Director of Public Prosecutions v Tony Bravo (a pseudonym)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Tony Bravo (a pseudonym)
Citation:	[2024] ACTSC 221
Hearing Date:	7 February 2024, 17 May 2024
Further Submissions Received:	6 June 2024, 14 June 2024, 8 July 2024, 24 July 2024
Decision Date:	26 July 2024
Before:	Loukas-Karlsson J
Catchwords:		CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – profound family tragedy – sexual offending against siblings and cousin – offender a young person for some offending – Bugmy and Verdins principles engaged – significant weight attributed to remorse – prospects of rehabilitation somewhat better than only guarded – offender sentenced to imprisonment
Decision:	(1) In relation to offences committed when the offender was a young person: (a) For the offence of attempted sexual intercourse with a person under 16 years (CH2023/912), the offender is convicted and sentenced to 11 months and 7 days’ imprisonment commencing 20 July 2022 and expiring on 26 June 2023. (b) For the offence of sexual intercourse with a person under 16 years (CH2023/334), the offender is convicted and sentenced to 9 months’ imprisonment commencing on 19 February 2023 and expiring 18 November 2023. (c) For the offence of making available pornographic material to a young person (CH2023/337), the offender is convicted and sentenced to 3 months’ imprisonment commencing on 19 October 2023 and expiring on 18 January 2024. (d) For the offence of act of indecency on a person under 16 years (CH2023/336), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 19 October 2023 and expiring on 18 April 2024. (e) For the offence of act of indecency on a person under 16 years (CH2023/332), the offender is convicted and sentenced to 21 days’ imprisonment commencing on 29 March 2024 and expiring on 18 April 2024. (f) For the offence of act of indecency on a person under 16 years (CH2022/868), the offender is convicted and sentenced to 3 months’ imprisonment commencing on 19 January 2024 and expiring on 18 April 2024. (2) In relation to offences committed when the offender was an adult: (a) For the offence of incest with a person under 16 years of age (CC2022/7010), the offender is convicted and sentenced to 1 year and 6 months’ imprisonment commencing on 20 July 2023 and expiring on 19 January 2025. (b) For the offence incest with a person under 16 years of age (CC2022/7011), the offender is convicted and sentenced to 1 year 10 months and 15 days’ imprisonment commencing on 19 September 2024 and expiring on 2 August 2026. (c) For the offence of supply of cannabis to a child (CC2022/7006), the offender is convicted and sentenced to 9 months’ imprisonment commencing on 3 May 2026 and expiring on 2 February 2027. (d) For the offence of using child 12 years or older for the production of child exploitation material (CC2023/6542), the offender is convicted and sentenced to 10 months and 15 days’ imprisonment commencing on 3 October 2026 and expiring on 17 August 2027. (e) For the offence of making available pornographic material to a young person (CC2023/2005), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 18 May 2027 and expiring on 17 November 2027. (f) For the offence of act of indecency on a person under 16 years (CC2022/7924), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 18 September 2027 and expiring on 17 March 2028. (g) For the offence of act of indecency in the presence of a person under 16 years (CC2022/7009), the offender is convicted and sentenced to 9 months’ imprisonment commencing on 18 January 2028 and expiring on 17 October 2028. (h) For the offence of unauthorised access to restricted data (CC2023/8896), the offender is convicted and sentenced to 6 months’ imprisonment commencing from 20 July 2028 and expiring on 19 January 2029. (i) I impose a non-parole period in relation to these adult offences of 2 years 3 months, commencing on 20 July 2023 and expiring on 19 October 2025.
Legislation Cited:	Children and Young People Act 2008 (ACT) s 94 Court Procedures Act 2004 (ACT) s 72 Crimes Act 1900 (ACT) ss 55(2), 61(2), 62(2), 64(3), 66(2), 66(3), 66B, 92E(2), 92K(2) Crimes Act 1900 (NSW) ss 61D(1), 61E(1), 66C, 66D Crimes Act 1958 (Vic) s 44(4) Crimes (Sentencing Act) 2005 (ACT) ss 6, 7, 10, 33, 33(1)(j), 34A, 34B, 64(1)(a), 64(2)(f), 65(2), 133C, 133D, 133D(1)(a), 133G, ch 8A Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2) Criminal Code 2002 (ACT) ss 44, 420, 625(4)(a) Family Violence Act 2016 (ACT) Preamble paras 1(a)-(d) Human Rights Act 2004 (ACT) s 22(3)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Corby v The Queen [2010] NSWCCA 146 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106 DPP (Vic) v Pagani (a pseudonym) [2022] VCC 2013 DPP v Druett [2024] ACTSC 56; 106 MVR 186 DPP v Kenyon [2023] ACTSC 365 DPP v Matas [2024] ACTSC 234 DPP v Muell [2024] ACTSC 184 DPP v Myers (a pseudonym) [2023] ACTSC 142 DPP v van de Zandt (No 3) [2023] ACTSC 359 Dawson v The Queen [2019] ACTCA 9 Forster-Jones v The Queen [2020] ACTCA 31 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Jackson v The King [2023] NSWCCA 121 KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Aitchison (No 3) [2018] ACTSC 214 R v BI (No 4) [2017] ACTSC 71 R v BM (Supreme Court (ACT), Refshauge J, 29 October 2012, unrep) R v BS-X [2021] ACTSC 160; 16 ACTLR 238 R v CC [2016] ACTSC 43 R v CV (Supreme Court (ACT), Nield AJ, 5 September 2012, unrep) R v Carberry; Carberry v The King [2023] ACTCA 32 R v Dupuy [2008] VSCA 63 R v EO [2017] ACTSC 138 R v Engert (1995) 84 A Crim R 67 R v Hammer [2019] ACTSC 182 R v Irwin [2019] NSWCCA 133 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v March [2023] ACTSC 28 R v Smith (No 2) [2022] ACTSC 246 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 R v WEF [1998] 2 VR 385 R v WR (No 4) [2015] ACTSC 211 R v WS [2021] NSWDC 135 R v XT [2016] ACTSC 335 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Young (a pseudonym) [2021] NSWDC 702 Shannon v The Queen [2006] NSWCCA 39 Taylor v The Queen [2014] ACTCA 9 Veen v The Queen (No 2) (1988) 164 CLR 465 Young (a pseudonym) v The Queen [2022] NSWCCA 111 Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223
Parties:	Director of Public Prosecutions Tony Bravo (a pseudonym) ( Offender)
Representation:	Counsel D Swan ( DPP) K Musgrove ( Offender)
Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender)
File Numbers:	SCC 227 of 2023 SCC 228 of 2023

LOUKAS-KARLSSON J:

Introduction

1․This case involves sentencing for criminal offences involving incest. It is appropriate for the court to issue a caution at the outset of this judgment that it is inevitably disturbing reading. This case is a profound family tragedy. It is a depressing example of the fact that damaged human beings damage other human beings, through the commission of appalling criminal offences. Dry legal words are not adequate to express the depth of this unimaginable family tragedy.
2․On 11 September 2023, Mr Tony Bravo (a pseudonym) (the offender) pleaded guilty to the following charges:
(a)Four counts (CH2023/332, CC2022/7924, CH2022/868, CH2023/336) of act of indecency on a person under 16 years and one count (CC2022/7009) of act of indecency in the presence of a person under 16 years, both contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act), as the section was at the time of the offending. This offending occurred between on 1 January 2015 – 31 December 2015 (CH2022/868), 12 September 2016 – 1 December 2016 (CH2023/332), 1 January 2014 – 13 June 2017 (CH2023/336), and 1 January 2021 – 31 March 2021 (CC2022/7924 and CC2022/7009) respectively. The maximum penalty for this offence is 10 years’ imprisonment.
(b)Two counts (CC2023/2005 and CH2023/337) of making available pornographic material to a young person, contrary to s 66(3) of the Crimes Act. This offending occurred between 1 January 2021 – 31 March 2021 (CC2022/2005) and 1 January 2014 – 13 June 2017 (CH2023/337). The maximum penalty for this offence is 700 penalty units, 7 years’ imprisonment, or both.
(c)Two counts (CC2022/7010 and CC2022/7011) of incest with a person under 16 years of age, contrary to s 62(2) of the Crimes Act. This offending occurred between 1 January 2021 – 31 March 2021. The maximum penalty for this offence is 15 years’ imprisonment.
(d)One count (CH2023/334) of sexual intercourse with a person under 16 years of age, contrary to s 55(2) of the Crimes Act, as the section was at the time of offending. This offending occurred between 1 January 2015 – 31 December 2015. The maximum penalty for this offence is 14 years’ imprisonment.
(e)One count (CH2023/912) of attempted sexual intercourse with a person under 16 years of age, contrary to s 55(2) of the Crimes Act, as the section was at the time of the offending, by virtue of s 44 of Criminal Code 2002 (ACT) (Criminal Code). This offending occurred between 1 January 2015 – 31 December 2015. The maximum penalty for this offence at the time of the offending is 14 years’ imprisonment.
(f)One count (CC2023/6542) of using a child 12 years or older for the production of child exploitation material, contrary to s 64(3) of the Crimes Act. This offending occurred sometime between 1 January 2021 – 31 March 2021. The maximum penalty for this offence is 1000 penalty units, 10 years’ imprisonment, or both.
(g)One count (CC2022/7006) of supply of cannabis to a child, contrary to s 625(4)(a) of the Criminal Code. This offending occurred sometime between 12 October 2018 – 20 July 2022. The maximum penalty for this offence is 500 penalty units, 5 years’ imprisonment, or both.

3․The offender is also to be sentenced for the following transfer charge:
(a)One count (CC2023/8896) of unauthorised access to restricted data, contrary to s 420 of the Criminal Code. This offending occurred sometime between 1 January 2021 – 31 March 2021. The maximum penalty for this offence is 200 penalty units, 2 years’ imprisonment, or both.

4․The offences for which Mr Bravo pleaded guilty were variously committed against three victims, two of the victims were young persons at the time of the offending. All three victims were related in some way to Mr Bravo. I will refer to the victims as “Young Victim 1 (YV1)”, “Young Victim 2 (YV2)” and “Victim 3”. Self-evidently, no disrespect is intended. Nevertheless, this approach is essential for the privacy of the victims and for clarity in this judgment.
5․Further, the offender was also a young person when he committed some of the offences. In particular, the offender was a young offender when he committed the act of indecency subject to CH2023/332 against YV1, and the entirety of the offending against YV2. It is not in contention that the offender therefore must be sentenced as a young offender in relation to these offences.
6․In accordance with s 72 of the Court Procedures Act 2004 (ACT), I ordered that the court be closed to the public during the sentence hearings. The fact that the offender was a young offender for these offences also has implications as to the applicable sentencing considerations for the offending, which I will discuss below at [225]-[235].

