R v BC (No 4)
[2021] ACTSC 119
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BC (No 4) |
Citation: | [2021] ACTSC 119 |
Hearing Date(s): | 27 April 2021 |
DecisionDate: | 11 June 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [160] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against children – act of indecency with person under the age of 10 years – indecency offence committed when offender a child – sexual intercourse with a person under the age of 16 years – offending resulted in pregnancy – rehabilitation – remorse – hardship and effect on offender’s family and dependants |
Legislation Cited: | Children and Young People Act 2008 (ACT) Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes Act 1914 (Cth) s 16A |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; 226 A Crim R 354 Blundell v The Queen [2019] ACTCA 34 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) BC (Offender) |
Representation: | Counsel S Janackovic (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Tu'ulakitau McGuire (Offender) | |
File Number(s): | SCC 192 of 2019; SCC 193 of 2019; SCC 194 of 2019 |
LOUKAS-KARLSSON J
Introduction
On 6 August 2019, BC (the offender) pleaded guilty in the Magistrates Court to the following offence:
(a) One act of sexual intercourse with a person under 16 years of age, contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act), the maximum penalty for this offence is 14 years’ imprisonment (Incident Three).
On 2 February 2021, the offender pleaded guilty before Elkaim J to three further offences:
(a) An act of indecency with a person under 10 years of age, contrary to s 61(1) of the Crimes Act, the maximum penalty for this offence is 12 years’ imprisonment (Incident One).
(b) Two acts of sexual intercourse with a person under 16 years of age, contrary to s 55(2) of the Crimes Act, the maximum penalty for this offence is 14 years’ imprisonment (Incidents Two and Four).
The offender appeared before me on 27 April 2021 for sentence.
Agreed Facts
A statement of agreed facts was tendered by the prosecution. What follows is a summary of the facts relating to the offences.
The victim, LC, and the offender are cousins. Following the separation of her parents in 1997, the victim resided with her mother and her younger brother. The victim and her brother would regularly spend weekends with their father and their grandparents elsewhere in Canberra.
During these weekend visits, the victim would see the offender at addresses in Fisher, their grandparents’ home, and the home of the victim’s uncle and an address in Curtin of the offender’s father. From 2002, the offender began to engage in sexualised conduct towards the victim. The victim did not tell anybody about this conduct, as she was confused and was unsure what was happening and why it was happening.
Incident One (CH19/482)
On 2 October 2004, the offender, then aged 15 years, the victim, then aged 9 years, and the offender’s infant niece had been left alone in the loungeroom of one of the addresses in Curtin. The offender placed his niece on a couch and sat on the other couch. The offender asked the victim to come over to him, which the victim did. The offender told the victim to lay back on the couch, which the victim did. The offender then removed his pants and pulled the victim’s pants down to her ankles. The offender climbed on top of the victim and began rubbing his penis against her vaginal area. The offender’s penis became erect during the course of him rubbing against the victim. At some stage, the offender’s niece began to cry, which caused the offender to cease rubbing against the victim. The offender climbed off the victim, pulled his pants back up and picked up his niece.
The victim did not tell anybody about this incident. The sexualised behaviour, by this stage, had become “normalised” to her, according to the agreed facts.
2005 – 2009
Between 2005 and the end of 2009, the victim did not see the offender as she was not regularly seeing her father, and as there was conflict between her father and her uncle.
Towards the end of 2009, the victim saw the offender again for the first time, when the offender was visiting their grandparents’ home. The victim was then 14 years of age and the offender was 20 years of age. The victim and the offender were alone in the kitchen and they had a conversation during which the offender apologised for his behaviour towards the victim, said that he regretted what he used to do to the victim and stated that he believed that she hated him. The victim asked the offender why he used to do those things to her, but the offender was unable to answer.
Subsequently to this, the victim saw the offender a few more times at their grandparents’ home for the remainder of 2009.
