R v AH

[2019] NSWDC 678

District Court

New South Wales

Medium Neutral Citation:	R v AH [2019] NSWDC 678
Hearing dates:	14 August 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted. Make a finding of special circumstances. The offender is sentenced to an aggregate term of imprisonment for a period of 12 years with a non-parole period of 8 years
Catchwords:	CRIMINAL LAW – Sentence – Aggravated sexual intercourse with a child between the ages of 10 and 14 years – Aggravated indecent assault – Aggravated incitement of an act of indecency – Use child pornography – Producing child pornography – Under authority of offender – Totality – Form 1
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	R v Gent [2005] NSWCCA 370 R v Todd’s (1982) 2 NSWLR 517 .
Category:	Sentence
Parties:	The Crown AH
Representation:	Counsel: B O’Reilly – Crown B Hussey – Offender   Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2008/8475

Judgment

1. HIS HONOUR: AH is before the Court for sentence today in relation to twenty offences averred on an indictment and a number of other offences on a Form 1 which are to be taken into account on count 6. On 14 August 2019 at the District Court at Nowra I heard the sentence proceedings and then the matter was adjourned to today for me to announce the reasons and sentences to be imposed on AH. Given circuit commitments since the date of the hearing and other commitments since I have been back at the Downing Centre. These remarks should be understood to have rather the character of an ex‑tempore decision rather than the full reserved decision although I have given all the relevant matters anxious consideration. The matters that are faced by AH are counts 6 and 16 being offences of aggravated sexual intercourse with a child between the age of ten and 14 years in breach of s 66C(2) of the Crimes Act for which is provided the maximum penalty of 20 years imprisonment. Counts 2, 3, 4, 5, 7, 8, 12, 13, 14 and 18 are offences of aggravated indecent assault in breach of s 61M(1) of the Crimes Act for which is provided a maximum penalty of seven years imprisonment with a standard non‑parole period of five years. Counts 1, 9, 15 and 17 are offences of aggravated incitement of an act of indecency in breach of s 61O(1) of the Crimes Act for which for which is provided a maximum penalty of five years imprisonment. Counts 10 and 19 are offences of use child for pornography in breach of s 91G(1)of the Crimes Act for which are provided maximum penalties of 14 years imprisonment. Counts 11 and 20 are offences of producing child pornography in breach of s 91H(2) of the Crimes Act for which is provided a maximum penalty of ten years imprisonment. In relation to each of the matters I will have regard to the maximum penalty as a guidepost or benchmark for comparison with the worst possible case in the way that it is contemplated by the authorities and I will also have regard to the standard non‑parole period where relevant in the way contemplated by the authorities.

2. On the Form 1 which attaches, as I have said, to count 6 are sequences 1, 11 and 14 which are offences of use a child for pornography in breach of s 61G(1) of the Crimes Act which on indictment is provided a maximum penalty of 14 years imprisonment and sequences 2, 12 and 15 which are offences of producing child pornography in breach of s 91H(2) of the Crimes Act for which on indictment is provided a maximum penalty of ten years imprisonment. It is inevitable, consistent with legislation and authority, that taking those matters into account on the Form 1 will mean that the sentence indicated for count 6 is higher than would otherwise be the case if the penalty reflected only the offending involved in that singular count. I use the term, “sentence indicated” advisedly because I have determined in due course as was contemplated during the sentence proceedings without opposition from either party that I will ultimately be imposing an aggregate sentence on AH. It flows from that, that when I indicate sentences in relation to each of the offences those indicative sentence will have applied to them the relevant utilitarian discount which is an issue to which I will return. Further, for the s 61M offences, given that there is a standard non‑parole period provided, I am obliged to announce an indicative sentence that contains not only a head sentence but the non‑parole period. The range of AH’s offending is between 1 January 2006 and 31 December 2006. In almost all but not all of the offences the victim of the offences was WT and in relation to a limited number of offences his brother LT was the victim.

3. At the relevant time of the offending LT was ten years old, WT was either 11 or 12 years old and the offender was 19 or 20 as the case may be. He is now 33 years of age and I will return to that issue in due course.

4. The facts in the matter are agreed between the parties and I propose to read them on to the record before dealing with my assessment of the objective seriousness of the offending. The offender was introduced to the T family by a family member in July 2003 at a family function. The T family consisted of Mr and Mrs T, JT, WT, LT and RT. After the initial meeting they did not meet again until a barbeque in September 2005. At this second meeting the offender made friends with JT. They discussed their love of camping and the offender sent JT a gift, a Driza‑Bone coat and he remained in contact with the family.