Agreed facts

7․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the prosecution tender bundle. It is convenient to divide the outline of facts based on individual victims. Understandably, the victims in this case could not particularise the exact dates on which the charged offending for which I must sentence occurred.
8․The agreed facts may be summarised as follows.

YV1 – Incident 1 and Incident 2

9․The offender has 4 siblings. YV1 is the younger maternal half-sister of the offender. YV1 is approximately 7 years and 9 months younger than the offender. YV1 lived together with their mother during the period covered by the offending behaviour. The difference between the offender’s and YV1’s age is approximately 7 years and 9 months.
10․YV1 recalled in general terms that she had been sexually abused by the offender for a long time, and has memories of specific incidents occurring throughout the course of her childhood.

Incident 1: Between 12 September 2016 – 1 December 2016

11․During this period, the offender and YV1 lived together with their mother. YV1 was 10 years old at this time, and the offender was 17 and therefore a young person according to the law as discussed earlier at [5].
12․YV1 was sitting with the offender in the family home. The offender was playing with a gaming console in the offender’s bedroom. YV1 requested a turn and begun playing the console.
13․As YV1 was playing with the console, the offender said to YV1 “Can you show your boobs?”. YV1 asked why she should have to do that, to which the offender responded, “[W]ell, if you want to play my games, you’ve got to show me something.” At the time, YV1 was wearing a pyjama top and no bra underneath. YV1 did not expose her chest to the offender, and said “no” multiple times.
14․YV1 remained in the room and continued to play with the console. As YV1 did so, the offender sat next to her, pulled back the top of YV1’s pyjama top and looked down at her chest before looking back smiling at YV1. This is count CH2023/332, act of indecency on a person under 16 years.
15․Shortly afterwards, another sibling came running to the room to inform them that dinner was ready. YV1 recalled seeing that the room door was locked when the offender approached and opened the door.

Incident 2: Between 1 January 2021 – 31 March 2021

16․During this period, the offender was living with his grandmother. The offender was 22 years old. He had a bedroom in the house, but also used a modified shed in the backyard for recreational purposes such as smoking and playing computer games.
17․YV1 stayed for two nights in the grandmother’s house during the period of 1 January 2021 – 31 March 2021. YV1 was 14 years old at the time. On the first night, YV1 slept on the couch in the lounge room. During the night, YV1 awoke to find the offender lifting the blanket covering her and holding his mobile phone in the other hand. YV1 asked the offender what he was doing, and the offender walked out of the room.
18․On the second day, the offender and YV1 spent an “extended time” in the modified shed. While in the shed, YV1 and the offender consumed cannabis. This caused YV1 to feel intoxicated or “stoned”. YV1 recalled that the cannabis was not mixed with tobacco and consumed via a “bong”. This is count CC2022/7006, supplying cannabis to a child.
19․While consuming cannabis with YV1, the offender disclosed to her his sexual interest in his various family members. This included the offender’s mother and his older sister. The offender then disclosed that he had intimate photographs of various members of the family, secreted on a mobile phone app designed to look like a calculator. The offender told YV1 that he had “hacked” into his family members’ phone to obtain the material.
20․YV1 then observed the offender produce explicit intimate photos and videos. This included a video captured of YV1 showering in the grandmother’s house. YV1 observed that her entire body could be seen in the footage as she showered, including her breasts and genitals. YV1 believed that the footage must have been captured sometime in the preceding days. The footage was captured without YV1’s knowledge or consent. This is count CC2023/6542, using a child 12 years or older for production of child exploitation material. YV1 asked the offender to delete this video. The offender agreed, but YV1 did not observe if he did so. I note again that YV1 was 14 years old at the time.
21․The offender then showed YV1 a graphic video of her sister, Victim 3, performing a sexual act. This video had been filmed by Victim 3 and saved on her mobile phone, accessed by the offender without her knowledge or consent. The showing of this video is count CC2023/2005, making available pornographic material to a young person.
22․YV1 then noticed that while the offender was looking at her, the offender was touching his genitals. The offender then asked YV1 whether she would like to look at his penis. YV1 responded “[N]o, you’re my brother”. The offender persisted, saying that he wanted YV1 to tell him if his penis was “a good size”. The offender also then asked YV1 for advice as to what he should do with a girl he was interested in.
23․The offender and YV1 continued to consume cannabis. Again, the offender asked YV1 if he could show her his penis. After YV1 told him no again, the offender then exposed his penis to her. YV 1 responded “I don’t really want to see that. I don’t want to do anything like that”. The offender then asked “[W]ould you ever like to do anything with me?”. YV1 said to the offender, “no way”, and that the only way she would ever do something like that was if she was paid for having sex with someone. The offender then said he could pay, and would pay YV1 $500.00. YV1 said no, noting that “[I]f someone wants that, they’ve got to pay more because I’m not giving it away.”
24․The offender then offered $750.00. YV1 then said that would be ok, and the offender then said “[C]an we at least do it more than once?”. Shortly afterwards, YV1 removed her top and bra, and the offender came over towards her and touched her breasts. This is Count CC2022/7924, act of indecency on a person under 16 years.
25․At the suggestion of the offender, YV1 and the offender returned to the house. YV1 had a shower, changed to her pyjamas, and went to the offender’s bedroom to sleep. YV1 fell asleep as the offender was playing computer games.
26․At some time in the night, YV1 was awakened by grunting, groaning and slapping noises. YV1 turned over to see the offender’s exposed penis and that the offender was masturbating. YV1 then asked the offender what he was doing, to which he said “[O]h my god… I’m so sorry, I didn’t realise you were still awake” and “I didn’t mean for you to see that”. After YV1 observed his penis, the offender pulled a blanket towards him and covered himself. YV1 rolled back over and tried to go back to sleep. However, YV1 was again able to hear the offender recommencing masturbating after approximately 5 minutes. YV1 turned and again was able to observe the offender masturbating with his penis exposed. This is count CC2022/7009, act of indecency in presence of a person under 16 years.
27․The offender then asked YV1 “[C]an we please do it?”. YV1 refused, saying “[N]o, I don’t want to do like right now”. The continued to plead for them to “do it”, saying “please, please”. After some time, YV1 said “okay”. YV1 then laid on her back, with the offender removing her pants and underpants and throwing the articles of clothing on the floor. The offender then performed cunnilingus on YV1 and penetrated YV1’s vagina with his fingers while holding her legs open. These acts continued until YV1 pushed the offender away. The offender then asked “[W]hat’s wrong?” and YV1 told him to “stop, just stop”. Despite this, the offender then re-positioned himself above YV1 and recommenced engaging in cunnilingus. This is count CC2022/7010, incest with a person under 16 years of age.

28․The offender then pulled his pants down, got on top of YV1 and inserted his penis into YV1’s vagina. The offender moved his penis back and forth for approximately one minute before YV1 pushed him off her and said “stop”. The offender said, “[W]hat’s wrong?” and YV1 said “I’m done”, retrieving her pants and redressed herself. This act constituted count CC2022/7011, incest with a person under 16 years of age.
29․YV1 rolled over and pretended to sleep. The offender moved back to where he had been lying earlier and resumed playing computer games for some time before failing asleep. YV1 went to her grandmother’s room and got into her bed. She could not go to sleep.

Sexual Acts against YV1

30․The agreed facts also noted that prior to the offender turning 14 years of age, the offender committed several sexual acts against YV1. It was not an uncommon practice within the offender’s family for the younger children to shower with their elder siblings. The sexual acts committed against YV1 included an incident when YV1 was between 5-7 years and the offender 12-14 years. The offender made admissions that he:
(a)touched YV1 indecently,
(b)performed cunnilingus upon YV1, and
(c)attempted to penetrate her vagina with his penis before ejaculating onto her body whilst YV1 was in the bath.

31․In admissions to the police, the offender also noted that YV1 disclosed the incident in the bathroom to her friends while they were having a sleepover. The offender noted that his mother spoke to him about it and was supportive of him as long as “it never happens again”.
32․The uncharged acts also included an incident when YV1 was sharing a bath with the offender and the younger brother, and a further occasion when YV1 and the offender was sharing a bath with YV2. The younger brother would have been between 3-6 years old. The offender touched YV1 and either YV2 or the younger brother in each other’s presence. YV2 would have been 7-9 years old. In the offender’s admissions to the police, the offender noted that he did not recall touching YV1 and his younger brother in each other’s presence but noted that if they were all bathing together there were “possibly some questions” and that it was “possible, …, like everything else that’s happening during the time period and what I have forgotten”.
33․I note that, separately, the offender also admitted to the police to getting the younger brother to touch his penis when the offender was aged 13-14 years old to “see what would happen” and noted that he was “trying to get” the younger brother to help him figure out “what felt nice”. The offender also noted that he bathed with his younger brother, where both had erections and would also touch each other’s penis.
34․YV1 also recalled a further incident when the offender laid on her on a trampoline kept in the backyard of their family home when YV1 was 6 years old. As the offender did so, the offender pressed YV1 buttocks while they remained clothed and lying on the trampoline.
35․The prosecution conceded that the presumption of doli incapax is not displaced on the evidence with respect to this offending. In that regard, it is appropriate to refer to sexual acts rather than uncharged acts. These sexual acts with respect to YV1 are relied upon only as sentencing context and as informing the subjective circumstances of the offender, in reference to the evidence of Professor Boer.

YV2 – Incident 1 and Incident 2

36․YV2 is the offender’s younger male cousin. The difference in age between the offender and YV2 is approximately 3 years and 6 months.

