and
fundamental psychological effects upon the victims. Those long-term and continuing
psychological impacts include anxiety, lack of trust in people, perceived lack of
self-worth, intrusive recall of the events and, in some cases, attempts at suicide. They
also included insecurity about the ability to protect their own children, leading to
overprotective behaviours or a decision not to have children. The effects extended
beyond the immediate victims to their partners and children. The victims were left with a
pervasive sense of wondering how their lives would have been different had the abuse
not occurred and an inability to celebrate their achievements during the period or reflect
positively on their childhoods because of its association with the offender’s abuse. The
victim impact statements from the two mothers of victims who provided them disclose
their guilt at having allowed themselves to be cultivated by the offender and not detecting
the abuse at the time. As I indicated, it is necessary that sentences give appropriate recognition to the harm done by the offending, both in relation to who is affected and how
long those effects last.

15․ The three updated statements and two additional statements focused upon the

uncertainty and upset of the victims of the offending, which go beyond the immediate

child victims and extend to their families, at the appeal and the manner in which the

appeal was dealt with. Clearly, victims of the offending have found it more difficult to

move on with their lives given the existence of the appeal and the potential that it would

lead to a lesser sentence than the sentence that had been imposed.

16․	There were objections to some portions of the updated victim impact statements. The
objected to portions were identified in an annexure to the written submissions on behalf
of the offender. I allowed all of the portions that were objected to, except for two
paragraphs comprising four lines in total which included comments about the law firm
engaged by the offender. Those comments appeared to me to fall within the category of
“offensive” within the meaning of s 51(7) of the Crimes (Sentencing) Act 2005 (ACT), as
they contained deprecatory comments about conduct alleged against third parties to the
proceedings, the offender’s lawyers, which were not relevant to the issues before the
court. The balance of the objected to material was within the broad scope of what is
permissible in victim impact statements, having regard to their purpose of allowing some
participation by the people most affected by the offending in the sentencing process and,
hence, avoiding, to the extent possible, a technical and punctilious approach to the taking
and resolution of objections that might be adopted in the course of mainstream criminal
practice: see the comments in R v Swift [2007] VSCA 52; 15 VR 497 at [6]-[8]. I do not
consider that it is appropriate to dissect out portions of the statements based upon the
introduction of a test of remoteness of the connection between harm and the offending
arising out of the words “as a result of … the commission of the offence” in the definition
of “because of” and, hence, the definition of “victim impact statement” in s 47 of the Act.
Leaving extreme cases aside, having regard to the purposes of such statements, issues
of remoteness are best addressed as issues of weight rather than admissibility. I did not
consider it appropriate to adopt the approach to “remoteness” taken in R v Iacuone; R v
Duffy; R v JR (No. 2) [2014] ACTSC 149; 286 FLR 217 at [26]-[27], which was based on
what was said in R v Timbery [2008] NSWDC 340 at [43], without careful submissions
concerning the statutory framework in the Territory. Such submissions were not possible
in the circumstances of this sentencing hearing.
17․	Although I have had regard to the terms of the victim impact statements and taken into
account the additional distress caused by the prolongation of the proceedings, those are
not matters which should have the effect of increasing what would otherwise be the appropriate sentence upon the offender. He exercised a right, which he had, to correct
a sentencing error. It would be wrong to punish him for exercising the legal entitlement
to address an error by way of an appeal. That remains the case even if, as I point out
later in these reasons, the correction of the error does not have the effect of reducing the
sentences to be imposed.

Facts of the Commonwealth offence

18․	The facts relating to the further offending involving giving false or misleading information
for the purposes of a security clearance are agreed and are set out in a Statement of
Facts contained within the prosecution tender bundle. Those facts are lengthy, extending
over some 12 pages. I find the facts in accordance with that Statement of Facts and
summarise the key features of the facts so as to enable an understanding of the sentence
that I will impose for this offence.
19․	In 1995, the offender had been employed at the Erindale Youth Centre run by the Young
Women’s Christian Association. In October 1997, he had been written to by the manager
of the centre, warning him about inappropriate conduct between himself and A. In
November 1997, he was written to again about such conduct. Later in November, his
employment was terminated because of continued inappropriate contact with A. In
July 2002, he got a job at the Police Citizens Youth Club (PCYC), which was managed
by the Australian Federal Police (AFP). In November 2002, he applied for a security
clearance from the AFP. In March 2003, he participated in a recorded security interview.
He gave misleading answers in relation to questions about the reasons for leaving his
job at the Erindale Youth Centre. He gave misleading answers in which he failed to
disclose conduct that had occurred prior to that date with A, B, C, D, or E.
20․	He obtained a baseline security clearance with the level of Protected. This allowed him
to maintain his position as a Sports and Recreation Officer at the PCYC. That was
significant because it allowed him to be employed in a position involving children and
therefore facilitated his further offending involving F. It also allowed him to work as an
intelligence analyst at the Department of Human Services and be an Army Reserve
officer.

