Director of Public Prosecutions v Tamayo-Del-Solar (No 2)
[2025] ACTSC 372
•22 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Tamayo-Del-Solar (No 2) |
Citation: | [2025] ACTSC 372 |
Hearing Date: | 13 August 2025 |
Decision Date: | 22 August 2025 |
Before: | McWilliam J |
Decision: | Offender convicted and sentenced to a total effective term of imprisonment for three years and three months, with a nonparole period of two years and six months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency – guilty plea after negotiations – where offender has spent considerable time in custody awaiting sentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35(3), 37(2)(a), 63, 65 Crimes Act 1900 (ACT) s 61(3) Crimes Act 1900 (ACT) (Republication No 136) s 61(2) Family Violence Legislation Amendment Act 2022 (ACT) ss 42, 43 |
Cases Cited: | Dawson v The Queen [2019] ACTCA 9 DPP v Timosevski [2024] ACTSC 205 Edwin v R [2014] ACTCA 47 GAS v R; SJK v R [2004] HCA 22; 217 CLR 198 Hili v The Queen [2010] HCA 45; 242 CLR 520 Laipato v The Queen [2020] ACTCA 35 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Anderson (No 2) [2020] ACTSC 98 R v Cashin [2016] ACTSC 351 R v CD [2017] ACTSC 261 R v Fisher (1989) 40 A Crim R 442 R v Forrest (No 2) [2017] ACTSC 83 R v H [2015] ACTSC 221 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lindsay [2020] ACTCA 25 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Nelson [2016] NSWCCA 130 R v Pretorius (No 2) [2016] ACTSC 358 R v Tamayo-Del Solar (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 March 2013) R v TL [2017] ACTCA 18 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Weir [2015] ACTSC 294 R v WR(No 4) [2015] ACTSC 211 Shannon v The Queen [2006] NSWCCA 39 Tamayo-Del-Solar v DPP [2025] ACTSC 120 Thorn v Laidlaw [2005] ACTCA 49 |
Parties: | Director of Public Prosecutions Augusto Ricardo Tamayo-Del-Solar ( Offender) |
Representation: | Counsel T Hickey (ACT DPP) J Masters ( Offender) |
| Solicitors ACT Director of Public Prosecutions InPrivate Law ( Offender) | |
File Number: | SCC 175 of 2023 SCC 176 of 2023 |
McWILLIAM J:
1․Augusto Ricardo Tamayo-Del-Solar is before the court having pleaded guilty to three charges of an act of indecency on a person under the age of 16 years, contrary to s 61(3) of the Crimes Act 1900 (ACT) (Crimes Act). One charge relates to a complainant I will refer to as “NF”, and the other two charges relate to a complainant I will refer to as “NT”. NF and NT are sisters.
2․The maximum penalty for committing an act of indecency on a person under the age of 16 years is imprisonment for 10 years.
Facts
3․The essential ingredients or elements to which the offender pleaded guilty were as follows:
(a)CAN 1072/2023: Between 6 and 9 May 2022, when the applicant and NF were alone in an elevator, the applicant rubbed NF’s breasts and drew in circles on her breasts. NF was 11 years old at the time.
(b)CAN 364/2023: Between 8 May 2022 and 1 January 2023, at NT’s home, the applicant rubbed NT’s labia and vagina on top of her clothing. NT was 10 years old at the time.
(c)CAN 365/2023: On 6 January 2023, in a medical waiting room, the applicant rubbed the buttocks of NT on top of her clothing.
4․The offender pleaded guilty on 28 March 2024. He later unsuccessfully traversed his plea: see Tamayo-Del-Solar v DPP [2025] ACTSC 120. There was no suggestion that the offender did not know the girls were under 16 years of age.
5․The facts were not expressly agreed, but nor were they contradicted. Accordingly, in this case, the facts have been proven informally, through a statement of facts which was not contradicted: GAS v R; SJK v R [2004] HCA 22; 217 CLR 198 at [30].
Charge 1 – Offending in lift at religious event
6․On about 7 May 2022, the offender attended a religious conference in Canberra. NF attended the conference with her family. The offender was known to the family and would sit with them during session breaks.