Incident 1: Between 1 January 2015 – 31 December 2015

37․During this period, YV2 was aged between 12 and 13 years of age, and the offender aged 16 and 17 years of age.
38․YV2 and the offender were in the offender’s bedroom playing with a gaming console when they commenced having a discussion about sex. The offender then initiated talking about a game of “truth or dare”. The offender then asked YV2 to touch the offender’s penis, saying that it would be “fun”. YV2 felt uncomfortable and did not wish to participate. However, the offender asked YV2 to participate, stating words to the effect of “[I]f you don’t like it we can stop”.
39․YV2 reluctantly agreed and touched the offender’s penis underneath his underwear. The offender was lying down on his bed and YV2 was seated beside him. The offender’s penis was semi-erect as YV2 continued to touch it. When YV2 said words to the effect of “I don’t know”, the offender said “It’ll be okay” and “[I]f you don’t like it, I’m not forcing you”. While holding the offender’s penis, YV2 was directed by the offender to move his hands back and forth. As the touching continued, the offender pulled his tracksuit pants down to his knees, exposing his-now erect penis. The offender also touched YV2 as the touching continued, including touching his genitals over his clothing. YV2 estimated that he rubbed the offender’s penis for approximately 5 minutes. This is count CH2022/868, act of indecency on a person under 16 years.
40․The offender then asked YV2 to put his penis into his mouth. YV2 responded “[O]h, I don’t know. This doesn’t feel right”. The offender responded that “if [YV2] don’t like it, then we’ll stop. It will be okay”. YV2 placed the offender’s penis inside his mouth. However, he pulled it out and told the offender “I don’t like that”. YV2 estimates that the offender’s penis was in his mouth for approximately two seconds. This is count CH2023/334, sexual intercourse with a person under 16 years.
41․The offender then asked YV2 if he could put his penis inside YV2. YV2 refused, and the offender again asked to put his penis inside him and again told YV2 that they would stop if he did not like it. The offender pulled YV2 pants down around his knees and manoeuvred him so that his knees were on the bed and his face bent down. The offender then attempted to insert his penis into YV2’s anus. YV2 felt pain and told the offender to stop. The offender told him to “relax” before continuing to attempt penetration. YV2 then told the offender that he “had enough, it’s time to stop” and the conduct ceased. YV2 estimated that the pain he felt as the offender attempted to penetrate is anus lasted for approximately 10 seconds. This is count CH2023/912, attempt sexual intercourse with person under 16 years.
42․YV2 recalled the offender telling him to not tell anyone about this incident.

Incident 2: Between 1 January 2014 – 13 June 2017

43․During this period, the offender and his family were staying in a property in a suburb of Canberra. The offender was approximately 15-18 years of age, while YV2 was approximately 11-14 years of age.
44․The offender and YV2 were sitting in the lounge area of the property and were on their mobile phones. The offender commenced masturbating with his penis exposed when looking at his phone. YV2 asked the offender what he was doing, and the offender told him that he was watching pornography. The offender then showed his phone to YV2, and YV2 observed that the pornography was cartoon pornography featuring characters from the TV show The Simpsons and Family Guy performing sexual acts. The offender showed this material for between 2 and 5 minutes. This is Count CH2023/337, making available pornographic material to a young person.
45․The offender then asked YV2 if he wanted to touch the offender’s exposed penis. YV2 touched the offender’s erect penis and moved his hand back and forth as he held it. As he did so, the offender touched YV2 on his penis, although YV2 cannot recall if the offender touched him underneath or through his clothing. YV2 felt that the conduct was wrong, and as such stopped touching the offender and said words to the effect “I’ve had enough”. This touching constitutes count CH2023/336, act of indecency on person under 16 years old.
46․The offender then commenced masturbating while YV2 remained seated next to him on the couch until he ejaculated. The parties agreed in submissions received on 24 July 2024 that this act of masturbation remains contextually relevant, but it is not the basis of the charge. YV2 recalled the offender telling him to not tell anyone about the incident.

Earlier acts against YV2

47․As noted above at [32], the agreed facts referred to the fact that the offender also had touched YV2 indecently while they were in the bath. YV2 would have been 7-9 years of age and the offender between 12-14 years. I pause to note that the agreed facts noted that the offender touched “either” YV2 or the younger brother in the presence of YV1. As clarified by the parties on 24 July 2024, the sexual act is relied only as context and informing the offender’s subjective circumstances in reference to the evidence given by Professor Boer.

Victim 3

48․Victim 3 is another younger sister of the offender, and an elder half-sister of YV1. The difference between their ages is approximately 1 year and 10 months. The time-frame given for this offending is between 12 October 2018 and the offender’s arrest in 20 July 2022. I note that this period was previously and erroneously listed as ending on 19 August 2022, but was corrected in the sentence hearing of May 2024.
49․During an examination of the offender’s phone, several video and image files were located in application designed to appear like a calculator (identified as “Secret Calculator” by the offender) and via a Google Drive account.
50․Victim 3 subsequently identified herself as the person captured in the following found material:
(a)Two explicit photographs of exposed genitals;
(b)A photograph of exposed breasts;
(c)Two photographs of exposed buttocks;
(d)A video in which a person was masturbating.

51․Victim 3 confirmed that the material was taken by her when she was aged between 18-20 years of age. Victim 3 had no knowledge that the offender had access to this material. Her phone was protected by a password. To access the material, the offender would have to enter the password. This is count CC2023/8896, unauthorised access to restricted data.

Disclosure

52․During a major argument on 14 July 2022, YV1 first disclosed the sexual offending to her mother, who is, of course, also the mother of the offender. YV1 told her mother that the offender had been sexually abusing her. The mother for her part observed that YV1’s daily behaviour since her early teenage years had been challenging, and that YV1 often spoke of having had trauma.
53․YV1 had tried unsuccessfully to talk about the offender’s behaviour in the 18 months following the incidents that occurred in early 2021. YV1 first disclosed the incidents to her eldest sister (also sister of the offender) approximately two weeks prior to the disclosure to her mother.
54․YV1 and her mother then attended the Tuggeranong Police Station on 18 July 2022 to report the matters to police.
55․The offender’s mother advised the police that she had been aware that the offender displayed aberrant sexual behaviour throughout his childhood and into his adult life. This included the offender viewing incest-themed pornography when he was aged 11 and accessing various family members’ phones without their knowledge to view personal materials. The mother was also aware that the offender had filmed his sisters naked in the bathroom of the family home without their knowledge.
56․Further, the offender had propositioned his mother at the age of 14. The offender’s mother responded that this was inappropriate and that the offender should not think about such things. After this, the offender distanced himself from his mother.
57․YV1 advised police that the offender also disclosed similar aberrant sexual behaviour and interests to her, and that the offender had told her of his sexual interest in his mother, grandmother, and sisters. YV1 also noted that the offender professed concern about his interest in Victim 3’s baby.
58․YV1 was interviewed by the police on three occasions. As a result of disclosures made by YV1 in the first interview on 19 July 2022, police conducted an interview with YV2 on 28 July 2022. Further interviews were also conducted with Victim 3 and with the younger brother in July 2022.

The Offender’s Admissions and Arrest

59․During a record of search warrant conducted on 20 July 2022, the offender also engaged in an interview with the police in which he made several admissions on multiple topics.
60․On indecent materials found on his mobile phone, the offender noted that he used to have an app called “Secret Calculator” on his phone, where he would keep files that he did not want people to see he had. These included indecent materials he had taken from the various mobile phones of his family members, including that of his mother and sisters. The offender described the materials as “a collection of photos that I have of people I probably shouldn’t have”, and that there were possibly some videos. These materials were organised into folders (eg. “YV1”).
61․The offender acknowledged that the images were taken without consent and that taking photos like the material was wrong and is simply not something that should be done.
62․The material included a video taken of YV1 showering. The offender confirmed that he only took such a video once, but that he would have had thoughts of doing it on more occasions. The offender claimed that he was motivated more by “curiosity more than anything” and that he would watch the video occasionally to see “[YV1] naked, more than anything, because I had the desire to see her naked”. The offender also admitted to observing YV1 walking around the family home in revealing clothing and noticing things that “most brothers wouldn’t. Like I would notice her arse or her boobs.”
63․The offender also confirmed that he “often think[s] about [his] sisters” in a sexual way, and that this is “one of [his] bigger issues”. The offender confirmed that he had sexual desires for three of his sisters but only acted on those thoughts with YV1. The offender also confirmed that he had such sexual thoughts “most of his life”. In relation to his sexual desire for YV1, the offender noted that the feelings begin to emerge after the “bathroom incident” but grew stronger once YV1 entered puberty or when YV1 was aged 14 years.
64․The offender also gave his account of the incident that occurred in the bathroom with YV1 and the incident with YV1 between 1 January – 31 March 2021. The offender also admitted to “experimenting” with YV2 when he stayed over and expressed interest in boys about “4-5 years prior”.
65․The offender was arrested and has been in custody since 20 July 2022.

Victim Impact Statements

66․Inevitably, considering the nature of the offences, the impact on the victims of these disturbing offences has been significant.
67․Six victim impact statements (VIS) were read out at the first sentence hearing of February 2024.
68․The first VIS was from Victim 3, which was read out by the police informant in this case. The statement included the following:
My life is not the same as it once was, and I’m not sure it will ever be the same again.
…
I have been violated, and the lack of respect and courtesy that I have been shown has taken an immense toll on not only my life, but on those who I love. The toll cannot be measured. The betrayal that’s happened from someone who I believed was safe to be around undermined everything I believed right in the world.
…
I have been smoking marijuana to try and drown out my emotions…It’s gotten to the point where it is the only thing that’s helped me balance the anxiety I feel to leave the safety of my own home.
But I worry that because I am smoking marijuana it automatically makes me a terrible mother. So I have actively sought treatment from my psychologist… and I am slowly weaning off it.
I have been seeing a psychologist… for just over 12 months, and I’ve started recognising that for a long time I had not been any boundaries in place for the way others treat me, or given myself permission to have what I want. Because I feel I don’t deserve to be happy. This has resulted me actively isolating myself from my mother, siblings, aunt, uncle and cousins, who I love and have been an active part of my life growing up. I miss them.
These feeling I have of myself, has now spilled into other facts of my life, in particular with my relationship with the father of my daughter. Because of the self-loathing I have of myself, I allowed him to believe to absolute worst of me and my immediately family. I thought I deserve to be manipulated, mentally abused and be controlled into thinking I am not worthy or strong enough to be a good mother or partner.
…
I am actively working on rebuilding myself, and my life. I know it will take a long time… I want to be happy again and not held back by what has happened to me and my family.