21․ In 2003, allegations relating to C were investigated by the AFP. Ultimately, no

prosecution was brought against him at that time. He resigned in 2005 but retained his

baseline security clearance of Protected.

22․	He committed an act of indecency against G, an adult female, in 2010. This was the
charge that was determined in the Magistrates Court in December 2023.
23․	In 2012, he applied for a Negative Vetting Level 1 (Secret) security clearance. He
provided a misleading answer in relation to his reason for departing from employment at
the PCYC. That allowed him to continue in his role at the Department of Human Services,
which included investigation of serious fraud within the organisation. He also continued
as an officer in the Army Reserve. In 2016, he obtained a job in the Attorney-General’s
Department, delivering “accredited protective security training and courses” and
managing operations at the National Security Hotline.
24․	In May 2017, he underwent further security vetting. He was asked about, and provided
misleading information in relation to, his resignation from the Erindale Youth Centre. He
provided a misleading answer to a question about the police investigation of allegations
relating to C. That allowed him to maintain positions within the Attorney-General’s
Department and, subsequently, obtain a position at the Department of Home Affairs.
25․	In 2019, the offender participated in an interview with the Australian Government Security
Vetting Agency in order to obtain a Negative Vetting Level 2 (Top Secret) security
clearance for his employment with the Department of Home Affairs. He provided a
misleading answer in relation to his termination from the Erindale Youth Centre and in
relation to the investigation of conduct in relation to C. When asked whether his sexual
behaviour could be used for blackmail, he answered no and failed to mention conduct in
relation to A, B, C, D, E, F, or G. He provided misleading answers about whether or not
he had ever been interviewed by police. When asked whether he had ever been involved
in undetected illegal or criminal activity, he failed to mention his conduct in relation to A,
B, C, D, E, F, or G. He successfully obtained the clearance and, as a result, could
continue in his job with the Department of Home Affairs and in the Army Reserve. As
part of his employment by the Commonwealth Government, he performed the role of
First Secretary (Transport) at the Australian Embassy in Jakarta between May 2021 and
February 2022.
26․	The plea of guilty to this offence was entered in the Magistrates Court on the fourth
occasion the matter was before the court. A plea of not guilty was never entered prior to
the plea of guilty. A reduction of 25 percent on account of the guilty plea is appropriate.

Objective seriousness of the Commonwealth offence

27․ The system of security vetting is a fundamental part of the operation of the

Commonwealth Government. The truthfulness of answers given in the course of vetting

is fundamental to the operation of that system. That is particularly so in relation to the

Negative Vetting regime because it is so dependent upon information provided by the subject of the vetting. The assessment of the objective seriousness of an offence against

s 137.1A of the Criminal Code (Cth) must include, at least, consideration of:

(a)	the reason for giving the false or misleading information;
(b)	the manner in which the information was false or misleading; and
(c)	the position or opportunity intended to be gained in the event that the security

clearance is obtained.