7․At one point during the conference, the offender told NF to take the lift with him. When the lift arrived, another person who had been waiting entered the lift and invited NF and the offender inside. The offender refused and said they would take the next one.
8․The offender and NF entered the next lift alone. Once inside, the offender opportunistically cornered NF. He rubbed her breasts and used his hands to draw circles on them. NF told the offender not to touch there. The offender then squeezed NF’s buttocks and rubbed them up and down. He proceeded to move closer and closer to NF and pushed his penis up against her genitalia on top of her clothing.
9․As the offender was touching NF, he told her that she was his “girlfriend now”. NF attempted to move out of the offender’s arms, but the offender was holding her tightly.
10․The lift doors then opened, and NF exited the lift. As she left, the offender told her that he would be watching her. He asked her not to tell anyone what had occurred and said, “bye lovely”.
Charge 2 – Offending at NT’s house
11․On about 6 September 2022, the offender attended NF and NT’s family home after school, while their mother was at work. The offender asked NT and NF to come outside and give him a hug, which they did. He gave them each a chocolate egg and told them not to tell their mother.
12․NF went back inside. The offender then placed his hand on NT’s labia and genitalia on top of her clothing and rubbed. NT told the offender to stop and pushed his hand away. The offender also touched NT’s chest with his other hand.
13․The offender went on to grab NT’s arm, but she escaped his grasp and ran inside.
Charge 3 – Offending at podiatry clinic
14․On 6 January 2023, the offender attended a podiatry clinic in Gungahlin for a scheduled appointment. Whilst he was sitting in the waiting room, NT and her mother arrived at the clinic for a scheduled appointment. NT and her mother sat near the offender and engaged in conversation with him.
15․The offender left the waiting room and attended his appointment. When he returned to the waiting room, NT’s mother was escorted to a consulting room for her appointment. NT’s mother asked NT whether she wanted to stay in the waiting room with the offender or come into the appointment with her. NT chose to remain in the waiting room.
16․The offender approached NT and gestured for her to hug him, which she did. The offender then hugged NT a second time, placed her on his lap and rubbed her buttocks up and down. NT then stood up, and the offender rubbed her buttocks again.
17․The offender was then prompted by a staff member to approach the counter, and he did so. NT left the waiting room and joined her mother in her appointment.
The court’s task
18․The court’s task is well-established. It is to sentence the offender in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting an offender’s rehabilitation.
19․The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].
Applicable legislation
20․These offences straddled legislative amendments made by ss 42 and 43 of the Family Violence Legislation Amendment Act 2022, which came into force on 17 August 2022. Before that date, the conduct was proscribed by s 61(2) of the Crimes Act. The section was renumbered after that date and is now s 61(3) of the Crimes Act, being the section under which the offender was charged. There are two reasons why I have mentioned the change. The first is to record that on either version of the statute, the offence remained punishable by imprisonment for 10 years. The second is because later in these reasons, there is detailed discussion of some of the cases, some of which refer to s 61(2) of the Crimes Act.
Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)
21․As I have stated in other cases but repeat here for the benefit of the particular offender involved, the requirement to consider the nature and circumstances of the offences includes consideration of the objective seriousness of the offence. A number of general principles guide that assessment. They are as follows:
(a)There is a theoretical spectrum from the least serious instance of the offence to the most serious. That spectrum takes into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
(b)In assessing the nature of the crime, the court takes an objective approach, in the sense that the court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
(c)The maximum penalty for an offence also provides a yardstick against which to assess the objective seriousness of the offences before the court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The 10-year maximum penalty here indicates that the offence itself is considered to be a serious offence. It recognises, indeed it need hardly be said, that the sexual touching of children, who are inherently vulnerable (s 33(1)(gb) of the Sentencing Act), is a very serious matter.
(d)The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].
22․It is also preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; and Laipato v The Queen [2020] ACTCA 35 at [156]. Here, I have taken into account:
(a)These were contact offences, although the type of contact that occurred was over clothing and brief.
(b)The age disparity, with the offender aged between 71 and 72 years old at the time of the offending, and the complainants aged 10 and 11: R v Nelson [2016] NSWCCA 130; and Shannon v The Queen [2006] NSWCCA 39.
(c)The offender had gained access to the two victims through befriending their mother.