5. In December 2005 the T family moved to Orient Point from Queanbeyan. In the period after the move in January to May 2006 the offender continued contact with the family and travelled down to their property on a regular basis. He would often bring gifts for family members. He became a close and trusted friend of Mr and Mrs T. The offender led them to believe that he was undertaking a child psychology degree at Canberra University. He would offer the parents advice in relation to their children’s behaviour and from time to time they would seek advice from him about any problems they encountered with their children.

6. The offender was in fact not enrolled in any such course. On one occasion the offender took JT to a firework display in Canberra. On 26 May 2006 the T family moved from their Orient Point home to a property at The Angle which is near the New South Wales, ACT border at Tharwa. The offender who was then living in Canberra began to visit the family on a weekly basis. When visiting the property he would go for walks with the victims and their siblings. JT denies any sexual contact and is not the subject of any charges although he describes sharing a bed with the offender on a visit to the offender’s home and on another occasion at his own family home. He also talks about a prank that was instigated by the offender which involved placing adult male homosexual pornography in the bag of his younger sibling, the principal victim WT, when WT attended a school camp. The pornography was discovered by a teacher and WT was disciplined by the school.

7. The offender offered to take WT away for the weekend to counsel and to provide advice to him about the pornographic material located in his bag on the school trip. The weekend away was to Kangaroo Valley where the offender committed offences against WT. The parents had indicated that the offender was nearly always carrying his camera with him and would often go on walks with the children. There are other occasions when the offender went camping with a single child of the family. Mrs T would sometimes drop them off in a bush area where they would stay for a night or two. Mrs T would return to pick up the offender and the relevant child.

8. In December 2016 WT disclosed a number of matters to his mother which led to her contacting the police in the ACT. A search warrant was executed on the offender’s premises and a large quantity of computer equipment was seized. This was analysed and found to contain over 10,000 images and movies which contained child pornography. Some of these images related to each of WT and LT. The offender was charged with offences relating to the possession of child pornography in the ACT jurisdiction.

9. In 2007 police from the ACT interviewed WT and he made allegations of sexual contact between himself and the offender. LT was also interviewed and he outlined an allegation concerning himself and the offender. This material was then provided to New South Wales and a further investigation resulted. In some of these charges in March 2008 the offender was bail refused as a consequence of those matters and remained in custody from 10 March 2008 until 22 May 2008 when he was granted and admitted to a Supreme Court Bail. He then returned to live with his mother in the Australian Capital Territory in accordance with his then bail conditions. Whilst on bail in relation to some of these matters the offender was arrested by the ACT police in relation to further charges and he has remained in custody ever since, first in the ACT serving sentences, to which I will return, until he was extradited to New South Wales at the conclusion of those terms on 8 December 2017.

10. In April 2018 WT made a further statement to the New South Wales Police in which he made further allegations of sexual contact between himself and the offender during the period of the initial charges.

11. I am now going to recite the facts in relation to count 1 which is an allegation of inciting an act of indecency in breach of s 61O together with two of the matters he used child for pornography and produce child pornography which are on the Form 1. There are offences that were committed at Crookhaven Heads in a period between 1 January 2006 and 26 May 2006. The offender attended the T family’s Orient Point home on several occasions. He brought a pushbike with him and spent time with WT and on occasion his other siblings riding and walking in the nearby area. WT went with the offender to the nearby Crookhaven Heads Lighthouse between January and May 2006. Around this time WT was being bullied at school and the offender suggested that he take the complainant for a drive to offer him some counselling. As the offender’s parents believed the offender to be studying child psychology and had been a mentor to WT they agreed for this to happen. The offender drove WT to an isolated area adjacent to the Crookhaven Lighthouse where he asked WT to remove his pants. WT complied with this request and removed his pants and underwear. The offender asked the complainant to masturbate himself. WT complied with this request and masturbated himself. That is the facts in relation to the incite matter. As WT was masturbating the offender took several photographs of this act. Those actions constitute the offences of use a child for pornography and produce child pornography that are part of the form 1 offences. WT eventually stopped masturbating and put on his clothes before returning to the family home at Orient Point.

12. Police have examined computers seized from the offender’s home but have not been able to locate those particular photographs amongst the images recorded.

13. Now I am going to go on to some offences that were committed at the mudflats between 1 January 2006 and 26 May 2006. These constitute the facts for counts 2 and 3 each being aggravated indecent assaults of a child on the age of 16 years in breach of s 61M(1). During the period between 1 January 2006 and 26 May 2006 WT went to an area known as the mudflats which was very near to the family home. On these occasions the offender and WT would be by themselves and would go to an area which was described as the cubby house being a homemade structure. When they were at the cubby house the offender would provide WT with cigarettes and show him pornography. The offender would often take photographs of WT on these visits to the cubby house. WT recalls occasions when the offender asked him to watch pornography and masturbate the offender. WT is able to particularise two occasions when he agreed to requests by the offender for him to be masturbated by WT. On one occasion WT was masturbating the offender with his hand when they were interrupted by a young boy that approached the cubby house. They are the facts for count 2.