Incident Two (CC19/13031)
In February 2010, both the victim, then aged 14 years, and the offender, then aged 20 years, were staying overnight at the Curtin address. The victim had gone to bed and was alone in the bedroom. The offender opened the bedroom, approached the bed, and climbed on top of the victim, holding her hands down and above her head such that the victim could not get up.
The offender pulled the victim’s pyjama bottom and underwear down and pushed his erect penis inside the victim’s vagina. He did not use a condom. The offender thrust into the victim for several minutes, and then pulled away from the victim. The offender then left the bedroom. The victim had never had sexual intercourse before this incident. She found the intercourse to be painful, and she bled as a result of it. The incident left the victim too scared to tell anybody about what had happened to her.
Incident Three (CC19/6404)
In June 2010, the victim, then aged 15 years, and the offender, then aged 20 years, were again at their grandparents’ address in Fisher. In the early evening the offender and victim went out for a drive so that they could talk. This was at the request of the offender.
The offender drove to a mountain near Woden and stopped the car by the side of the road. The offender told the victim to get out of the car with him. The victim got out of the car. The victim felt scared and worried as she did not know where she was or what was going to happen.
The offender told the victim to walk with him over to a big rock near to the roadside. As they approached the rock, the offender grabbed the victim and pulled her over towards the rock. The offender pushed the victim against the rock, and then pulled the victim’s pants down to her ankles. The offender lowered his own pants slightly and pushed his penis into her vagina. The victim was in pain but froze and did not know what to do. The offender did not use a condom and ejaculated inside the victim. The offender then drove the victim back to the Fisher address and then drove away. The victim felt scared and did not tell anybody about what had happened to her. This incident of sexual intercourse resulted in conception.
Incident Four (CC19/6405)
In July 2010, the victim, then aged 15 years, and the offender, then aged 21 years, were staying overnight at the Fisher address. Some of their family members were directly outside the victim’s bedroom window. The offender approached the bed and pulled the sheet and blanket off the victim. He removed his pants and climbed on top of the victim. The offender removed the victim’s pants and inserted his penis into the victim’s vagina. He did not use a condom. While he was thrusting, the offender placed his hand over the victim’s mouth due to the people standing outside the bedroom window. The offender left the bedroom. The victim did not tell anybody about what had happened to her.
Pregnancy and Aftermath
The victim missed her menstrual cycles. She believed she was pregnant to the offender. On 6 September 2010, the victim disclosed to her mother that she had been raped and that she was pregnant. Later that day, the victim was examined by doctors at the Forensic and Medical Sexual Assault Care Unit. Tests confirmed that the victim was pregnant. The victim was shocked and scared.
The victim spoke to the Police the next day and made up a story that she had been raped by a stranger. She then indicated to the Police that she did not wish for the investigation to continue. The victim was too scared to disclose the name of the offender.
On 16 September 2010, the victim had an abortion. The product of conception was analysed and was estimated to be about 13 weeks of age. A DNA sample was taken and was seized and stored by Police.
The victim stopped visiting her father so that she would not have to see the offender again. However, at some stage, the victim did see the offender and told him that she had been pregnant to him. The offender told her: “Sorry”.
First Complaint
In 2012 the victim disclosed to her brother that it had been the offender who had sexual intercourse with her. The victim’s brother did not tell anybody about this disclosure until 8 September 2018. The victim’s brother told their mother that it had been the offender who had sexual intercourse with the victim. A few days later, their mother spoke to the victim, who agreed that it was time to come forward to speak with Police. The victim was concerned to protect the offender’s nieces and nephews.
Second Police Investigation
On 25 September 2018 the victim, then aged 23 years, attended Belconnen Police Station and asked for the investigation to be reactivated, and participated in an evidence-in-chief interview several days later.
On 22 October 2018, the offender was arrested by Police. Police obtained a buccal swab from the offender. Subsequently, testing was conducted on the DNA sample which had been taken from the product of conception. On 5 December 2018, forensic analysis confirmed that the offender was the biological father of the product of conception.