(d)The conduct was opportunistic, in the sense that the offender took advantage of opportunities when he was alone with the girls. The first offence in the lift was a product of the offender creating a situation where he would be alone with the victim in a confined space.
(e)The motivation for the offending was plainly for sexual gratification. Although that matter was disputed by the offender, I am satisfied beyond reasonable doubt that there is no other reason why this offender touched these young girls where he did.
(f)The conduct occurred in places that were publicly accessible – at a conference, outdoors, a podiatrist’s surgery – and thus carried a degree of brazenness.
23․The variety of conduct that may fall within this offence extends (by way of example only) from brief conduct that does not involve touching the victim, to predatory conduct involving prolonged skin on skin contact between genitalia by a person occupying a position of trust. Here, the conduct involved is at neither of those ends of the hypothetical range. That is not to take away from the gravity of the offence itself, or from the impact felt by the two victims.
24․As between the offences and the different conduct involved, the first offence has been bundled or includes rolled-up conduct, and that affects the objective seriousness in the manner explained in R v Forrest (No 2) [2017] ACTSC 83 at [163]-[164]. The third offence in the podiatrist surgery is also of less objective seriousness than the other two.
Victim impact (s 33(1)(f) of the Sentencing Act)
25․In that regard, three victim impact statements were before the court, from NF, NT and their mother.
26․NF expressed that the offender’s actions have made her feel like she doesn’t belong anymore. She described feeling scared around other males and never feeling safe. NF noted that she used to enjoy going out and meeting new people, but that she is now less talkative and generally wants to stay home. She explained that she now has trust issues and feels that she always needs to stay with her mother. NF expressed that she hates the way the offender has made her feel: as though she doesn’t want to be alive anymore, or be around anyone, or wear clothing that shows any skin.
27․NT described how the offender’s actions made her scared and unsure about her surroundings. She noted that she is more cautious about older men, and that this affected her ability to trust people. NT expressed fear about going into crowded places and being in rooms that contain more men than women. She described that she doesn’t like anyone coming close to her personal bubble and that she now finds it hard to make new friends.
28․NF and NT’s mother articulated the impact that the offender’s actions had on their family. She spoke of the guilt and regret that she feels and reflected that she is now less trusting. She described the toll that the offending conduct has taken on her daughters. The mother also explained the hard work that the family is putting in to deal with the repercussions of the offender’s actions and expressed determination for her family to get through that process together.
29․As the prosecutor emphasised, the impact on these victims is ongoing. It is trite to talk about the innocence of youth, but for these victims, the inherent feeling of security in life, derived psychologically from safety and trust, is gone. And the guilt felt by the mother in exposing her daughters to this man is no less significant. The family now is working hard to rebuild. It is to be hoped that in time they can actively banish the thoughts of this offender and the impact he has had on them and re-empower themselves to live full and happy lives.
Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)
30․The offender pleaded guilty to these charges on 28 March 2024 following negotiations between the parties.
31․The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.
32․The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, being the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately elsewhere in these reasons, such as the seriousness of the offence and the impact of the offence on the victim.
33․Utilitarian value is a primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49].
34․There was significant utilitarian value here, in sparing the young victims from giving evidence. But the plea was not at the earliest opportunity and was the result of negotiations which were accepted to have benefited the offender. I have taken into account the impact on the victims, and this includes the further impact upon them when the plea was traversed. I consider a 15% discount is appropriate. It is acknowledged that the prosecutor argued for a lower discount in these circumstances, but this was not a last-minute plea. It occurred a month before the pre-trial evidence and the remainder of the trial was two and a half months away.
Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)
35․The offender is 74 years old, tertiary educated and is now retired, receiving an aged pension. He came from a stable, positive family background. He has had two marriages and is currently single. He is not in touch with his daughter but does have positive contact with his brother. He occasionally consumes alcohol and has no problem with illicit substances. He undertakes leisure and recreational pursuits and although he takes medication for anxiety and has a number of physical health conditions, he does not currently attend any regular mental health treatment.