14. WT recalls a second occasion of him agreeing to masturbate the offender and he remembers that event because he was smoking cigarettes that had been given to him by the offender and was psychically sick while he was masturbating the offender. They are the facts in relation to count 3.

15. I am now going to recite facts that relate to the Easter weekend of 14 to 17 April 2006 which offences were committed at Kangaroo Valley. WT and the offender went camping together in an area of Kangaroo Valley on the Easter weekend of 2006. Mrs T recalls taking them off to an area in Kangaroo Valley and dropping them off for the weekend. This is the trip that arose at the suggestion of the offender after the “prank” involving the planting of pornographic material in WT’s bag during the school camp.

16. After they were dropped off at Kangaroo Valley the offender and WT hiked some distance into the bush and set up a two-man tent in an isolated area. On Easter Friday which was 14 April 2006 in the evening the offender was sitting around the campfire with WT, the offender asked WT to remove his pants which he did. He then got on to his knees and placed his right hand on WT’s penis and began masturbating him. That is the facts that relate to count 4 which is the aggravated indecent assault of the child in breach of s 61M(1). Later on, as a result of being requested to do so, WT placed his hand on the exposed penis of the offender and commenced to masturbate him. They are the facts in relation to count 5 which is an aggravated indecent assault of a child also in breach of s 61M(1). This continued for some time before they both stopped masturbating each other. The offender then spoke to WT discussing the idea of experimenting new sexual techniques with male friends before trying them with females. The offender asked WT to remove his pants and his underwear, WT did so at the request of the offender, the offender then when to where WT was seated and commenced performing fellatio on him. This lasted about 20 seconds before WT pushed the offender’s head away. They are the facts in relation to count 6 which is an aggravated sexual intercourse with a child being under the authority of the offender in breach of s 66C(2). The offender apologised to the complainant for making him feel uncomfortable and the two of them went to bed in the tent for the night.

17. On Easter Saturday which was 15 April 2006 the following morning, WT and the offender got up and had some breakfast. After they had breakfast the offender asked WT if he wanted to experiment sexually on him and they began talking about WT’s brother coming on a camping trip with them on future occasions. At some point the offender began to masturbate WT with his hand. They are the facts that relate to count 7 which is an aggravated indecent assault of a child under 16 years in breach of s 61M(1). Later on WT masturbated the offender with his hand, being the facts in relation to count 8 which is an aggravated indecent assault of a child under the age of 16 years in breach of s 61M(1). Both of those activities continued until both WT and the offender ejaculated.

18. On Easter Sunday which was 16 April 2006 the offender gave WT some cigarettes and alcohol and a pornographic magazine. WT began smoking one of the cigarettes and around this time the offender asked WT to masturbate himself. WT agreed to the request and commenced masturbating himself while smoking a cigarette. They are the facts that relate to count 9 being an aggravated incitement of an act of indecency of a child being under the authority of the offender in breach of s 61O(1). As this was happening the offender commenced filming these actions, he was heard to encourage the complainant to continue both of these actions. Police later seized a hard drive which contained this footage. WT is seen to be getting very light headed from the cigarettes. The offender asked WT to begin masturbating. WT had been given the pornographic magazine by the offender and carried out the offender’s instructions. The offender also made a number of short video movies of WT masturbating. During the search of the offender’s computer equipment copies of these movies were located. WT is clearly seen masturbating while looking at a magazine. He is also taped while urinating. The sequence involves masturbation and urinating across a period of about five minutes and thirty-nine seconds. Those are the facts that relate to count 10 using a child for child pornography and count 11, production of child pornography.

19. Later that same weekend, still on Easter Sunday, the offender and WT commenced packing up the campsite. At one point the offender got on his knees and began masturbating and he asked WT to touch his penis. WT refused and walked away. A short time later he returned and the offender again asked him to touch his penis. On this occasion the offender was talking about giving WT some gifts that included a CD. WT agreed and commenced masturbating the offender with his hand. He continued doing this until the offender ejaculated on to his own and the hand of the offender. They are the facts that relate to count 12 being an aggravated indecent assault of a child under 16.

20. Now I am going to enumerate the facts in relation to offences that occurred at The Angle between 26 May 2006 and 1 December 2006.