Victim Impact Statements
In evidence before me were Victim Impact Statements from the victim of the offences and the victim’s mother and sister. Counsel for the prosecution read the statement of the victim’s mother and sister onto the court record on her behalf.
The victim’s Victim Impact Statement included the following:
One word that I would use to describe the assaults that I have been through and how it has left me feeling is powerless. It makes me extremely angry that someone would make me feel this way, let alone someone so close to me, and that effects me every single day.
Emotionally this trauma has torn me into pieces, especially over the first few years after the assaults it was like being on a rollercoaster, it has made me feel things I never thought I would ever feel. A type of surreal numbness can last for months or more at a time and this continues to resurface today 11 years later, like it only happened yesterday.
…
[BC], you are my cousin and as a little girl I looked up to you. You took advantage of me in an indescribable disgusting way. You took away my innocence and destroyed my time of life that should have been full of happy memories. Instead I became fearful, depressed, anxious and with a very low self esteem of myself.
You were old enough to know what you were doing to me was wrong but you chose to sexually abuse me at every opportunity you could. I am unable to function socially and struggle being around different people and big groups and do not feel safe on my own. This is all due to your selfish self indulgent abuse you did to me. I will never ever forget what you did and I will never ever forgive you.
The Victim Impact Statement of the victim’s mother included the following:
In the September of 2010, her 15th year, [LC] told me in a txt on her phone that she had been raped and was pregnant. My whole world crumbled. My beautiful little girl had a huge journey ahead of her. Her innocence had been taken by someone. LC had never had a boyfriend. How could this have happened and who would do that to her?
…
The damage that you did [BC] to myself is indescribable. The impact of your actions on LC and watching her continue her life journey as a victim of ongoing sexual abuse by you [BC] drains my every emotion. I try to understand your actions but what person would prey on an innocent child continually as you have pleaded guilty of doing?
…
I am devastated by your cruelness and sadness you have inflicted on us all as a family. Watching all of my children’s devastation of knowing what happened to LC and the fact that they all feel that they should have protected her as well is extremely hard to live with every day.
The Victim Impact Statement of the victim’s sister included the following:
From the moment [LC] was born I promised I would protect and look after her, my baby sister and I had failed in protecting her. I couldn’t protect her from absolute pure evil. How could someone rape a child for their own sexual pleasure. The anger that sits with me from the day I found out and continues to rip at my heart every time I think of the pain my little sister went through over those years, too scared to tell anyone.
We had thought that [LC] had kept this secret to herself about who had raped her for those previous 9 years, but no, she had told someone else. Her little brother [MC], telling him not long after the termination of the pregnancy. So these 2 kids kept this secret, [LC] was too scared to tell anyone. [MC] overdosed on prescription medication at my home. I had to call an ambulance and pray my little bother wouldn’t die. Because I thought he had. The day after his overdose, [MC] told mum the truth about who had been raping [LC] all those years ago, mum then asked [LC] and she confirmed. Again, I had failed. I hadn’t protected [MC] either. He had tried so hard to protect his sister and they shared this awful secret too painful to discuss. 7 months ago [MC] took his own life and part of that burden he had carried for all those years was too much, along with [MC’s] other demons he could no longer fight.
…
[BC], for many years you assaulted and raped my little sister for your own disgusting pleasure. You were an adult and there is absolutely no possible excuses for your abhorrent behaviour. For the past 2 years you have denied you did it, stating not guilty at your court appearances. The pain and stress we as a family have gone through as a family in unimaginable. You were guilty then, you are guilty now. May you never feel the pain we have and will have to continue to live with for the rest of our lives. That pain is because of you, I will never forgive you, you don’t deserve mine or anyone’s forgiveness.