36․Significantly, the offender has been previously diagnosed with paedophilia and had already completed the Adult Sex Offender Program prior to reoffending. That leads to consideration of the offender’s criminal antecedents (s 33(1)(m) of the Sentencing Act). He has previously been convicted of child sexual offences in the Territory: R v Tamayo-Del Solar (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 March 2013) (R v Tamayo-Del Solar). In Edwin v R [2014] ACTCA 47, the Court of Appeal summarised the facts of that case at [76]:
In R v Tamayo-Del Solar the accused pleaded guilty to four offences and was found guilty after a judge alone trial of a further offence. The offences were committed on two young girls aged 9 and 11 at the relevant time. The offences were of committing an act of indecency upon a person under the age of 10, committing an act of indecency upon a person under the age of 16, intentionally possessing child pornography, using a child to produce child pornography and using a carriage service to transmit communications with the intention of procuring a young person to engage in or submit to sexual activity with him. Access to the victims was obtained through a breach of trust. The trial judge found that Tamayo-Del Solar had inveigled his way into the trust of both the victims and their parents, and in so doing was afforded opportunities for unsupervised access to the victims, during which times he engaged in the relevant criminal activities.
37․On that occasion, the offender was sentenced to 12 months’ imprisonment for the similar offence. He still claims that he is fascinated with children’s conversation rather than his fascination being on a sexual level. He has demonstrated no remorse (s 33(1)(w) of the Sentencing Act), given the traversal of the plea and the consistent maintenance of the view that the offender had not pleaded guilty to the offences. Although that does not aggravate the sentence, when combined with the offender’s relevant criminal history and attitude to the current offending here, it is relevant context leading to specific deterrence carrying considerable weight here.
Current sentencing practice (s 33(1)(za) of the Sentencing Act)
38․A number of cases were discussed during the hearing. They all involve the same offence and the conduct under consideration here, described as being an offence under either s 61(2) or s 61(3) of the Crimes Act. I have taken these cases into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].
39․In R v TL [2017] ACTCA 18, the relevant considerations were discussed by the Court of Appeal, and I have had regard to those. The age gap between the offender (aged 19 to 20) and the victim (between 11 and 12 years old) was considerably less than that here, although the conduct, involving multiple counts, was of a greater degree of objective seriousness. Among other things, it involved the offender taking the victim into the bathroom, putting a wooden plank across the door so that it could not be opened from outside and picking up the victim in a way that allowed him to rub his erect penis against her vagina though clothing. In another incident, when the offender and the victim were in a swimming pool, the offender moved the victim’s swimming costume to one side and rubbed her vagina. He then took his erect penis out of his own swimming trunks and rubbed it against the victim’s vagina. The Court of Appeal found that the sentences of imprisonment (six months reduced from seven months, and nine months) among others, were not so lenient as to warrant the intervention of the Court.
40․A case of closer factual comparison appears to be R v H [2015] ACTSC 221, where among other offences, the offender in that case pleaded guilty to two acts of indecency involving the touching of genitalia outside clothing and the grabbing of the victim’s breast. He was between 35 and 40 at the time and the victim was 14-15 years old. The offender had no significant criminal history and was considered a low risk of sexual reoffending. Following a 25% discount, the offender was sentenced to nine months’ imprisonment and four months’ imprisonment.
41․In DPP v Timosevski [2024] ACTSC 205, an offender who was 21 at the time of offending was sentenced to a term of imprisonment of six months and 12 days following a discount of 20% for conduct involving touching the 13-year-old victim’s breasts beneath her dress in a confined space (a car).
42․In R v Anderson (No 2) [2020] ACTSC 98, the offender was in his early fifties at the time of offending. The victim was between 10 and 12 at the time of the offending. The acts of indecency involved touching the victim’s genitalia, through clothes and with the touching being relatively brief. The court found that the conduct involved a gross breach of trust which had been placed in the offender by the victim’s mother. Having regard to the scope of conduct falling within s 61(2) (being the applicable section at the time), such conduct was assessed as being at the lower end of objective seriousness for the offence. Unlike the offender in this case, Anderson involved an offender with a severely disadvantaged upbringing and a number of psychological conditions which were taken into account on sentence. He had been found guilty after a jury trial and accordingly, no discount was applicable. He had no relevant criminal antecedents prior to the offending, although after the offending there were similar offences for which he was convicted. Again, this is different from the current offender’s prior relevant history. A sentence of six months’ imprisonment was imposed for each of the offences but the subjective features I have described mean that this sentence is not comparable.