21. On one occasion the offender was at WT’s house at The Angle, it was sometime during the period that I have just indicated. WT and the offender went for a walk around the property and located a small cave‑like area in an isolated place away from the T family home. The offender asked WT if they could do as they had done over Easter. WT agreed and pulled down his pants and sat on a rock. The offender got on his knees and placed his hand on WT’s penis, he masturbated him for some time before stopping. They are the facts that relate to count 13 which is an aggravated indecent assault of a child under 16 in breach of s 61M(1). After this incident the two of them returned to the T family home.

22. On another occasion the offender was again visiting the T family home at The Angle. Just before his arrival there had been a large storm that had left the fields covered in rubbish The offender suggested that he and WT go out into the fields to collect rubbish. They walked into the fields and at some stage they entered a disused chicken coop. The offender started a conversation about sexual experimentation. At some point in the conversation the offender pulled down WT’s pants and took hold of his penis. He then commenced to masturbate WT. He continued doing so until he heard Mrs T call out to them. They are the facts that relate to count 14, an aggravated indecent assault of a child under 16 in breach of s 61M(1). WT got dressed and they walked back to the family home.

23. On a further occasion the offender was again visiting WT’s premises at The Angle property. Around this time WT had been involved in arguments and fights with his siblings. The offender suggested to Mr and Mrs T that he would take WT for a walk to stop the fighting. The pair of them walked to a hill area adjacent to the house. At some point the offender requested WT to remove his pants and to masturbate; WT complied with that request. They are the facts that account for count 15, being inciting of an act of indecency in breach of s 61O. While WT was masturbating, the offender took a number of photographs of him. They are the facts that relate to using a child for pornography and production of child pornography that attach as two of the four offences on the Form 1 to be taken into account in relation to count 6. After this took place WT put his clothing on and the two of them returned to the family home.

1. On a further occasion the offender was again visiting WT and his family at the family property at The Angle. He recalls being out walking with the offender and during that walk they made their way to one of their old campsites. At the campsite the offender took a number of photographs of WT. At some point he asked WT to remove his pants and WT did so. The offender took hold of WT’s penis and rolled him onto his stomach. The offender placed his hand between WT’s legs and slid two fingers into WT’s anus. This caused WT some pain and discomfort. WT was able to turn away from the offender who then removed his fingers from the inside of WT’s anus. WT saw the offender smell his two fingers. They are the facts that account for count 16, which is the second offence of aggravated sexual intercourse, child being under the offender’s authority in breach of s 66C(2). WT said, “That’s fucked. Don’t ever do that again”. The offender laughed and said it was just a joke. WT’s recollection that is one of the last times that there was any sexual contact between he and the offender.

2. The very last occasion on which the offender and WT had any sexual contact took place again at The Angle. On this occasion the offender and WT went for a walk on the hill adjacent to the property. They walked away from the T family home to an isolated area. Once they were alone in that area the offender asked WT to remove his pants and to start masturbating. WT complied with that request, removed his pants and commenced masturbating himself. They are the facts that account for count 17, being an aggravated indictment of an act of indecency in breach of s 61O. At some point the offender took hold of WT’s hand and moved it to the offender’s exposed penis. WT continued masturbating the offender. They are the facts that account for count 18, being an aggravated indecent assault of a child under the age of 16 years in breach of s 61M(1). During this incident the offender took a number of photographs of WT with his pants down and while masturbating and those facts relate to the further matters of use child for pornography and produce child pornography that are on the Form 1 attached to count 6.

3. I am now going to recite facts that relate to LT which are offences that were committed between 1 May 2006 and 31 December 2006, again at The Angle.

4. LT was ten years old at the time of the relevant offences. LT recalls camping on an occasion within the time range that I have indicated. He was camping with a couple of his siblings and a younger cousin. The offender attended the family home where Mr and Mrs T told the offender where the children were out camping. The offender stayed for a while at the family home watching a movie with Mr and Mrs T and then told them that he intended to go and visit the children. The parents tried to persuade him not to attend, but after some discussion he walked from the house to the camping area. The parents watched him head off in the direction of where the children were camping.

5. The next morning LT was feeling unwell and went to the toilet in bushland near the campsite. He defecated and used leaves to wipe his bottom. The offender was in the area and took a number of graphic photographs of LT. These images clearly show LT’s anus and genitals as well as faeces. They are the facts that account for count 19 which is using a child for pornographic purposes. Later in the morning the offender spoke to the other children at the camping area. Mr and Mrs T woke up the next morning to find that the offender had not slept in the house as expected.