Counsel for the prosecution correctly submitted that the enduring psychological harm described by the victim was consistent with the presumption arising from offending of this nature which has long been recognised by the courts. Counsel for the prosecution further correctly submitted that any asserted effect of the offending on MC’s passing cannot be taken into account as a relevant consideration on sentence. The victim’s Victim Impact Statement described moving on as ‘placing a band-aid over a bullet hole’. The victim described feelings of distrust, disgust, and numbness, all of which are all too familiar elements of harm associated with child sexual offences (T25.4-10).
The extent of the impact upon the victim and her family was made clear by the Victim Impact Statements. The reading of the Victim Impact Statements is important for the Court as the offender heard what was said. Courts know the extremely serious and long-lasting effects of these offences. It is valuable for the Court to hear, read, and understand the words of the victim.
The Court acknowledges the significant impact that the offences have had and continue to have on the victim.
Objective Seriousness
Prosecution submissions
The prosecution correctly submitted that there is no hierarchy of forms of sexual penetration, rather each act must be examined in its full context and in all of the circumstances of the case.
Global Features
The following features were submitted to be global to all four charged offences:
(a) The offending constituted a breach of trust. It was submitted that the victim “looked up” to the offender and was entitled to have trust in her older cousin (T23.8-11).
(b) The offender’s knowledge of the victim’s personal circumstances. It was submitted that the offender would have been aware of the victim’s vulnerability, by virtue of her age.
(c) The age differential between the victim and the offender. It was submitted that the age differential between the victim and the offender, being six years, was considerable given the differing life stages which the victim and offender were at during the time of the offending (T23.19-24). It was submitted that at the time of the first offence in 2004, the victim was 9 years of age whereas the offender was an adolescent in High School. In 2010 the victim was a teenager at school, and the offender was an adult, 21 years of age.
(d) It was submitted that the offender clearly engaged in the offending conduct for the purpose of his own sexual gratification.
(e) The offender’s degree of responsibility and moral culpability for the commission of the offending. Counsel submitted that the offender was solely responsible for the offending conduct. It was submitted that the offender was cognisant of the wrongfulness of his actions, as evidenced by the timing of the offending, and his apology for his conduct in 2009, prior to recommencing offending in 2010.
(f) While not increasing the objective seriousness of the charged offences, the repetition of the offences deprives the offender of any leniency which may have been associated with an isolated incident (T25.20-25).
Incident One – Act of Indecency on a young person under 10 years of age
In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a)The character of the offence and the degree of physical conduct. It was submitted that this was one of the most serious examples of this offence, given the width of potential conduct which could constitute an act of indecency.
(b)The age of the victim. It was submitted that this offence covers a range of ages from zero to ten years, and that generally speaking a younger victim equates to a more serious offence. The victim was nine years of age when this offence was committed.
(c)Lack of verbal or physical resistance. It was submitted that the victim’s lack of verbal or physical opposition to the sexual activity was not a mitigating fact. It was submitted to be irrelevant unless used to rebut any suggestion of an element of aggravation: R v Summerfield [2018] ACTCA 20 at [54]-[59].
Incident Two – Sexual intercourse with Young Person under 16 years of age
In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a) The age of the victim. It was submitted that the victim was 14 years of age at the time of this offending.
(b) The circumstances of the offending. It was submitted that this was brazen offending, as the victim and offender’s grandparents were present in the home.
(c) The victim’s resistance and the offender’s use of force. It was submitted that the offence was aggravated by the offender’s use of force and physical restraint of the victim (T24.1-7).
(d) The nature of the sexual intercourse. It was submitted that the unprotected nature of the intercourse was an aggravating feature of the offending. It was submitted to be a significant consideration that this abuse was the victim’s first sexual experience (T24.9-12)
(e) The duration of the sexual intercourse. The duration of this offending, being several minutes, was not insignificant.
(f) Injury, loss, or damage from the offending. The physical harm, and the pain and fear felt by the victim were relevant to the assessment of the objective seriousness of this offending.
Incident Three – Sexual intercourse with Young Person under 16 years of age
In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a) The age of the victim. It was submitted that the victim was 15 years of age at the time of this offending.