69․The police informant also read the second VIS on behalf of YV2, and included the following:
The harm I have suffered because of the offences committed against me frustrates me more than anything. I want nothing more than to be a normal 21 year old man!...
… I suffer from severe panic attacks, which strike at any time. The panic attacks are real, and make me feel as if I’m going to die…
I go to bed every night afraid to go to sleep because I think I am going to die in my sleep. My heart races every night as I lie down…
I struggle to walk into work on a daily basis as I think everyone is looking at me and judging me negatively. I hate people looking at me, as in my mind everyone is thinking the absolute worst of me.
I’ve had to see a psychologist and psychiatrist to get treatment for the trauma I endured for years as a child. I hate that I have to do this. And even now, I don’t think it’s helped me enough to overcome the feelings of how powerless I feel in my own body and mind.
…
For years, before any of this became known, what I tried to do was bury what happened to me… I used drugs and alcohol to numb the pain from the age of 14 all the way through 20, but all that did was take away my opportunity at high school to find where my passion was… and it feels like it has set me back in the career I want to have.
Because of what I’ve gone through, I’ve lost my ability to have confidence to make the choices in life I want…
…
When my mum asked me if I had been hurt… I was terrified. I knew the moment had come and if I confirmed, the pain my family was going to face. I was fine to be the only one who carried the pain, but to see the pain in my [parents’] face, and my siblings is something I carry with me.
…
I want my life to be normal… I hold onto this hope, but I don’t know when or if this will ever occur.
70․The third VIS was of the mother of YV2, and includes the following:
Our ability to protect our son, was taken from us.
Never did we think in a million years, allowing our son to know and grow with extended family like cousins, would be the worst mistake we could have made.
Because of what has happened to [YV2], we have seen our beautiful, vibrant, funny, excitable, lovable son become a sad, anxious, scared and self-loathing man due to no fault of his own.
…
When [YV2’s father] and I were first told that our son… had been sexually abused as a child, over a sustained period of time, we were in complete and utter disbelief. There was no way a member of our extended family would or could hurt our baby, especially when [YV2] was so young.
Being the parents we are, … we asked [YV2] if this was true. I will never forget the moment when I asked my 19 year old son if he had been hurt by [the offender]. His eyes were wide and frightened, and his response was a single tear falling down his cheek and him just nodding.

…
What [YV2] had worked so hard at by turning to drugs to push down … had been awoken and he has had to face the harsh reality that he is a victim of child sexual abuse, and everything that goes with that.
…
He is still trying to protect us, his parents, by asking us not to know what the details are… All we know is that our son was hurt, and is a victim of child sexual abuse. This is our worst nightmare as … parents.
The impacts of what was done to [YV2] is still being felt by him.
…
71․The fourth VIS is that of the mother of the offender, YV1 and Victim 3, and includes the following:
[YV1] is the bravest and strongest person I know, and I am so very proud of her.
…
In late 2014, I made the decision along with [YV1] father, for both [YV1] and [the younger brother] to live with their dad and his-then wife …
Little did I know this period was one of the few times [YV1] was not at risk of being abused from inside my own immediate family.
…
During [YV1]’s early teenage years through to when she was 16, [YV1]’s behaviour escalated both in a physical and verbal sense. She hated going to school… She would often fly into a rage, with the majority of her anger and frustration aimed solely at me. This was usually due to her thinking I didn’t understand where her frustration was coming from, and to a great point, this is correct. I didn’t understand why she was angry all the time or what / who was causing it.
…
I didn’t realise that my own home was the one place [YV1] was most at risk of being hurt.
…
It was that moment … when it first dawned on me the realisation and gravity of the terror [YV1] had been going through since she was a little girl. The blame and pain that she had endured all her life hit me like an atomic bomb… It … made me sick physically and my world crashed that exact moment. The home that I had made and the children I had raised, was the one place where she should have felt completely safe, loved and protected. I was so very very wrong. I never felt more like a failure than at that moment.
…
[YV1] is still angry at me, is angry at her older sister, does not live with any of her siblings and only lives with my mum…
I lost everyone in 24 hours… I felt like the whole world blamed me for the destruction of my family. I have been judged, alienated, pushed away and not supported by anyone. I lost jobs, lost my husband and lost friends… I lost 5 kids in one blow and the pain of that will never go away. I did my absolute best with the hand I was dealt, and I have always loved my children and put them first even though they do not see or believe that. I protected them from every outside influence I could. I had no idea the danger was under my own roof.
… I blame myself enough and will always blame myself no matter who says different.
…
I am not allowed to love [the offender]. I am not allowed to feel sorry for him. I am never allowed to ever support him and I understand that. But I am also his mother and I have also hurt him…
…Once there was a time when the offender came to me to talk and from the conversation, I knew there was a problem with him.
I thought he was just confused as he was young and going through puberty, but regardless I should have made a point to get him the help he obviously needed, but instead I stuck my head in the sand and tried to believe that he will grow out of it and that he would understand what he said was wrong.
I should have made sure he got the help he desperately needed.
…
They should never be going through any of this and that is my fault. If I could change things I would but I can’t….
Our family unit is broken, and our lives will never be the same again.
…
72․The fifth statement is from YV1, and includes the following:
What [the offender] did to me over all those years was really confusing for me. I couldn’t make sense of it. He is my half-brother. Then it started to make me increasingly angry because I started to realise how much it affected me and nobody believed me.
I would get aggressive, and people would ask me why… I stopped playing footy because I would be too aggressive. I got into fights at school and eventually stop going. I finished year 10…
Around 11 years of age I started self-harming because I didn’t know how to feel and hurting myself would take away the thoughts of what he was doing me. I wanted to take it away for a second.
I would pull my hair out when I got really upset.
I had no idea how to stop it and was scared it might also happen to others in my family…
Even after the physical abuse had stopped, I would still get very triggered when I saw [the offender]..
[The offender] would also encourage me to smoke pot and would supply pot to me. Because of that, I was a heavy pot smoker from about 11, maybe a bit older… I started to smoke heavily after the first time [the offender] penetrated me…
It led me to oversexualise myself, but whenever something was going on with a male it would make me physically sick and I would vomit. So it really affected my ability to relate to other men, what [the offender] did to me.
…
I always look over my shoulder, always feel in fight-or-flight more even now…
…
I also have [borderline personality disorder] symptoms, but that can only be diagnosed when I am 18.
My brain works non-stop, I am always dreaming nightmares about [the offender] and also other stuff. It makes me feel exhausted and I have no energy during the day. I feel always unsafe.
….
It had, and still has such a big impact on so many areas of my life.
73․Finally, there is also a VIS from the father of YV1, a previous partner of the offender’s mother:
I found out about this several months after [the offender] was arrested, [YV1] sent me a text message saying ‘Dad I need to talk to you ASAP’. I called her that night and she told me the most horrific thing to hear from your daughter as a [d]ad.
She cried and cried and I felt so much guilt, I’ve still got it today. I felt … like I failed my children…
When I was with [YV1]’s mum, I used to do everything with [the offender]… After finding out what he done, I felt betrayed and hurt and I’m still very angry.
Looking back at [YV1]’s life, there is a point in time [where] I remember she changed… I didn’t pick it at the time but it’s very obvious to me now.
…
When [YV1] was about 12 or 13 years old, I found out she was hurting herself but I didn’t know why. I found her sheets and doona covers in her bed were cut and she was wearing long sleeves covering her arms… when I was back I asked [YV1] about this and she showed me her arms. We needed to put in a safety plan and remove all sharp objects.
… I remember finding [YV1’s] diary once after clearing her desk… I found writing on her desk under everything, things like ‘I want to die’, ‘I’ve had enough’,….
I looked into her diary and it was full of nasty stuff, some about me, some about her mom, some about smoking put, a lot about wanting to hurt herself.
…
[The offender]’s actions have really torn up the family, caused a big divide in [the offender’s mother]’s family, her sister and all of the kids. This has teared [YV1] and she thinks it’s all her fault. She is always apologising to me, for not telling me soon, she didn’t want to hurt me, for putting everyone through this and for just putting people out in general.
…
[YV1] had problems keeping jobs …
[YV1] won’t get closure after this court case and is sick of everyone telling her she will get closure.
I know this will be with [YV1] for the rest of her life… she missed out on being a young girl… on doing a lot of young girl things.
… [The offender] was her brother, this should not have happened.
…
74․The prosecution correctly submitted that the effect that the offending has had on the victims and their families is profound. This is abundantly clear to the Court. It is without question a profound family tragedy.
75․This Court recognises the undeniably serious impacts of these crimes on the victims. The Court acknowledges the importance of what the victims YV1, YV2 and Victim 3 have expressed in their statements. The Court recognises and underlines the serious and long-lasting effects of the offender’s crimes on all the victims and acknowledges and underlines the significant impact that the offences have had on the victims and the parents who gave VIS.
76․I repeat what I said at the sentence hearing of February 2024, when the victim impact statements were read out. The victim’s statements were dignified and eloquent of pain, and clearly difficult and distressing to write. It is self-evident that none of this should have happened to the victims.
77․The Court also acknowledges what YV2’s mother, the mother of YV1 and Victim 3, as well as YV1’s father have expressed in their eloquent and dignified statements. No child and no parent should have to go through what they have all been through in this case. Additionally, the Court recognises the serious effect that the offender’s crimes have had on children and families. The Court also acknowledges the additional guilt expressed by the mother of both YV1 and Victim 3, who is also the offender’s mother. The home environment created by the mother of the offender and the mother of victims YV1 and Victim 3 was not a safe childhood home.

Issues at the hearing

78․At the outset, I note that this is a case where the sentence must be a sentence of imprisonment in light of the seriousness of the offences. The prosecution submitted that the threshold for imprisonment was crossed in this case. This submission was also maintained in relation to the offending committed when the offender was a young offender and not an adult. Counsel for the offender conceded that a term of imprisonment is appropriate overall in this case (save for the initial act of indecency against YV1 and the offending against Victim 3).
79․Notwithstanding this and other areas of otherwise proper agreement as between counsel, it is clear that there are contentious sentencing issues. First, as I will discuss under the next heading, there is significant disagreement as to the objective seriousness of the offender’s conduct. Second, there is the issue of the offender’s prospects of rehabilitation.
80․Third, there exists a significant issue concerning the psychological report of Professor Douglas Boer dated January 2024 (the Report by Professor Boer) tendered on behalf of the offender. Specifically, the main area of contention centres on the diagnoses made by Professor Boer, and the application of the Verdins and Bugmy principles. The Court has had the benefit of Professor Boer giving evidence at the sentencing hearings in both February 2024 and May 2024.
81․Ultimately, counsel for the offender submitted that taking into account backdating, a period of imprisonment imposed to account for the time the offender has already spent in custody, the offender should be left to serve a further “short sharp term” of further imprisonment followed by a further period of supervision in the community with strict supervision to allow the offender to attend rehabilitative counselling and courses. My view as I discuss later in this judgment, is that a further term of imprisonment longer than “a short sharp term” term of further imprisonment is required in light of the seriousness of the offences. Clearly, intensive rehabilitation is also required taking into account all the evidence that I discuss in detail below.