6. When the offender was arrested by police they seized and examined his computers and located 25 photographs of LT on one of the hard drives. In terms of the facts for count 20, which is produce child pornography, those photographs consisted of eight photographs of faeces on the ground, two photographs of LT wiping his bottom with a leaf, 12 photographs of LT’s anus, scrotum and penis, including LT facing forwards and him holding open his backside. And in other photos pushing his scrotum and penis backwards, away from his body, together with three photographs of LT leaning forward with his pants down and his bottom exposed. One of those photographs shows LT looking back towards the offender and LT is smiling in that photograph.

7. The careful written submissions of both of the parties arrive at a fair degree of concordance about the way in which the Court should assay the objective seriousness of the offending. This is necessarily a clinical exercise that involves comparing the offending conduct on each occasion with the range of conduct that can make out the offence. This exercise should not be seen in any way to underestimate the Court’s view about the seriousness of the whole passage of the offending or, indeed, the effect on both of the victims.

8. Across all of the matters, it is accepted that the offending took place across a calendar year and cannot be seen as isolating acts of offending. In each of the matters that involve indecent assaults there is skin on skin contact between the offender and WT which makes the offending objectively more serious than were that conduct not engaged. In relation to two counts of indecent assault, ejaculation was involved, and that necessarily makes the objective seriousness of those counts more serious. Some of the offences have as an element that they were aggravated by WT being under the authority of the offender, and any breach of trust that is occasioned by the offending will not involve double counting.

9. All of the offences have both aspects of planning and aspects of spontaneity and opportunism, but they were committed against the backdrop of the offender developing the trust of the T family generally and had the effect, over time, for WT in particular and LT to a lesser degree, simply because of the smaller number of offences, of normalising aberrant conduct. One of the distasteful features of the matter that has left a profound mark on WT is that he found himself acting in what at the time seemed to be a voluntary way because of the trust that he held in the offender and the way that the offender normalised the kind of behaviour to which he was subject.

10. Those things said, in relation to each of the s 61O offences, taking into account the age of the victim and the relatively brief passage of offending, each of those matters fall at the midrange of objective seriousness. But for count 8 and count 12, which are the indecent assaults that involve ejaculation, each of the other matters fall at the midrange of objective seriousness, each of the other s61M offences. Each of count 8 and count 12 are above the midrange of objective seriousness because of that additional feature, but do not go into the high range of objective seriousness.

11. Counts 10 and 11 involve the filming of WT at the time that he was masturbating himself and being encouraged to do so by the offender, and involved a filming of WT urinating. Taking into account that the filming took place for almost six minutes, that offending falls at the midrange of objective seriousness. In relation to the two other matters on indictment of the same kind, where LT is the victim, that is count 19 and count 20, LT was even younger, at ten years, as opposed to WT at eleven years. Given the nature of the items that were taken, including encouraging, by inference, LT to smile while he was exhibiting himself, including that there were photographs of defecation and faeces, those matters fall above the midrange of objective seriousness. Happily, in relation to these offences of child pornography, there were not many of the features that identified in Minehan’s case as making more aggravated the offending, that is, the dissemination of the material and so on.

12. In terms of the two aggravated sexual intercourse offences it is accepted that any type of intercourse of a child of tender years is a heinous offence. Regrettably there is an horrific range of behaviour that can be caught by this offence. In relation to count 6, I take into account that the sexual intercourse, although very damaging to WT, consisted of the offender fellating WT and for a relatively short period and did not involve any insertive conduct by the offender, if I can use that term. I take into account that the offender desisted at the time WT pushed his head away. That offence falls below the midrange of objective seriousness but certainly doesn’t achieve the low range of objective seriousness.

13. The objective seriousness in relation to count 16 is very slightly below the midrange of objective seriousness. It involved a degree of intrusion, that is two fingers being inserted, without any consent, to WT’s anus. I take into account that the offender desisted at the time that WT moved away from him, but the objective seriousness is made more serious by the offender smelling his fingers after that happened and making light of the incident.

14. I will take into account the various ways that I assess the objective seriousness when I come to fix the indicative sentences and take into account as part of the instinctive synthesis to work out what is the appropriate penalty in these matters.

15. WT, when the matter was before the Court in Nowra, delivered his victim impact statement. It spoke eloquently of the damaging effects of this conduct on him. WT explained the myriad ways in which he has been affected by the intrusions and invasions of the offender during that period when he was entitled to be treated with respect.

16. Both the legislature, by the fixing of the appropriate maximum penalties and the intermediate courts of appeal have repeatedly stressed that the community rightly abhors either physical sexual misbehaviour against children or the use of them in the production of child pornography. Increasingly it is understood by courts and the community the corrosive effects of this kind of behaviour. Ironically, when I come to some things in AH’s prehistory he, of all people, should understand how damaging this behaviour can be. It is now understood sometimes that those that were offended against become offenders, but happily I am able to indicate that WT seems to have applied himself as conscientiously as he can to making good his recovery and not repeating a pattern made out by this particular offender.