43․The prosecution relied on R v CD [2017] ACTSC 261 (CD); R v Cashin [2016] ACTSC 351 (Cashin); R v Pretorius (No 2) [2016] ACTSC 358 (Pretorius); and R v WR(No 4) [2015] ACTSC 211 (WR) all of which involve considerably higher sentences of imprisonment. The prosecution also drew attention to R v Weir [2015] ACTSC 294 but I did not find that case of assistance in terms of comparability.
44․In CD, the offender was 31 years old and touched the genitalia (there was no suggestion that this was through clothes) of an 11-year-old girl when she was asleep in her bed. The offender was the partner of the girl’s mother at the time, and the court cited R v DK [2016] ACTCA 7 at [56] as to the significance of that factor when an offence is committed by a person who also lives in the house. The offence also occurred in breach of a good behaviour order. The court found the offending was at the more serious end of the spectrum of offending. A sentence of 20 months was imposed (reduced from 24 months on account of the guilty plea) and this was suspended after 10 months.
45․In Cashin, the offender was between 58 and 60 and the victim was a young girl aged between 11 and 13. The offender was a husband of the victim’s godmother, who was in turn a close personal friend and business partner of the victim’s (foster) mother. The evidence established that the offender became a trusted family friend and was left alone with the victim as a result. The offender was found guilty after a jury trial of a number of offences. They included two acts of indecency. In the first, the offender touched the victim’s breasts when she went to have a shower (it was assumed for the purpose of sentencing that this was over clothes). In the second, the offender placed his hand between the victim’s legs twice and squeezed her bottom. The court sentenced the offender (relevantly) to two years for the first incident and two years and six months for the second. In respect of a total term of imprisonment for those two offences of two years and nine months, the court imposed a non-parole period of one year and three months.
46․In Pretorius, the offender was found guilty of one act of indecency (kissing) and pleaded guilty to a further act of indecency (putting his hand under the victim’s shirt, squeezing both her breasts and tweaking her left nipple). He was in his fifties at the time of the offending and the victim was around 12 years old. For the first offence, he was sentenced to 12 months’ imprisonment. For the second, he was sentenced to 13 months’ imprisonment, reduced from 15 months on account of the guilty plea. The sentence was fully suspended, with 160 hours of community service imposed.
47․WR involved five offences of an act of indecency on a child under the age of 16 years (and one other offence). The offender was around 40 years old at the time of the offending. The victim was aged between 10 and 11 years. The offender was her stepfather. Two instances of relevant conduct involved:
(a)The offender asking the victim to sit on his lap. He then placed his hands on her hips and thighs and started to move himself around on her. His genital area was touching her bottom and vaginal area. The victim felt scared and uncomfortable, and got off the offender’s lap and went away.
(b)The offender was left alone in the house with the victim watching television. The offender had his arm around the victim and began to rub her bottom with his left hand underneath her pyjamas. She felt uncomfortable and frightened. The conduct stopped and she got up and went away.
48․The offender was found guilty after a jury trial, had no relevant prior criminal history and did not take responsibility or demonstrate remorse for the offending. Each of those two offences was assessed as falling in the lower range of objective seriousness. A sentence of imprisonment of nine months was imposed for each offence. It appears to have been a feature of the sentencing that the offences were committed in the 1990s, where the sentencing patterns at the time of the offending were more lenient.
Pre-sentence custody
49․The offender was arrested on 27 January 2023 and has been in custody since that date. Up to the date of sentence, he has spent 939 days (2 years, 6 months and 27 days) in custody in relation to the charges. This will be taken into account by way of backdating the sentence: s 63 of the Sentencing Act.
Totality
50․The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). Here, there were three separate time periods and two different victims. Applying those principles, the majority of each sentence will be cumulative. Any degree of concurrency is a product of the court stepping back and viewing the conduct in its entirety, recalling that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].
Conclusion
51․For these types of offences, general deterrence features strongly. These victims are vulnerable. They need protection. The case of R v Fisher (1989) 40 A Crim R 442 (Fisher) is cited often (including by Refshauge J in R v Tamayo-Del Solar), where it was stated at 445:
This court has said time and time again that sexual assault upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to jail for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations.