Objective seriousness

82․An assessment of the objective seriousness of an offence has always been an essential part of the sentencing process: DPP v Druett [2024] ACTSC 56; 106 MVR 186 at [19]; see Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]. It has been stated in this jurisdiction that it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua). Categories as to range may be opaque and lack clarity. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I will identify relevant features in relation to the objective seriousness.
83․Before turning to the objective seriousness of the specific offences, it is useful to note the general submissions made by both parties.
84․In written submissions, counsel for the offender submitted that the offending was generally at “the lower ranges” in terms of objective seriousness with the exception of the count CH2023/912 offence, which counsel for the offender conceded was at the lower end of mid-range, as opposed to low range of objective seriousness. Counsel for the prosecution disagreed with the broad submission relating to objective seriousness made by counsel for the offender.
85․Counsel for the prosecution properly referred to the age difference between the offender and each of his victims: see DPP v Kenyon [2023] ACTSC 365 at [57]-[58]; Shannon v The Queen [2006] NSWCCA 39; R v Hammer [2019] ACTSC 182 and Corby v The Queen [2010] NSWCCA 146.
86․The prosecution submitted and I agree on the evidence before me that the following factors would inform an assessment of the objective seriousness of the offending concerning YV1:
(a)The power imbalance between the offender and victim (informed by the age difference and the offender’s status as an older sibling);
(b)That the offending was committed for the offender’s sexual gratification.
(c)That grooming was used by the offender to commit the offences. The prosecution also referred to the Report by Professor Boer, which noted that “the majority of [the offender’s] current offences involved attempts to gain compliance of victims through grooming tactics”.

Offending Against YV1

87․The offences committed against YV1 are incestuous in nature. All but one of offences committed against YV1 occurred when the offender was 22 years of age.
88․I will now turn to the parties’ submissions in relation to each individual offending against YV1.

Count CH2023/332 (act of indecency)

89․Counsel for the offender in written submissions argued that the act of indecency that occurred in “Incident 1” (CH2023/332) was of low-level of objective seriousness. Counsel for the offender submitted that there was no physical contact involved and the offending lasted “a very short period of time”. At hearing, counsel for the offender agreed that there was “a level of coercion” in that the offender pulled YV1’s top and looked at her breasts.
90․The prosecution properly agreed that this particular offence was of a “lower” objective seriousness for the offences of this type. Counsel for the prosecution noted that while the offending involved coercion, the act itself is limited to staring at YV1’s chest. The offender was also a young offender at the time this was committed.
91․The submissions made by the prosecution and counsel for the offender accord with my view of the objective seriousness of this particular offence as being at lower objective seriousness taking into account the identifying features discussed above.
92․In oral submissions, counsel for the prosecution highlighted that it is relevant that YV1 was in the lower age range for the offence at the time of this offending (10 years old). Further, counsel also noted that the offender ignored YV1 saying no, and that the offender used gaming as a grooming tactic. In conclusion, counsel for the prosecution maintained that, on account of the aggravating features described, the threshold for imprisonment had been crossed in contrast to the offender’s submission. In my view any sentence of imprisonment in relation to this count in context of the other offending would have to be fully concurrent as a matter of totality.

Count CC2022/7006 (supply of cannabis to a young person)

93․Counsel for the offender initially submitted that the offence of supplying cannabis to YV1 (CC2022/7006) is of “low-level objective seriousness”. Counsel for the offender noted that the offender provided the victim cannabis while they were playing computer games, and that it appears that cannabis was readily available throughout the household, including from the victim’s mother. At the hearing, counsel for the offender noted that the offending must be viewed in light of evidence from the offender’s mother’s VIS that she was also a cannabis user and would regularly provide YV1 with cannabis. Counsel noted her instructions that the offender’s mother supplied the cannabis to the offender which was then supplied to YV1 and as such YV1 was not “brand new to the exposure of cannabis”.
94․By contrast, counsel for the prosecution submitted in written submissions that the supply of cannabis to YV1 occurred in the context where the offender then proceeded to detail his sexual perversions for other family members before committing further sexual offending against YV1. Counsel also noted that YV1 was 14 years of age, and consumed the cannabis pure (absent tobacco), via a bong, and the cannabis was of sufficient potency for the victim to feel “stoned”. Further, the prosecution submitted that this offending cannot be divorced from the sexual offending that followed.
95․In oral submissions, counsel for the prosecution further submitted that the fact that cannabis was consumed regularly in the household, while possibly contextualising the offending, did not mitigate the offending. In reply, counsel for the offender maintained that the general exposure to cannabis mitigates as this entails that YV1 was not a person who was seeing and consuming cannabis for the first time. In other words, counsel for the offender submitted that the “normalisation” of cannabis use in the household mitigates the offending, although counsel conceded that this is not “necessarily much of a mitigating factor”. In my view, this is not a particularly significant mitigating factor.
96․Ultimately, the prosecution submitted that the objective seriousness of this offending was in the context of sexual offending.
97․In conclusion, I do not assess this offence as of low-level objective seriousness as was submitted by counsel for the offender. The offending is above low range. The supply of cannabis by a 22-year-old man to a 14-year-old child is a most serious identifying feature of this offending.

Count CC2023/6542 (use child for production of child exploitation material)

98․Counsel for the offender submitted that the offending of using YV1 to produce child exploitation material (CC2023/6542) was also of “low-level objective seriousness”. Counsel noted the filming had occurred without the victim’s consent or knowledge while YV1 was in the shower in the home they were sharing. The footage showed the victim showering herself and included footage of her breasts, genitals, and anal regions, but does so from a “distance”. Counsel submitted that there was no penetrative conduct in the making of the footage and the victim was unaware of its existence until shown by the offender. Counsel also noted that the footage was not made for dissemination and was in fact not disseminated.
99․Counsel for the offender noted at the hearing that while there was a breach of trust in creating the footage, the breach was not through the offender “using” YV1 by directing her what to do. Further, it was submitted that there was no other contact offending occurring at the same time. Counsel submitted that this lessened the objective seriousness of the offending.
100․In oral submissions in reply, counsel for the prosecution cavilled with the significance of YV1’s footage being taken “at a distance”. As YV1 was in the shower, the distance would have been “metres” at most. Rather, counsel for the prosecution submitted that the objective seriousness of the offending was compounded by the offender retaining the footage to view for his own sexual gratification.

101․Counsel for the offender underlined that the point about “the distance” was made to contrast the situation of an offender who was present and choreographing YV1 on what to do for the purpose of being captured by the footage. In other words, the relevance of “distance” was in the absence of any direction from the offender. Counsel ultimately properly accepted that this pointed rather more to the absence of an aggravating factor.
102․Counsel for the offender properly agreed that the most important consideration for this Court is that the offender filmed YV1 and that the reason for the filming was obviously the offender’s sexual interest in YV1 and the desire to see her naked.
103․Relevantly, in DPP v Myers (a pseudonym) [2023] ACTSC 142, Mossop J stated at [38]:
[T]he objective seriousness of this offence depends upon both the acts involved in the production of the child abuse material, as well as the circumstances in which that child abuse material came to be produced.
104․Applying these principles, I agree with the prosecution’s submission that the video captured the naked body of a 14-year-old child and was filmed without the victim’s knowledge or consent and was for the offender’s sexual gratification. The offending involved an invasion of privacy and a breach of familial trust.
105․In conclusion, I do not assess this offence as of low-level objective seriousness as was submitted by counsel for the offender. In my view in light of the identifying factors discussed above at [104] the offence is above low range.

Count CC2022/2005 (making available pornographic material to a young person)

106․In relation to the offender showing YV1 the footage of Victim 3 engaging in sexual conduct (CC2022/2005), counsel for the offender submitted that the offending is of low-level objective seriousness. Counsel submitted that the showing of this footage does not appear to have been done for sexual gratification, but more as a confession of having accessed the footage.
107․Counsel for the prosecution submitted that in assessing the objective seriousness of this offending it was important to underline that the victim was shown explicit video footage of her sister performing a sexual act, as opposed to “general pornography with unknown participants”. I agree with the prosecution’s submissions, as it accords with my view of the facts. Counsel for the offender accepted that the footage showed Victim 3 masturbating and that made the offence “objectively far more serious” but submitted that the objective seriousness should also be informed by other factors concerning the nature of the offending (eg. nature of the footage being only of masturbation, of unclear length).
108․In further submissions, counsel for the prosecution submitted that the “only inference available” was that the footage was of Victim 3 masturbating as this was the only footage of Victim 3 found by the police.
109․Finally, counsel for the prosecution submitted that there exists an aggravating factor in that the offender was showing YV1 the footage for his own sexual gratification. Counsel highlighted the fact that the offender was touching his own genitals while looking at YV1, and then proceeded to ask YV1 if she wanted to see his penis. Further, the prosecution noted that prior to this the offender was showing YV1 the footage of YV1 in the shower. In other words, this offending was submitted to be “intrinsically linked to the offender wanting to commit sexual acts against [YV1]”.
110․Counsel for the offender submitted that the motivation of the offender is unclear, and that this Court should not hypothesize or second guess the reasoning why the offender showed the footage. In other words, the submission was that this Court cannot be satisfied beyond reasonable doubt of this aggravating feature. I disagree with this submission. The motivation is not unclear on the evidence.
111․In my view, the aggravating feature is proven beyond reasonable doubt on the evidence. I am not satisfied that this offending is of a low-level objective seriousness as submitted by counsel for the offender the offender. It is above low level in light of the features identified and discussed above at [109]-[110].