17. I want to now move to some matters that are personal to AH.

18. As I have indicated the offender was 19 to 20 years of age at the time of the offending. He had no criminal record. It is recognised in the authorities that good character will be of less weight in a sentencing exercise that involves sexual trespass against children than some other types of offending. Additionally I take into account what the Court of Criminal Appeal said in R v Gent [2005] NSWCCA 370 in terms of that aspect, having less weight when one considers offences that relate to child pornography.

19. I give some limited weight to the fact that the offender was a relatively young man and had no criminal antecedents at the time of this offending. Against that, when he came to the attention of the authorities in the ACT and was sentenced for related matters, including some matters in which WT was the victim, he would have been sentenced then as a person with no prior criminal convictions and had an advantage to him because these matters were then listed for trial.

20. The offender had a very sad family history. He and his parents initially lived in Darwin. The marriage of the parents foundered and in the last year of primary school he was sent to a boarding institution in Southport in Queensland, remote from both his parents as far as I understand it.

21. Refshauge J in the ACT Supreme Court in sentencing the offender for offences committed later in time than these offences was persuaded on the balance of probabilities that the offender had been the subject of serious sexual abuse as a juvenile although the offender has not given evidence before me. Taking into account the findings of that Court, the net of all the material in the psychological assessments, a detailed submission by this offender to the Royal Commission into Institutional Responses to Child Sexual Abuse, I similarly am prepared to make a finding that the offender was subject to significant and sustained sexual abuse both by adults and older students for a period from when he was about nine years of age until he was 16 years of age. It is clear he suffered greatly during that time, but in the strange psychological way of these things it would seem that those formative sexual experiences for him, although abusive, fixed his sexuality to mean that male people who are not yet adults remain sexually attractive to him.

22. All the material suggests that the offender has applied himself as assiduously as he could to his rehabilitation during the long period that he has been incarcerated in the ACT. Some of the steps that he has taken towards his rehabilitation, such as tertiary education, have been suspended upon him being extradited back to New South Wales and now being on remand.

23. I give significant weight to what Thabile Twala, registered psychologist, has to say about the offender. That psychologist was engaged with him in the RUSH program while he was in custody in the ACT and remains supportive of the offender. That author describes what is referred to as “relentless commitment” towards his rehabilitation in undertaking various courses.

24. Dr Wayne Reid is a clinical neuropsychologist and clinical psychologist who assessed the offender at South Coast Correctional Centre this year in relation to these matters. Paragraph 7.2 Dr Reid opines:

“From the history and from my examination it’s difficult to determine [the offender’s] motivation for the sexual assaults when they occurred. Considering his alleged history of prolonged sex abuse during his childhood and the psychological trauma he describes from that abuse while he was at boarding school, from the age of nine to 16, it is likely that this trauma affected the development of his own sexuality and forms a nexus to the offences that he has been charged with. It would appear at that time he has poorly developed social skills and difficulties in relating to similarly aged peers and his sexual orientation would appear at that time and appears to continue to be confused”.

48. Dr Reid assessed the offender as being average to high average intellectual ability. He could not find any evidence of the offender exaggerating psychological symptoms.

49. At the time that AH is ultimately admitted into the community Dr Reid recommends that he receive psychodynamic/psychoanalytically oriented psychotherapy that would be beneficial in helping him to resolve issues related to his psychosexual development, psychological problem and psychological problems arising from this prolonged period of childhood sexual abuse while he was at the boarding school. I consider that that is a valid observation and ought to be taken into account by the State Parole Authority when it comes in due course to consider the conditions on which AH is released into the community.

50. I need to briefly further describe some of the chronology in relation to this matter. As I have indicated the offender was charged in 2008 and spent a period in custody solely in relation to these matters before he was admitted to a Supreme Court bail. His matters were the subject of a listing for two trial dates at a time that he was not acknowledging his guilt. Along the way, he was arrested and bail refused, and ultimately sentenced, in relation to a range of matters, including similar matters in the ACT. Having served out not only the non-parole period but the entire sentence he was extradited back to this State and since the date of his extradition has been held, as I understand it, as a maximum security remand prisoner awaiting sentence.

51. The parties agree that the period that the offender has served relative solely to these matters is from 10 March 2008 to 22 May 2008 and then from the date of his extradition, being 8 December 2017, until today, being 6 September 2019.