28․	So far as the first of these considerations is concerned, in the present case the reason
for giving the false or misleading information was in order to obtain or maintain a
particular job. It can be inferred that without the false or misleading information, the
offender would not have obtained or maintained his position in the Commonwealth
Government. He gained substantial financial benefits from that employment which, it may
be inferred, he would not have obtained had he not given the false or misleading
information. Additionally, in relation to the false information given in 2003, the
maintenance of the job at the PCYC was associated with access to children and, hence,
opportunities for further offending. That manifested itself in the offending against E, who
came into contact with the offender through his employment at the PCYC. The victim of
the 2010 offending, G, also had contact with the offender during his employment at the
PCYC, although her contact with him had commenced earlier and, hence, is not solely
attributable to his employment there. Having regard to his paedophilia and his previous
offending, maintenance of employment in a job providing access to children is likely to
have been a motivation going beyond merely having a job. Thus, the reasons for the
giving of false or misleading information can be seen as more serious in relation to the
2003 offending than the subsequent offending where it was simply in order to have or
maintain a job.
29․	So far as the second consideration is concerned, it is a requirement of the offence that
the information be false or misleading in a material particular: s 137.1(2). However, within
the scope of matters which are material, there are those which are more or less
significant to the granting of a security clearance. Clearly a long history of sexual
offending is a matter of great significance for security clearance purposes, increasing the
objective seriousness of the offence.
30․	So far as the third consideration is concerned, offending will be more serious if it relates
to higher level security clearances which give access to more sensitive government
information. In the present case, the offending continued up to Negative Vetting Level 2
(Top Secret), which is in the mid-range of security clearances, the higher level being security clearances involving positive vetting. However, it related to access to information
of significant governmental sensitivity.
31․	Of significance in the present case is that the charge is a rolled-up charge, incorporating
false or misleading information provided on a number of different occasions over many
years.
32․	Taking all of these matters into account, the offending is offending at the upper end of
the mid-range of objective seriousness for this offence. Having regard to the personal
circumstances of the offender, the offending is such that, having considered all other
available sentences, no sentence other than a sentence of imprisonment is appropriate.

Updated criminal history

33․	On 19 December 2023, the offender was found guilty of a further offence. This related to
conduct in 2010. It involved the commission of an act of indecency, when the offender
rubbed his erect penis against the buttocks of an adult woman, G, a long-term friend
who, as I have indicated, he met prior to his employment at the PCYC. He was
demonstrating self-defence moves to her when the offence was committed. He has not
yet been sentenced for that offence and will be sentenced in the Magistrates Court after
these proceedings are concluded.

The maximum penalty issue

34․	As pointed out at the commencement of these reasons, the sentences were set aside
and the proceedings remitted because of the failure to have regard to and apply the
decision in Ware, which was binding upon a single judge of the Supreme Court. In my
earlier decision, I had adopted the approach in R v Kellan (a pseudonym) [2021] ACTSC
314, which was disapproved in Ware. My duty was, and is, to follow the decision in Ware,
notwithstanding any views I might have about the correctness of that decision.
35․	Ware establishes that 14 years is the maximum penalty for the charges under s 56 in the
circumstances of this case and not merely a cap on a sentence governed by a maximum
penalty of 25 years. Accepting that is the correct approach, it is necessary, however, to
consider how the 14-year maximum penalty operates in the circumstances of the present
case. For that purpose, it is necessary to set out and consider the 1991 legislative
provisions. The reason that the 1991 legislative provisions are significant is that they
define the “1991 maximum penalty” for the purposes of Table 56 and s 56(12) of the
current Crimes Act. The note to subs (12) indicates that s 56 was previously s 92EA,
which was inserted into the Act with effect from 24 December 1991. In order to work out
the significance of the 14-year maximum penalty which operates as the “1991 maximum penalty” for the purposes of Table 56 of the current Act, it is necessary to consider, in
more detail, the terms of s 92EA. That section provided (emphasis added):

92EA. Maintaining a sexual relationship with a young person

(1) In this section—

“adult” means a person who has attained the age of 18 years;

“sexual act” means an act that constitutes an offence under this Part but does

not include an act referred to in subsection 92E (2) or 92K (2) if the person who committed the act establishes the matters referred to in subsection 92E (3) or 92K (3), as the case may be, that would be a defence if the person had been charged with an offence against subsection 92E (2) or 92K (2), as the case may be;

“young person” means a person who is under the age of 16 years.

(2)	A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence.
(3)	For the purposes of subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions.
(4)	In proceedings for an offence under subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred.
(5)	Subject to subsection (6), a person who is convicted of an offence under subsection (2) is liable to imprisonment for 7 years.
(6)	If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence under this Part in relation to the young person (whether or not the person has been convicted of that offence), the offence under subsection (2) is punishable
by imprisonment—
(a) if the other offence is punishable by imprisonment for less than

14 years—for 14 years; or

(b) if the other offence is punishable by imprisonment for a period of

14 years or more—for life.