Counts CC2022/7924 and CC2022/7009 (act of indecency)

112․Counsel for the offender submitted that the act of indecency (CC2022/7924) was of “low-level objective seriousness”. Counsel for the offender conceded that the touching of YV1 breasts was a “breach of trust” reposed in an older brother. However, counsel noted that neither violence nor threats was used by the offender. Further, the touch was said to be quick.
113․Counsel for the offender also submitted that the second act of indecency (CC2022/7009) encompassed in Incident 2 was equally of “low-level” objective seriousness. Counsel submitted that the offender apologised when he realised YV1 was awake and pulled his blanket to cover his penis once he realised YV1 had seen his penis. Counsel for the offender also noted that YV1 then turned on her side and heard the offender masturbating again after 5 minutes.
114․Counsel for the offender submitted, in relation to the touching of the breasts, that there was no premeditation involved. The spontaneity of the offending, it was submitted, lessened the objective seriousness of the offending. Further, while there was a breach of trust and the fact the offender was older meant that a trust was reposed in the offender, counsel for the offender noted that the breach was not of a trust placed on a parent. a religious minister, or a school teacher. Counsel for the offender also noted that while there was “a small level” of coercion involved, no physical violence was used.
115․Counsel for the prosecution in relation to both counts of act of indecency noted that the acts occurred after YV1 had refused the offender. YV1 had responded to requests to perform sexual acts by saying “no, you’re my brother”, “no way”. Further, YV1 stated that she “[didn’t] really want to see” the offender’s penis. The offender’s overriding of the clear wishes of the victim is, in my view, relevant to objective seriousness of the offences.
116․I agree that the identifying features referred to above including the fact that both counts occurred after YV1 had refused the offender’s incestuous demands entails that the objective seriousness is not low level as contended for by counsel for the offender.

Counts CC2022/7010 and CC2022/7011 (incest)

117․In relation to the incest offending that involved cunnilingus and digital penetration of YV1’s vagina (CC2022/7010), counsel for the offender submitted that it was of “upper low-level objective seriousness”. Counsel noted that the act was for “a very limited period of time”. Counsel also noted that there was no violence used and no degradation or humiliation. Counsel also noted that there was no chance of pregnancy from the act. By contrast, counsel for the prosecution highlighted the fact that the offender continued to perform cunnilingus, even after YV1 pushed him away and told him to “stop, just stop”.
118․Counsel for the offender also submitted that the second offence of incest against YV1 (CC2022/7011) was of “upper lower-level objective seriousness”. Counsel submitted again that there was no violence, degradation or humiliation, and the offender stopped when he was asked to. Counsel for the offender submitted that while there was penile-vaginal intercourse, this was for a short period of time and the offender did not ejaculate.
119․Counsel for the prosecution in written submissions noted that this act occurred immediately following the offender being pushed and told to stop but continuing to perform cunnilingus. Counsel for the prosecution noted that penetration occurred without a condom for approximately 1 minute and was also absent contraception. The penetration only ceased when the offender was told to stop, and YV1 dressed herself.
120․More generally, on the issue of premeditation and coercion, counsel for the prosecution submitted that the offender demonstrated a disregard for YV1’s refusal. While not involving careful or detailed planning, counsel for the prosecution submitted that the offender “had in his mind engaging in sexual acts”. As such, counsel submitted that there is premeditation evidenced by the offender’s persistence and escalation. I agree that there is pre-meditation to that extent on the evidence as discussed below at [122].
121․I note that counsel for the offender at the May 2024 hearing maintained the submission that there was no premeditation whatsoever. Counsel noted that the offender and YV1 were living together, and the facts do not establish that the offender did anything that would indicate planning (eg. separating YV1 from her family, taking her to a remote location). In my view, the fact that there was not greater planning does not mean there was not some level of premeditation.
122․The prosecution conceded that there was some initial degree of opportunism (with escalation), and that there was an absence of significant degree of planning. This submission accords with my view of the facts.
123․Counsel for the prosecution noted, that there was physical and verbal resistance on the part of YV1 during the two incest counts and that resistance was ignored. Counsel for the offender in the May 2024 hearing properly accepted that the conduct engaged by the offender could not be said to involve “no violence”. Counsel for the offender clarified that the submission of no violence was in the sense of no further violence (eg. holding YV1 down), which would have been a further aggravating factor.
124․In conclusion, I am not persuaded that the offending was only of “upper low-level objective seriousness” as was submitted by counsel for the offender. The offending of CC2022/7010 was marked by identifying features of the offender being pushed and told to stop. The offending of CC2022/7011 was marked by the identifying feature that penetration occurred without a condom. Further, I note that there was premeditation and coercion to the extent discussed above at [122].

Offending Against YV2

125․The offending against YV2 occurred when the offender was a young offender. Counsel for the prosecution correctly submitted that the objective seriousness of the offending is informed by the following factors:
(a)The power imbalance between the offender and victim (informed by the age difference). I note that the offender was approximately 3 years and 6 months older than YV2.
(b)The level of premeditation involved in the offending; the offender suggesting a game of “truth or dare” to initiate sexual contact and exposing the victim to pornography prior to committing sexual acts for the offender’s sexual gratification.
(c)That the offender ignored direct requests to stop, from YV2.

Incident 1 (CH2022/868, CH2023/334 and CH2023/912)

126․As to the specific offences against YV2 encompassed in “Incident 1” (CH2022/868, CH2023/334, CH2023/912), the prosecution submitted that the offences all occurred in the context of the offender initiating sexual contact with a child in the form of a “game”: truth or dare. The offender was made aware of YV2’s discomfort during the incident. The prosecution highlighted that despite the offender saying to YV2 “if you don’t like it, we can stop”, the offending escalated to the point of attempting penetration of YV2’s anus, which caused YV2 significant pain and discomfort. This attempted penetration continued after the offender was explicitly told to stop, to which his response was telling YV2 to “relax”. In my view, these are all significant identifying features that inform objective seriousness.
127․Counsel for the offender made the following submissions in relation to the three counts in “Incident 1”. First, the act of indecency (CH2022/868) is of “low-level objective seriousness for offences of this kind”. The prosecution made no submissions as to range. Counsel for the offender submitted that there were no physical violence or threats. At the hearing, counsel for the offender also cavilled with the prosecution’s characterisation that there was a significant degree of premeditation from the playing of “truth or dare”. Further, while counsel for the offender conceded that there was “cajoling” involved, there was no physical violence or threatening behaviour on the part of the offender. I take these identifying features into account on the objective seriousness of this count.
128․Counsel for the offender further submitted that the sexual intercourse with a person under 16 (CH2023/334) offending was at the “upper lower level of objective seriousness). The prosecution made no submissions as to range. Counsel submitted that there was no violence and the offender stopped when the YV2 said he did not like it and the offender did not ejaculate. I take these identifying features into account on the objective seriousness of this count.
129․Further, counsel for the offender submitted that the attempted sexual intercourse with a person under 16 years (CH2023/912) offending is of “lower mid-range” of objective seriousness. Counsel noted that the offending occurred immediately after the offending subject of CH2022/868 and CH2023/334. Counsel for the offender submitted that there was no physical violence used in the offending. There was also, it was submitted, no threats of violence. Further, counsel submitted that the offending lasted for only a short time and the offender stopped when requested by YV2.
130․In relation to the attempted sexual intercourse (CH2023/912), counsel for the prosecution submitted that this count involved the infliction of direct violence on YV2. YV2 was in significant pain. As such, it was submitted that the offence was serious. I agree. This is indeed a serious offence.
131․In conclusion, as to count CH2023/912 I note that the prosecution did not put forward a submission concerning a specific range of seriousness. Nevertheless, I do not agree with the “lower-mid range” submission made by the counsel for the offender. It is serious offending and above the label attached by counsel for the offender. The identifying features are outlined at [125]-[126], and [130].
132․Counsel for the prosecution noted that there was some premeditation for count CH2022/868. Suggesting a game of “truth or dare” and immediately introducing a sexual element was submitted to be evidence of some premeditation (although not sophisticated planning) on the offender’s part. I agree with this submission. It is clear on the evidence. See [127]. It was not on the evidence a significant level of premeditation.
133․Further, counsel for the prosecution correctly noted that the Report by Professor Boer itself described the game of “truth or dare” as a grooming-type behaviour. Counsel for the offender accepted that this was a “low-level” and unsophisticated type of grooming behaviour (see [127]).

Incident 2 (CH2023/337 and CH2023/336)

134․In relation to the counts in “Incident 2”, counsel for the offender submitted that the pornographic material (CH2023/337) offending in “Incident 2” was of “low-level objective seriousness”. Counsel submitted that this was a discrete incident, one that was not long lasting. The pornography shown was cartoon animation. In oral submissions, counsel for the offender noted that the video was shown for 2-5 minutes, and in the absence of particularisation of the material this Court should not assume that the worst type of sexual acts were depicted in the cartoon pornography. In my view, these matters are relevant to the Court’s assessment of objective seriousness.
135․In relation to masturbation in presence of YV2 incident that formed part of “Incident 2” (CH2023/336), counsel for the offender highlighted the lack of violence and coercion as well as the brevity of the episode. In my view, these matters are relevant to the Court’s assessment of objective seriousness.
136․I conclude the specific offending concerning count CH2023/337 does tend toward lower-level objective seriousness in view of the fact that it was cartoon animation. As to the offending subject of CH2023/336 (the “mutual” touching) in view of the identifying features outlined above at [135], this offending also tends toward lower range.

Offending Against Victim 3

137․Counsel for the prosecution submitted that the offending “must be regarded as a serious example” of an unauthorised access to restricted data offending (CC2023/8896). I agree. The prosecution properly submitted that the seriousness of the offending is informed by the following which accord with my view of the relevant identifying features:
(a)The material taken was not insignificant (5 x photographs, 1 x video) and contained graphic depictions of Victim 3’s genitals and of her performing a sex act.
(b)The offending involved a familial breach of trust, “not only that [Victim 3]’s material would be accessed, but that it would be done so by a trusted family member” for sexual gratification.
(c)That a level of sophistication was involved in the offending, namely the attainment and use of a protected password before removing the material from the victim’s phone.

138․For the offender, it was submitted in written submissions that the offending was of “low-level objective seriousness”. I disagree. Counsel for the offender submitted that while it is a breach of privacy, the material was not shared beyond being shown to YV1. Further, the material was not used in any way to exert influence on Victim 3. At the hearing, counsel for the offender conceded that the offending involved a breach of familial trust, while noting at the same time that the offender’s mother appeared to have been aware of the offending for a period of time.
139․Counsel for the prosecution submitted that while the instant offending is not a typical example of the offence, that is not involving accessing data from corporate entities, the offending remained a serious example of such an offence. I agree as this accords with my view of the facts as discussed at [137].