(b) The circumstances of the offending. It was submitted that the offender engaged in callous and predatory behaviour in the course of this offending, by isolating the victim and taking her to an outdoor location at night. It was submitted that this would have undoubtedly been a terrifying experience for the victim (T24.14-16).
(c) The victim’s resistance and the offender’s use of force. It was submitted that the use of physical force by the offender was relevant to the assessment of the objective seriousness of this offending (T24.18-20).
(d) The nature of the sexual intercourse. It was submitted that the unprotected nature of the intercourse was an aggravating feature of this offending, given that it carried the risk of sexually transmitted disease and pregnancy, the latter of which was ultimately borne out.
(e) Injury, loss, or damage from the offending. It was submitted that the victim felt pain and fear during the course of the offending. Additionally, it was submitted that the resulting pregnancy and associated termination of the pregnancy as an adolescent was a significantly aggravating feature of this offending.
Incident Four – Sexual intercourse with Young Person under 16 years of age
In addition to the global features, the following features were submitted to be relevant to the assessment of the objective seriousness of this offence:
(a)The age of the victim. The victim was 15 years of age at the time of the offending.
(b)The nature of the sexual intercourse. It was submitted that this offending was constituted by two separate acts, being digital-vaginal and penile-vaginal penetration with ejaculation. It was submitted that the latter penetration was aggravated by the absence of protection.
(c)The circumstances of the offending. It was submitted that this offending was brazen, given that the victim and offender’s grandparents were in the home, and other family members were directly outside of the bedroom window at the time of the offending.
(d)The offender’s use of force. It was submitted that the offender placing his hand over the mouth of the victim to stifle any noise was relevant to the assessment of the objective seriousness of this offending (T24.35-40).
(e)The duration of the sexual intercourse. It was submitted that the length of the offending was not insignificant, given that the penile-vaginal intercourse component lasted for five minutes.
(f)Injury, loss or damage from the offending. It was submitted that the victim experienced fear and pain during the course of the offending.
Defence submissions
Counsel for the offender correctly submitted that due to the nature of the three charges of sexual intercourse with a young person, those charges would subsume the act of indecency offence, given that the latter offence occurred when the offender was 15 years of age and subject to the provisions of the Children and Young People Act2008 (ACT) (T13.29-35; 18.34-45). Counsel for the offender correctly and in accordance with principle declined to make any submissions to the effect that the sentence could be served in a manner other than fulltime imprisonment (T19.19-22). Counsel correctly identified the offence described in Incident Three as being the most serious of the four offences (T19.28-29).
Conclusion on objective seriousness
I accept the submissions of the prosecution and the defence as to objective seriousness. The submissions of the prosecution and defence are broadly aligned and accord with my view of the case.
Submissions were not made by the parties as to whether the objective seriousness was low, middle, or high: see R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “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 (Toumo’ua) at [24]). The identifying features have been identified above in the submissions of the prosecution. I accept the prosecution submissions on objective seriousness.
Additionally, while a cousin relationship would not in all cases necessarily fall into the relationship of trust category, on the facts in this case the breach of trust is an aggravating factor. Defence did not cavil with that proposition.
Subjective Circumstances
In evidence before me is the Pre-sentence Report (PSR) prepared for the offender.
The offender is 31 years of age and was born in the ACT. He described his upbringing in negative terms, advising that his parents separated when he was an infant and that his mother’s subsequent partners had been violent towards her, himself, and his siblings. The offender recalled relocating often, stating that the longest he remained at one school was 12 months causing disruption to his childhood.
The offender reported that he was not close with his parents, but reported positive relationships with his brother, sisters, and grandmother who reside in the ACT.
The offender has two children from a previous relationship and reported positive relationships with his children and his former partner. The offender is currently in a long-term relationship and the couple are expecting their first child. The offender advised that his family are aware of the current offences and are supportive of him. The offender has stable accommodation in the ACT and his children regularly visit and stay overnight.