52. Given a number of offences were the subject of an ex-officio indictment because of further disclosures made by WT more recently both parties accept in relation to those matters because the offender pleaded guilty early he is entitled to a full 25% utilitarian discount. Those matters are counts 2, 3, 5, 6, 7, 8 and 20. The parties are divided as to the appropriate utilitarian discount as to the balance of the matters. As I have observed, even though the matters did not go to trial they were listed for trial on two occasions and a plea was ultimately entered once the offender had returned to this jurisdiction.

53. Although I accept there was some utilitarian benefit because the matters did not need to go to trial, and accordingly WT and LT did not need to actually give evidence, there must have been a significant period where the authorities were preparing the matters for the listed trial dates which would have included consultation with the victims of the matters as potential witnesses along with other members of the family. Mr Hussey contended for AH for a 15% utilitarian discount and Ms O’Reilly for the Crown contended that the discount should be 10%.

54. Calculation of the utilitarian discount in circumstances where the position is not clear is a matter for judicial discretion. In these matters I have ultimately determined, because of the relevant chronology, that a utilitarian discount in the order of 10% is in order, and for most of the indicative sentences that relate to the older matters, if I can describe them as that, there will be an observable 10% discount to have been applied to the indicative sentences. For certain of the offences, and I do not think I need to articulate them for completeness, there has been a little rounding in favour of the offender so that sometimes the utilitarian discount will be a little bit more than 10%. In none of the matters have I indicated a utilitarian discount that is less than 10%.

55. The Court is obliged to have some regard to delay in the matters, as contemplated by R vTodd (1982) 2 NSWLR 517 . That is, the matters have been standing over this offender’s head for a long time, accepting that they had remained unresolved for the victims for a long time, as well. Although some of the delay can be seen to be attributable to the offender’s conduct, that is committing offences in the ACT and being brought to justice for them, that circumstance has meant that these matters were not able to move forward in any way towards resolution or sentence. I take that into account in an undiscounted fashion, as one of a range of matters to be taken into account.

56. The parties were divided as to when the sentence should commence. It was common ground between the parties that at the very least the offender was entitled to a backdating of his sentence to have regard to the periods of custody that I adverted to earlier. It is impossible to tell whether the ACT parole authorities took into account in some fashion that the offender had other matters to face in this jurisdiction at the conclusion of his sentence there. It is the fact that he was not admitted to parole and served the entirety of a partially accumulative set of sentences there.

57. It seems clear that the parole authorities in the ACT were guarded about his entitlement to be released back into the community notwithstanding that all the evidence shows that he seems to have applied himself to all the programs and courses that were available to him during that sentence, and continued to do so during his parole period being served.

58. It is clear on the material before me, and I accept, that the offender was the subject of a number of serious assaults while he was in custody, of which he complained and there were no proceedings taken in relation to those matters as far as I can observe, notwithstanding there seems to have been some limited investigation of those matters.

48. In relation to the thorny question of what are the offender’s prospects of rehabilitation, because of the pattern of his offending and the observations of Dr Reid about the level of his unresolved pathology I am not able to form the view that he is unlikely to offend. I am guarded about his prospects of rehabilitation just because of the manifest complications on his psychology of the offending against him in turn. He is somebody, in my view, who will need an extended period of supervision when released into the community because he will have been in custody for a very long time as a relatively young man. He is at risk, for that reason, of becoming institutionalised which is not a factor that is protective to the community. I am also determined, apart from those factors, to find special circumstances on the basis of issues of totality. So to be clear, I find special circumstances because he needs an extended period of supervision in the community and he is effectively still serving his first period of imprisonment even though it will be a very lengthy one. Additionally, it is in the protection of the community to avoid him becoming institutionalised. What that means is that I propose to rearrange the relationship between the non-parole period and the head sentence.

49. Mr Hussey, availably in my view, made some submissions that the sentences that I impose today can properly be partially concurrent and partially accumulative on the sentences that he served in the ACT. Ms O’Reilly made the submission that I could properly commence the sentences at the conclusion of AH’s full ACT sentence.

50. I do not think it is a principled exercise of my discretion, in terms of issues of accumulation, to make these sentences wholly accumulative upon the ACT sentences. That is partly because the issues of delay interact in the sense that because this offender offended in two jurisdictions, and a great number of these offences were committed very close to the ACT border, the passage of matters simply mean that he has been unable to have a court consider the totality of his position, which may have happened in a different set of circumstances.