Subjective circumstances

Pre-sentence report

140․In evidence before me is a pre-sentence report dated 30 January 2024 prepared for the offender (PSR) which includes the following in relation to the offender’s subjective circumstances. At the time of sentencing, the offender is 25 years of age.
141․Records indicate that the offender’s behaviour in custody has been satisfactory and there has been no negative interactions.

Family Background

142․The offender was born in Queensland. There was a lot of moving during his childhood. His family moved to Canberra when he was 9 years old. The family moved back to a city in Queensland when he was 18 years old and the offender also resided with his father at some point. The offender eventually returned to live with his mother in Queensland, then back to Canberra.
143․The offender reported being raised in a dysfunctional household and described himself as the “emotional punching bag of the family.” His sister confirmed that the offender was subjected to ridicule and humiliation by the family. His parents divorced when he was aged two, and he had no contact with his father until he was 19 years old. Family members told the offender that his father was physically abusive towards him, although he personally has no recollection of this. The offender did recall irregular physical abuse from his mother, and more regularly by his stepfather.
144․The offender has four siblings on his mother’s side including YV1 and Victim 3, victims of the current offences. The offender reported that he no longer has contact with his mother or three of his siblings. The offender also reported that he ceased contact with his mother due to the emotional abuse he was subjected to in his childhood. The offender also has two siblings on his father’s side, and he does not have contact with them. The primary support for the offender is his older sister and her partner.

R v Aitchison (No 3) [2018] ACTSC 214 (Aitchinson (No 3))

20․Aitchison (No 3) involved historical sexual offences by a deacon of the Anglican Church between July 1987 and October 1989: at [3]. The offender was found guilty by a jury of seven counts of acts of indecency with a young person and five counts of sexual intercourse with a young person: Aitchison (No 3) at [1]. The victim between 13 and 15 years of age at the time of the offending: Aitchison (No 3) at [3]. The offending occurred at an Anglican Church and the victim’s house. The counts variously involved both penile-vaginal and penile-anal sexual intercourse, digital penetration of the victim’s vagina, the touching of the victim’s body (including breasts and groin area), placing of the victim’s hand on the offender’s penis, kissing, and the removal of the victim’s shorts and underwear: Aitchison (No 3) at [7].
21․The offender was around 68 years of age when he was sentenced and suffered from an adjustment disorder and associated depression: Aitchison (No 3) at [12], [15]. Elkaim J observed that the offender was unlikely to reoffend, if only because of his age and the limited access he would now have to potential victims: Aitchison at [11]. The offender also had prior convictions, including for offending against children: see Aitchison (No 3) at [17]-[18]. As the offender maintained his innocence, Elkaim J noted that there is no element of remorse: Aitchison (No 3) at [24].
22․Elkaim J sentenced the offender to a total term of imprisonment of 9 years for the offending from 27 April 2018 to 26 April 2027, with a non-parole period of 5 years expiring on 26 April 2023: Aitchison (No 3) at [26]-[28]. This included individual sentences of 5-6 years for sexual intercourse with a young person, and 12-18 months for acts of indecency: Aitchison (No 3) at [26](a)-(l).

R v AQ [2021] ACTSC 74 (AQ)

23․In relation to sexual offences committed by children, counsel for the prosecution also referred to AQ. AQ involved an offending by a young person, who pleaded guilty to incest and act of indecency in the presence of his younger sister: at [1]-[2]. Mossop J observed that the authorities his Honour was referred to “do not provide any clear sentencing patterns of offences like this”: AQ at [32]. For his part, counsel for the prosecution noted that AQ is “clearly distinguishable” from this case on several fronts and the prosecution in AQ also conceded that a wholly suspended sentence was appropriate: AQ at [31].

R v CV (Supreme Court (ACT), Nield AJ, 5 September 2012, unrep) (CV) and R v EO [2017] ACTSC 138 (EO)

24․Counsel for the prosecution also noted that a number of sentencing decisions he reviewed did not occur in a familiar context, or otherwise do not carry any other number of similar features that would make them of assistance to the Court in dealing with offending committed when the offender was a young person. As an example, counsel cited the cases of CV and EO. In both cases, the prosecution submitted that there was only limited offending that occurred, with a young person engaging in sexual acts with children under the age of consent: see description of the offending in CV at [7]-[12], [29]; EO at [3]-[6].

Cases Referred to by Counsel for the Offender

R v Young (a pseudonym) [2021] NSWDC 702 (Young DC); Young (a pseudonym) v The Queen [2022] NSWCCA 111 (Young)

25․The first cases referred to in the February 2024 hearing are Young DC and Young. The offender in Young pleaded guilty to two historic offences of sexual intercourse with a person aged between 10 and 16 years, contrary to s 66C(1) of the NSW Crimes Act, and an offence of attempted sexual intercourse with a person aged between 10 and 16 years old, contrary to s 66D of the NSW Crimes Act: Young at [4]. Both offences carried maximum penalties of 8 years imprisonment at the time, and there were also three further offences against s 66C(1) taken into account on a “Form 1”: Young at [4]. The victim was the offender’s half-niece: Young at [10]; Young DC at [1].
26․At the time of the offending in about 2003-4, the offender was 14-16 years old: Young at [4], [12]. The offending occurred when the victim was 9-11 years old: Young at [4], cf Young DC at [4]. The matters subject of the charges were also representative incidents: Young DC at [11].
27․The offender first started to touch the victim and forced her to touch him. Sometime after that, the victim was lying on a bed when the offender inserted a yellow hose rubber into her vagina (Form 1 s 66C offence): Young at [12]. The victim replied that she did enjoy it as she thought it was “normal”, with N Adams J in the NSW Court of Criminal Appeal noting that this was presumably due to separate assaults being committed on her by her grandfather: Young at [12]. The offender masturbated while he did this. The offender then put his penis into her mouth, and the victim sucked his penis until he ejaculated (sexual intercourse with a person between 10 and 16 years of age).
28․On a second occasion, the victim was lying on a bed when the offender again inserted some yellow hose rubber into her vagina (Form 1 s 66C offence). The offender also inserted his fingers into the victim’s vagina to “stretch” it (sexual intercourse with a person between 10 and 16 years of age). The offender then tried to insert his penis into the victim’s vagina, but the victim screamed and squirmed (attempted sexual intercourse). The offender moved off her and apologised. He then put his penis into her mouth instead and she sucked it (Form 1 s 66C offence): Young at [13].
29․The offender and the victim in Young came from a household where physical and sexual violence were common, and the offender was subject to emotional and psychological abuse from his father (the victims’ grandfather): Young at [5], [11], [21]. It was accepted that the Bugmy principles applied to the offender, and that the applicant was to be sentenced on the basis that he was a child when the offences were committed (he was 34 years old at the time of the sentence): Young at [4], [23].
30․However, the delay in bringing a prosecution meant that, among other things, the offender lost the opportunity to be tried in the Children’s Court and was sentenced as an adult in the District Court: Young at [6], [38]. Due to legislative changes in 2018, some sentencing options were also lost due to delay: Young at [46]-[49]. N Adams J also observed that the delay in prosecution also meant the loss of possibility for the cycle of abuse involving the offender and the victim to be addressed earlier: Young at [44].
31․The applicant had no criminal history at the time of the offences but had an extensive criminal record by the time of the sentence: Young at [18], [45].
32․The trial judge, Haesler DCJ, considered each of the offences to be “individually serious” and involved gross exploitation of a child’s body for personal gratification: Young DC at [13]. The offending also had a significantly negative impact on the victim’s mental health and wellbeing: Young DC at [27]. Haesler DCJ noted that while the fact that the offending occurred in the family home would be a circumstance of aggravation, given the abusive and “dysfunctional” nature of the family the victim could not have treated her home as one of safety as refuge: Young DC at [13].
33․Haesler DCJ ultimately sentenced the offender to an aggregate sentence of three years imprisonment, with the indicative individual sentences being one year and 10 months’ imprisonment for the two counts of sexual intercourse offending, and 1.5 years for the attempted sexual intercourse: Young DC at [36]. This is after applying a 25% discount on account of the plea of guilty, and a parole period of 1.5 years was also imposed: Young DC at [36]-[37].
34․The NSW Court of Criminal Appeal (N Adams J, Bell CJ and Button J agreeing) accepted that the applicant’s subjective case was “overwhelmingly strong”, but the objective seriousness of the offending meant that the threshold of imprisonment was crossed: Young at [56]. It was also accepted at appeal that the trial judge had addressed all relevant matters: Young at [34].
35․However, the NSW Court of Criminal Appeal held that the sentence was manifestly excessive in light of the numerous impact of delay, the fact that the offender was 14 when the offending commenced, the context in which the offences were committed, Bugmy factors, and that the offender was also a victim at the time: Young at [66], see also [63] (N Adams J). The Court reduced the aggregate sentence to 2 years’ imprisonment, with a non-parole period of 16 months. The indicative individual sentences were also accordingly reduced to 1 year and 3 months (sexual intercourse) and 1 year and 2 months (attempted sexual intercourse): Young at [71]-[72].
36․Counsel for the offender submitted that the age difference between the victim and the offender in Young was similar. Counsel also noted that the circumstances of the offending were also similar, although not the same. For one, the offending in Young only involved one victim.