(7)	Subject to subsection (8), a person may be charged in 1 indictment with an offence under subsection (2) and with another offence under this Part alleged to have been committed by the person during the course of the alleged relationship and may be convicted of and punished for any or all of the offences so charged.
(8)	Notwithstanding subsection 443 (3), where a person convicted of an offence under subsection (2) is sentenced to a term of imprisonment for that offence and a term of imprisonment for another offence under this Part committed during the course of the relationship, the court shall not direct that those sentences be cumulative.

(9) A prosecution for an offence under subsection (2) shall not be commenced except by, or with the consent of, the Director of Public Prosecutions.

36․	Of significance for present purposes are subss (5) and (6). Subsection (5) provides a
baseline maximum penalty of seven years for an offence against s 92EA. However, the
sentence is increased by subs (6) by reference to the sexual acts committed during the
course of the relationship. The general idea is that the more serious the sexual acts committed within the relationship, the more significant the maximum penalty for the
offence under the section. That is reflected in the two subparagraphs of subs (6).
37․	The maximum penalty that the parties accept is applicable in the present case is 14 years
because during the course of the relationships with each of the victims in the present
matter, the offender committed acts of indecency on them. Acts of indecency committed
against young persons were, at the time, offences against s 92K of the Crimes Act and
the maximum penalty under that section was 10 or 12 years depending upon whether
the young person was under 16 or under 10 years of age at the time of the offending.
Because the maximum penalty under s 92K was less than 14 years’ imprisonment, when
such offending occurred within a relationship caught by s 92EA, s 92EA(6)(a) applied,
as the maximum penalty under that provision was 14 years as distinct from the
seven-year default maximum penalty provided by subs (5).
38․	However, had there been sexual intercourse (in the broadly defined sense described in
s 92 of the Crimes Act) during the course of the sexual relationship caught by s 92EA,
the position would have been different. Sexual intercourse with a young person was an
offence against s 92E and punishable by imprisonment for 14 or 17 years depending
upon whether the young person was under 16 or under 10 years of age at the time of
the offending. Because the maximum penalty under s 92E was “imprisonment for a
period of 14 years or more”, s 92EA(6)(b) applied and the maximum penalty under that
provision was imprisonment for life. The operation of s 56(6) and Table 56 in the current
Act is to reduce that maximum penalty from imprisonment for life to 25 years.

39․ What is significant in the present case is that the 14-year penalty provided by

s 92EA(6)(a) was a penalty for an offence for having a relationship which, by definition,

included only acts of indecency and excluded a relationship that included sexual

intercourse. Offending relationships which included sexual intercourse were subject to a

penalty of life imprisonment.

40․	When the offender was sentenced by reference to the maximum penalty of 25 years,
when considering the objective seriousness of the offending within the range of offending
that could be covered by that provision, regard had to be had to the full range of conduct
that could be covered. That conduct included sexual relationships with children which
involved sexual intercourse. That was because the 25-year maximum was provided by
s 56, the current maximum penalty, for such relationships. It is clear that the potential for
the offence to include sexual intercourse was a matter of significance for the purposes
of my earlier reasons: see Mitchell at [79]-[81].
41․	However, if the offender is to be sentenced by reference to the 1991 maximum penalty
of 14 years, that is a penalty in which the range of offending covered was limited to
relationships which only involved acts of indecency and did not involve sexual
intercourse. That has the effect that, when assessing the objective seriousness of the
offending against the range of circumstances that can be within the scope of the
maximum penalty provided by the section, one is only comparing it against sexual
relationships which do not involve sexual intercourse in the broadly defined sense. That
has the effect of increasing the relative gravity of the offending when compared to the
maximum penalty of 14 years above the relative gravity that would be assessed if the
maximum penalty was 25 years.
42․	Consequently, assessing the offending conduct in the present case by reference to a
14-year maximum penalty may not necessarily have the effect of decreasing the
appropriate sentence. It leaves the appropriate sentence to be assessed in the particular
legislative context that I have explained.