51. I should briefly indicate his ACT record. Accepting that all the offences for which he was punished were committed later in time than these matters, he was variously sentenced in the ACT for possession of child pornography, attempting to pervert the course of justice, sexual intercourse with a child between the ages of ten and 16 years, multiple counts of same, further acts of indecency on a person under the age of 16 years. On 24 November 2010 AH was sentenced in the ACT Supreme Court for a range of the offences that I have described. He was sentenced to an effective term of imprisonment of 16 years and six months with a non-parole period of seven years. Thereafter AH lodged a sentence appeal, as did the Crown against the inadequacy of that sentence. The Crown appeal was dismissed and AH’s sentence appeal was allowed and he was resentenced to eight years’ imprisonment with a non-parole period being fixed. In due course he was sentenced to an effective term of two years and six months’ imprisonment to date from 9 June 2016 in relation to charges of attempting to pervert the course of justice. One appeal against conviction was upheld and he was then resentenced to 18 months’ imprisonment with a non-parole period set.

52. The Court is required to have regard to all the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act, including, importantly in this case, issues of specific deterrence, general deterrence, that is a sentence that would deter other people from behaving in the same way against children, punishment, retribution, denunciation and rehabilitation. Rehabilitation where the offender back then was a relatively young man has slightly greater weight in the sentencing matrix. However in this case because it is now known the offender committed further offences of a similar type while on bail for these matters, specific deterrence, to my mind, has a particular weight. I note that the intermediate courts have observed that offenders against children, for the reasons I have already expressed, are entitled to expect condign punishment.

53. Very sensibly, in my view, Mr Hussey conceded not only that the s 5 threshold had been crossed and also that any sentence of imprisonment would necessarily be one of full-time imprisonment, he availably submitted against the Court imposing a crushing sentence.

54. This is a sentencing exercise that is difficult because things pull in different directions. That is, the seriousness of the offending takes the Court in one direction, the parlous circumstances of the offender’s upbringing and the obvious impact that that has had on his psychology and therefore on his offending and therefore on his victims pulls in another direction.

55. I have ultimately determined to deal with these matters by way of an aggregate sentence and commence the aggregate sentence six years into the period that he served in the ACT.

56. The formal orders will be these. In relation to each of the 20 counts the offender is convicted.

57. I am about to announce indicative sentences that have calculated within them the utilitarian discount and also contemplate, where relevant, the statement of a non-parole period. Although I have had regard to principles of totality in terms of where the aggregate sentence commences relative to the sentence that he was serving in the ACT, having also in mind the periods that he spent in custody solely in relation to these matters, I have had regard to principles of totality in more than a notional fashion in the structure of the aggregate sentence relative to the indicative sentences. In other words, what I have done is undertaken an exercise of partial accumulation in relation to every count to arrive at the appropriate aggregate sentence taking into account all the swings and roundabouts of the case.

58. That is, AH, there is not one of these offences for which an individual bit of the period of imprisonment that I mark out has not been calculated. It should not be seen that there has been an approach where a number of sentences have been aggregated. Each piece of criminal misbehaviour has been marked out by a partially accumulated portion of the aggregate sentence.

59. The indicative sentence after a calculation of 10% discount in relation to count 1 is 21 months. Count 2 after a 25% discount the indicative sentence is 27 months with a 20-month non-parole period. Count 3, after a 25% discount, 27 months with a 20-month non-parole period. Count 4 after a 10% discount, 33 months with a 24-month non-parole period. Count 5 after a 25% discount, 27 months with a 20-month non-parole period. Count 6, taking into account the matters on the form 1, after a 25% discount, six years. Count 7after a 25% discount, 27 months with a 20-month non-parole period. Count 8, after a 25% discount the indicative sentence is 30 months with a 24-month non-parole period. Count 9 after a 10% discount, 21 months. Count 10 after a 10% discount, three years and six months, that’s the use a child for pornography offence. Count 11, produce child pornography, after a 10% discount is two years and eight months. Count 12 after a 10% discount is four years with a three-year non-parole period. Count 13 after a 10% discount is 33 months with a 24-month non-parole period. Count 14 after a 10% discount is 33 months with 24-month non-parole period. Count 15 after a 10% discount, which is an aggravated incitement of an act of indecency, is 21 months indicative sentence. Count 16 which is the further s 66C aggravated sexual intercourse, after a 25% discount the indicative sentence is five years and three months. Count 17 after a 10% discount is 21 months. Count 18 after a 10% discount is three years with a non-parole period of two years. Count 19, which is the use a child for child pornography that involves LT, after a 10% discount the indicative sentence is four years and six months. The final count, which is the production of child pornography, with a 10% discount is three years.

60. As I have indicated I find special circumstances. There is an aggregate sentence of 12 years which is to date from 9 April 2015 and to expire on 8 April 2027. There is a non-parole period of eight years which means the earliest date of release for AH to parole is 8 April 2023. The sentence has intentionally been structured so that if he is released to parole he has four years of supervision in the community which is a protective factor.

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Decision last updated: 20 November 2019