37․The offender also relied on the case of AQ at the February 2024 hearing. As noted above, AQ involved a young person pleading guilty to offending against his sister: AQ at [2]. The charges were incest with a person between 10 and 16 years of age and to committing act of indecency in the presence of a person between 10 and 16 years of age. These offending carried a maximum penalty of 15 and 10 years imprisonment respectively: AQ at [1]-[2]. The offences were also “course of conduct” charges: Crimes Act s 66B, cited in AQ at [2].
38․The offender performed repeated acts of sexual activity on the victim between March 2018 and March 2020, when the victim was 9-11 years old and the offender was 13-15 years old: AQ at [5]-[7]. The sexual activity always occurred in the offender’s bedroom. Mossop J noted that the activity included the victim performing oral sex on the offender and the offender rubbing the victim’s vagina, skin on skin: AQ at [5]. On some occasions, the sexual activity also included the victim masturbating the offender’s penis to ejaculation: AQ at [5]. When this occurred, it took place after the oral sex but before the offender touched the victim’s vagina. The offender would then remove his ejaculate with tissues: AQ at [5]. This activity is also a sequel to similar incidents of sexual activity in NSW, which Mossop J noted provided background to the offending: AQ at [3]-[4].
39․The victim initially stated that she could not recall the number of times the sexual activity occurred. The victim noted that it occurred about once or twice per week over a two-year period. The victim said there were two or three gaps in this period, of about one or two weeks each, in which no sexual activity occurred. The victim said that she performed oral sex on the offender about half the times that the offending occurred: AQ at [6].
40․The last time the offending occurred was on 24 March 2020, when the victim was 11 years old and the offender 15: AQ at [7]. The victim was walking in the hallway towards her bedroom when the offender grabbed her by the arm. The offender then used a medium degree of force to move her into his bedroom and then closed the door: AQ at [7]. The offender told the victim to suck his penis. The victim refused, and the offender told her to do it and get on the bed. The offender used his hands and some force to move the victim onto the bed. While the victim sat on the bed, the offender stood in front of the victim and pulled down his pants before putting his penis in her mouth. The victim moved her head back and forth while performing oral sex on the offender for approximately two minutes, stopping because the offender said “[t]hat is enough”. The offender then rubbed the victim’s vagina, skin on skin, for a few seconds. The victim asked to leave and the offender stopped: AQ at [8].
41․Mossop J noted that each count fell within the “mid-range” of objective seriousness of the offending: AQ at [13]. Mossop J also noted that the offending does not have a clear explanation, but involved “exploitative self-gratification” at the expense of the offender’s victim and abuse of power arising from their age difference: AQ at [33]. Mossop J also observed that the victim is likely to suffer long-term psychological consequences from the offending, although how significant was not clear at the time of sentencing: AQ at [37].
42․Mossop J noted that the offender’s risk of reoffending by Child and Youth Protection Services assessed his overall risk of reoffending as low: AQ at [14]. The offender also reported that he has never used alcohol or illicit drugs, and otherwise had a relatively normal childhood: AQ at [18], [22], see also [17]. The offender also had no criminal history: AQ at [28]. The PSR noted that the offender he acknowledged his offending was serious and has both apologised to the victim and expressed a desire to “apologise to everyone”: AQ at [25]-[26]. Mossop J ultimately concluded that the offender’s prospects of rehabilitation are very good, that the offender has made good progress with psychological counselling he has received and recognised the wrongfulness of his conduct: AQ at [33].
43․Mossop J nevertheless noted that the seriousness of the offending demanded a custodial sentence. His Honour imposed a sentence of imprisonment of 6 months for the count of incest and 3 months’ imprisonment for the act of indecency, after the application of a discount of 25% from 8 months and 4 months respectively: AQ at [34]. Ultimately, however, Mossop J wholly suspended the sentence in light of the low risk of reoffending and as required the purpose of promoting rehabilitation of a young offender: AQ at [34].
44․Counsel for the offender noted that the difference between the offender and the offender in AQ was not remanded in custody, and as such was able to undertake what counsel characterised as effective psychological counselling.

DPP (Vic) v Pagani (a pseudonym) [2022] VCC 2013 (Pagani)

45․The first case further tendered at the May 2024 hearing is Pagani. The offender was convicted after a jury trial of six counts of incest, contrary to s 44(4) of the Crimes Act 1958 (Vic) in force at the time of the offending: Pagani at [1]. The maximum penalty for the offending was seven years’ imprisonment: Pagani at [19]. Four of the charges were for offending against the offender’s sister between October 1997 and February 1999. The remaining two were for offending against his brother between March and September 1998: Pagani at [1]. The offender was between 15-16 years of age at the time: Pagani at [1].
46․The facts of the offending were as follows in Pagani were helpfully set out by Judge Chettle as follows (at [2]-[8]):
(a)In 1997, the offender’s sister was in a bedroom of the family home. The offender’s sister was lying on a bunk when the offender entered the room. He pulled her pants down, removed his pants and climbed on top of her, thrusting his penis inside her vagina. The victim experienced pain, pushed the offender away, and made a noise because of the pain. The offender pulled his pants up and left the room. The victim went to the toilet and observed blood on the toilet paper after she wiped herself. At the time, the victim was 11 and the offender was 15.
(b)The offender went into the closet where his sister was hiding in a game of hide-and-seek with him. The offender pulled the victim’s pants down and then pushed his erect penis into the victim’s mouth and made her perform fellatio. The offender shortly after pulled his penis out of the victim’s mouth, pulled his pants back up and left.
(c)In a further game of hide-and-seek, the offender again entered a closet where his sister was hiding and made the victim perform fellatio. This time, the offender ejaculated in her mouth. After the offender left the closet, the victim went to the bathroom to spat out what was in her mouth and washed it out.
(d)In a later game of hide-and-seek, the offender again located the victim in the closet and made her perform fellatio. The offender stopped after 30 seconds.
(e)In 1998, the offender was playing football with his brother when the offender tackled him to floor. The offender pulled his pants down and pushed his penis into the victim’s anus. The victim felt pain and went to call out. However, the offender put his hand over the victim’s mouth. After this, the offender got off him like nothing had happened and departed. At the time, the brother was 8 years old, and was younger than the first victim.
(f)In a subsequent occasion, the offender again tackled his brother after the victim noticed the offender’s erect penis. The offender put his penis in the victim’s mouth. The victim sucked the offender’s penis until the offender ejaculated in his mouth. The victim pulled his head away and the ejaculate went on the victim’s face as well. The offender had been pushing his head back and forward with his hands. The victim was on his knees and the offender was standing up.

47․Judge Chettle observed that both victims have been “permanently and deeply scarred” by the offending: Pagani at [11]. The offender also refused to acknowledge and admit the offending despite the jury verdict, although Judge Chettle accepted that this did not aggravate the offending and merely denied “the sentencing benefit” attached to remorse: Pagani at [13]-[14], [16]. While the offending were “abhorrent and disgusting”, Judge Chettle noted that the offender was himself a child at the time of the offending (he was 40 years old at the time of sentencing) and had no further criminal history or subsequent offending: Pagani at [15]. The offender had therefore “demonstrated total rehabilitation”: Pagani at [16].
48․Judge Chettle took into account Victorian authorities on sentencing offenders who were children at the time of the offending and not prosecuted until years after the offending: Pagani at [17]-[18]. The offender was sentenced to 1 year imprisonment for the offending against his sister, to be served concurrently. The offender was sentenced to 1 year imprisonment for the offending again his brother, served cumulatively upon the sentence on Charge 1 against the first victim. This yielded an effective sentence of 2 years’ imprisonment for all of the offending, to be totally suspended: Pagani at [20]. Judge Chettle also noted that had the offender been 3-4 years older when the offending occurred his Honour would have imposed a substantial custodial sentence to be served immediately: Pagani at [19].

DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106 (Dunlea)

49․The second case is DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106 (Dunlea). The offender pled guilty to one count of incest, being a representative charge of two occasions of penal-vaginal sex: Dunlea at [1]. At the relevant time, the maximum penalty was 5 years’ imprisonment: Dunlea at [15]. The victim was the offender’s younger sister, and the offending occurred between 1 January 2012 and 4 February 2014. At the time, the offender was 16-18 years old and the victim was 10-12 years old: Dunlea at [2].
50․The offending happened after the offender broke up with a girlfriend. The offender entered the victim’s room, started talking to her, and then engaged in penile-vaginal sex. The offender screamed for help as she refused to have intercourse, but the offender persisted. The offender told her that this was just something brothers and sisters did: Dunlea at [10]. In an interview with the police, the victim also detailed another occasion of penile-vaginal sex when the offender came into her room. The offender held her down, holding the victim’s chest in the offender’s hand, and started rubbing her vagina: Dunlea at [11].

51․Upon being interviewed by the police in March 2014, the offender admitted to having penile-vaginal sex on one occasion only. At the end of the interview, the offender noted that he could not remember having sex with the victim but conceded that it had happened if the victim said it had: Dunlea at [12]. The offender also noted to smoking 7 grams of cannabis per day up until victim made the allegations, and that this had affected his memory: Dunlea at [13].
52․Judge Lawson noted that the offending is “very serious”, and has had an extremely-traumatic and long-lasting effect on the victim, the victim’s mother, and the extended family. The offending was also aggravated by multiple features, including that the offender had not used a condom, taken the victim’s virginity, and had infected her with herpes: Dunlea at [14], [16]. Ultimately, Judge Lawson considered the offending be a “mid-level example” of the offence of incest: Dunlea at [46].
53․The offender had apologised and acknowledged the serious nature of the offending and the impact it had on the victim and his extended family: Dunlea at [21]. The offender’s parents separated when the offender was in early teens. The offender did not have a good relationship with his father, who was described as having issues with alcohol, although his father now supports him: Dunlea at [24]. The offender had no relationship with his mother since the disclosure of the offending, and he had to remove himself from her care: Dunlea at [24], [28].
54․The offender was bullied at school and had learning difficulties (dyslexia and poor literacy skills): Dunlea at [25]. The offender also had long-term history of cannabis use since he was 14 (he was 22 at the time of sentencing), and Judge Lawson noted that the offender admitted to using other drugs and previous problematic use of alcohol two years prior to sentencing: Dunlea at [23],[27]. The offender did not have a criminal history apart from traffic offences due to be finalised the day after the sentencing: Dunlea at [29], [34].
55․Judge Lawson also took into account the delay in bringing the matter: Dunlea at [32]-[33]. Judge Lawson also accepted that the offender’s plea of guilty recognised an acceptance of wrongdoing and remorse: Dunlea at [34]-[37]. Judge Lawson was satisfied that the offender was not suffering from a major depressive disorder, although accepted that the offender had suffered from depression and some suicidal ideation since the charges were laid: Dunlea at [38], [41]-[42].
56․Ultimately, Judge Lawson sentenced the offender to a three-year community correction order: Dunlea at [61]. But for the plea of guilty, Judge Lawson noted that the offender would have been sentenced to a term of imprisonment of 3 years, and will serve 18 months: Dunlea at [65].

ANNEXURE: RELEVANT SENTENCING GRAPHS

[2024] ACTSC 221

26 July 2024