Consideration

43․	In resentencing the offender, it is obviously necessary to apply the correct maximum
penalty of 14 years rather than 25 years in relation to the charges involving A, B, and D.
What I said in my earlier reasons at [80] as to the significance of the 25-year maximum
penalty is no longer applicable. However, the 14-year maximum penalty has to be
understood as operating in the manner that I have just described, being a maximum
penalty which necessarily excludes relationships involving sexual intercourse in the
broadly defined sense used in the 1991 legislation. That means that my earlier remark
that the “individual sexual acts which were less grave than seen in other cases” is no
longer of such significance because of the exclusion of offending involving sexual
intercourse from the 14-year offence.
44․	Regard must be had to s 34A of the Crimes (Sentencing) Act, which requires the offender
to be sentenced in accordance with sentencing practice and patterns at the time of
sentencing. The section also prohibits the court from reducing the severity of the
sentence that it would otherwise have imposed on the offender because the offender has
good character, to the extent that the offender’s good character enabled the offender to
commit the offences.
45․	What I said at [83]-[86] remains applicable:

83.      It is significant that the offending was against a number of unrelated victims over very many years. In so far as the offender was of good character otherwise, that is not a matter which leads to a reduction in his sentence because it was that good character which permitted him to obtain positions of trust through his employment or contact with the parents of the victims which enabled the offending to occur.

84.      It is, however, relevant to take into account the fact that the offender ceased offending in 2008 when he moved into jobs that did not involve direct contact with children. The cessation of his offending reflects positively on his capacity to avoid offending conduct upon release from prison.

85.      So far as the purposes of sentencing are concerned, although the offender has been diagnosed as a paedophile, the lack of offending since 2008 reduces the significance of specific deterrence and protection of the community as a sentencing factor. Rehabilitation, to the extent that it is possible, must remain a consideration. However, general deterrence, making the offender accountable, denouncing his conduct and recognition of the harm done to the victims and to the community are more important sentencing considerations in this case.

86.      In that context, the effect upon the victims of the offending must be recognised. Although the offender, post-2008, moved on with his life, the victims have been left

with decades‑long impacts. Those impacts, in turn, affect their partners, parents and

children. It is that long-term and widespread impact which has been recognised by the
legislature and requires appropriate recognition in the sentences imposed.

46․	The Director made some submissions relating to prospects of rehabilitation which may
have been directed to my comments in the above passage. The conviction for offending
in 2010 is obviously relevant to the question of rehabilitation. Further, I accept that there
is not positive evidence of an absence of offending against children in the period since
2008, simply no proven offending. It remains, however, that, so far as the evidence
discloses, there has been no offending involving children in the period since 2008. I
accept that the offender will remain as a diagnosed paedophile. However, the point that
I made in my earlier reasons is that, despite this, he may have the capacity to refrain
from further offending conduct. That is also consistent with him being substantially older
by the time of his possible release on parole. Thus, while not rehabilitated in the sense
of no longer having a sexual attraction to children, he may be able to refrain from acting
upon that interest. That was consistent with the evidence provided in Mr Sheehan’s
report which was also tendered on the last occasion.
47․	The Director placed some emphasis upon the fact that the references from a member of
the offender’s family appears to understate the significance of the offending and, hence,
reflect adversely upon the capacity of his family to be a factor reducing the potential for
further offending in the future. I do not accept that submission. While some of the
language used in the reference letter supports that submission, I do not accept the
overall submission about the significance of his family for rehabilitation. In circumstances
in which the offender will remain in custody for many years, the issue is a relatively minor
one. I consider that letter of support of some weight in describing the offender’s conduct
outside his offending and indicative of ongoing family support, which may reduce his risk of reoffending compared to a situation in which that support was absent. I do not accept
the letter as being significant evidence of remorse.
48․	Having regard to the operation of the maximum penalty regime that I have described
above, I consider that the penalties imposed on the charges relating to A, B, and D
previously remain appropriate. It is very clear that no lesser penalties are warranted.
49․	The Director submitted that, although the earlier sentences reflected a reduction in
sentence of 25 percent on account of the plea of guilty, having regard to the fact that a
plea in the Magistrates Court was not entered at the first opportunity, a sentence
reduction of only 20 percent was appropriate. I indicated in my earlier reasons at [77]
that the plea of guilty in the Magistrates Court occurred at the fourth appearance. The
true position is somewhat more complicated than that. The offender was first before the
court on 21 February 2022 facing a charge in relation to C. He entered a plea of not guilty
on that occasion and the proceedings were adjourned for three months until
23 May 2022. The proceedings were then before the court on 23 February 2022 in
relation to nonpublication orders. On 23 May 2022, the matter was adjourned, without
opposition, for another eight weeks because it was noted that “new complainants have
come forward”. A hearing on 18 July 2022 was the first occasion that charges relating to
A and B were before the court. The offender was then first before the court in relation to
D, E, and F on 29 November 2022, when he entered pleas of guilty in relation to all
charges. Whilst the usual course would be for a brief to have been prepared in response
to the plea of not guilty on the charge in relation to C, there was no specific evidence as
to whether or not that occurred in the present case. Further, the drawn out manner in
which charges relating to different complainants were foreshadowed and then brought,
made it appropriate, in the context of very serious charges, to treat the pleas of guilty
ultimately entered when all charges were laid as being early pleas warranting a
25 percent reduction in sentence and applying the same approach to the single charge
to which a plea of not guilty was originally entered and then withdrawn.
50․	Totality remains a significant consideration. As I indicated in the previous sentence, the
degree of concurrency which is appropriate is limited by the fact that each charge relates
to a separate victim who was unrelated, other than through their contact with the
offender. Notwithstanding what I said about the separate nature of the offending, there
was, in fact, a substantial degree of concurrency introduced in the previous sentence in
order to moderate what otherwise could have been a crushing sentence and in order to
achieve an overall sentence which was appropriate.