....
This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual assaults by adults ...
52․Having regard to the importance of general and specific deterrence (discussed above), appropriate denunciation in accordance with Fisher and in recognition of the impact upon the victims, I consider that no sentence other than a term of imprisonment for each of the offences is appropriate.
53․The offender’s history and attitude to the offences warrants a sentence of increased severity to give proper effect to the requirement for specific deterrence. Even then, the prospects of this offender rehabilitating are guarded at best. This offender has no insight into the fact that he has a disease. It is causing him to lie to himself about what is really going on, as seen through his delusional view that he is attracted to the conversation of children rather than his attraction being on a sexual level. It leads to a concern about how he will control any future urge he has to touch children, without him actively managing his condition.
54․However, the fact that the offender has already spent such a lengthy period incarcerated, referable entirely to this proceeding, also weighs heavily in the exercise of the court’s discretion here. Here, the length of the sentence to be imposed denounces the conduct and recognises harm to the victims (without placing a value on that harm as discussed above). The lengthy period of full-time custody means that deterrence objectives have also largely been achieved. The prior custody operates as a greater constraint when crafting a sentence that aims to accommodate all the different sentencing objectives. In working out the manner in which the remainder of the sentence is to be served, I have given consideration to protection of the community.
55․Similarly, this is a case where it is of very little utility to set a non-parole period, given that almost the majority of the sentence has been served already. However, s 65 applies. The relevant parts of that section provide:
64Nonparole periods—court to set
(1)This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.
(2)The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.
Note If the offender is released on parole, …
(3)When the court sets the nonparole period, the court must state when the nonparole period starts and ends.
Note A sentence may be backdated to account for time already held in custody (see s 63).
(4)However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender's antecedents.
…
56․The sentences that will be imposed amount to a term of imprisonment that is a total of more than a year. The court’s discretion under s 65(4) not to impose a nonparole period is conditioned upon the court having regard to the nature of the offences and the offender’s antecedents. The prosecution argued that the preferable solution would be to protect the community for as long as possible by setting a nonparole period that constituted 80% of the head sentence. In light of the length of sentence imposed, this argument falls away, because even with a longer nonparole period than that commonly set, that time has already been served, meaning that there is no additional protection afforded to the community.
57․In any event, the reality is that this offender will return to the community, and I was not satisfied that it was appropriate to exercise the discretion under s 64(4). It is my firm view that supported transition, potentially through conditions and supervision, is far preferable to someone serving their sentence for many years and then being let back into the community with no supports at all. I fail to see how that would be in the community’s protective interest. There remains benefit in allowing the Sentence Administration Board flexibility to either require the completion of targeted programmes of intervention, or otherwise to maintain some sort of control or supervision over the offender in the community for a reasonable period of time, even if only to oversee the offender’s transition back into the community. The nonparole period was set with that objective in mind.
Orders
58․The orders of the Court are:
(1)For CAN 1072/2023, being the first act of indecency on a person under the age of 16 years, contrary to s 61(3) of the Crimes Act 1900 (ACT) (Crimes Act), the offender is convicted and sentenced to a term of imprisonment of one year, two months and 13 days, reduced from one year and five months on account of his guilty plea, backdated to commence on 27 January 2023 and conclude on 8 April 2024.
(2)For CAN 364/2023, being the second act of indecency on a person under the age of 16 years, contrary to s 61(3) of the Crimes Act, the offender is convicted and sentenced to a term of imprisonment of one year, two months and 13 days, reduced from one year and five months on account of his guilty plea, backdated to commence on 1 April 2024 and conclude on 13 June 2025.
(3)For CAN 365/2023, being the third act of indecency on a person under the age of 16 years, contrary to s 61(3) of the Crimes Act, the offender is convicted and sentenced to a term of imprisonment of 11 months and 28 days, reduced from 14 months and one day on account of his guilty plea, backdated to commence on 30 April 2025 and conclude on 26 April 2026.
(4)The total length of the sentence imposed is three years and three months.
(5)A non-parole period of two years and six months is set, which commenced on 27 January 2023 and concluded on 26 July 2025.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: |
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