51․ In terms of sentence structure, it is necessary to include the sentence for the Commonwealth offence in a manner that avoids potential gaps in the service of the overall sentence. I will include it at the commencement of the sentences. The

Commonwealth offending was of a different nature and impacted upon the

Commonwealth as a whole rather than a particular individual. Having regard to the

distinct nature of the offending, only a moderate degree of concurrency with the other

sentences will be maintained.

Charge/Victim	Starting point	Sentence	Cumulation
Commonwealth	26 months	19 months	19 months
offence
A	78 months	58 months	55 months
B	78 months	58 months	31 months
D	72 months	54 months	30 months
C	33 months	24 months	18 months
E	24 months	18 months	12 months
F	24 months	18 months	12 months
Total Aggregate	177 months
Sentence	(14 years and
9 months)

52․	The aggregate sentence is 177 months, or 14 years and nine months. The non-parole
period is the minimum period which justice requires the offender to serve in custody. I
consider that a period of 10 years is appropriate. As the offender has been in custody
since the earlier sentence was imposed, the backdate date applied earlier remains
appropriate.

Orders

53․ The orders of the Court are as follows:

1.       On the charge of giving false or misleading information to a Commonwealth

entity in relation to an application for, or maintenance of, an Australian

Government security clearance, (CAN 7856/2022), the offender is convicted

and sentenced to imprisonment for 19 months, commencing on 16 May 2023

and ending on 15 December 2024.

2. On the charge of persistent sexual abuse of a child, contrary to s 56 of the

Crimes Act 1900 (ACT) (CAN 6781/2022), the offender is convicted and sentenced to imprisonment for four years and 10 months, commencing on

16 September 2024 and ending on 15 July 2029.

3. On the charge of persistent sexual abuse of a child, contrary to s 56 of the

Crimes Act 1900 (ACT) (CAN 6782/2022), the offender is convicted and

sentenced to imprisonment for four years and 10 months, commencing on

16 April 2027 and ending on 15 February 2032.

4. On the charge of persistent sexual abuse of a child, contrary to s 56 of the

Crimes Act 1900 (ACT) (CAN 11743/2022), the offender is convicted and

sentenced to imprisonment for four years and six months, commencing on

16 February 2030 and ending on 15 August 2034.

5.       On the charge of committing an act of indecency in the presence of a person

under 16, contrary to s 92K(2) of the Crimes Act 1900 (ACT) (CAN 1778/2022),

the offender is convicted and sentenced to imprisonment for two years

commencing on 16 February 2034 and ending on 15 February 2036.

6.       On the charge of committing an act of indecency upon a person under 16,

contrary to s 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT)

(CAN 11741/2022), the offender is convicted and sentenced to imprisonment

for 18 months, commencing on 16 August 2035 and ending on

15 February 2037.

7.       On the charge of committing an act of indecency upon a person under 16,

contrary to s 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT)

(CAN 11742/2022), the offender is convicted and sentenced to imprisonment

for 18 months, commencing on 16 August 2036 and ending on

15 February 2038.

8.       The non-parole period commences on 16 May 2023 and ends on 15 May 2033.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Mossop.

Associate:

Date: 11 October 2024