The offender completed his Year 12 education and has maintained a consistent employment history in various industries since leaving school. He intends to continue working in his current area of employment.
The offender denied a history of problematic alcohol consumption. The offender disclosed having experimented with cocaine and cannabis on a few occasions however he stated that he has abstained from illicit substance use since the last occasion, some time ago.
The offender reported intermitted engagement with a psychologist over the past 10 years to assist with management of symptoms relating to anxiety and depression.
The offender was assessed as a low risk of general reoffending, and average risk of sexual reoffending, with primary risk factors being illicit substance use and mental health concerns. The offender’s family support was assessed as a protective factor. Counsel for the offender submitted that the fact that the offender has refrained from any similar offending since 2010 speaks well for the offender in terms of rehabilitation (T.15.34-35). This submission is properly founded on the evidence.
The offender will be referred for assessment for his suitability for the New Beginnings and Pathfinder sex offender treatment programs.
Defence submissions
Counsel for the offender submitted that delay was a relevant consideration given the passage of time between the commission of the offences and his eventual sentence. It was submitted that the offender had rehabilitated himself, having not been charged with any offence for some eight years, and has been in full-time employment since that time, which was additionally submitted to auger well for the offender’s prospects in that regard (T18.16-25). I have taken the rehabilitation during the relevant period of almost a decade into account.
Prosecution submissions
Counsel for the prosecution correctly accepted that the offender’s disrupted and disadvantaged background was a factor to be taken into account on sentence in a general sense, but noted that there had been no suggestion of a causal connection between that background and the sexual offending and as such it would not reduce the offender’s moral culpability (T25.40-47). Counsel properly acknowledged that the offender’s bail conditions had prevented the offender from contacting his father and two sisters for approximately six months, however submitted that this was not a condition which would ordinarily be onerous enough to be mitigatory on sentence, as a quasi-custodial condition might be (T28.8-20).
Counsel for the prosecution correctly accepted that the offender has not committed any further offences for the past decade and has otherwise led a decent and respectable life and that this was relevant to the sentencing exercise. However it was submitted that this course was not unlike a number of other comparable cases involving historical sexual offences against young children (T19.40-43; 20.1-30).
It must be stated by the Court that conducting a decent and respectable life cannot be sufficient to erase the destruction and harm which has been brought to the victim’s life (T20.22-25). Nevertheless, counsel for the prosecution accepted that when rehabilitation and protection of the community are considered, general deterrence has a greater level of importance in the present sentencing exercise than specific deterrence of the offender as an individual (T21.44-47; 22.1-2).
Counsel correctly submitted that the delay associated with the prosecution was not mitigatory in the sense that it was unexplainable delay by prosecuting authorities which had left the offender in uncertain suspense (T22.5-10). It was submitted to be relevant to the demonstration of the offender’s rehabilitation in the intervening period, prospects of rehabilitation, and a reduction in the need for specific deterrence and protection of the community, noting that the PSR author had assessed the offender as a medium risk of sexual recidivism (T22.13-35).
Remorse
The PSR author states that the offender agreed with the Statement of Facts and identified the negative long-term impacts the offences would likely have on the victim.
Additionally, in evidence before me was letter written by the offender, dated 25 April 2021, which included the following:
I stand here today pleading guilty to the charges before you. I admit responsibility for my actions 11 years ago.
I regret my behaviour and understand that these are serious offences that have caused harm. I sincerely apologise as my actions have not only impacted [the victim] and her family it has also caused emotional damage to my family and the relationships they once shared.
I assure you I will never reoffend or before the courts again. I have grown and bettered myself over the last 11 years, I completed a drug and alcohol course in 2012 and I have worked with my psychologist… to work through my childhood traumas that impacted my childhood and has been the cause of my ongoing struggle with mental health. Reflecting on my behaviour has made me embarrassed at the person I was so many years ago I wish I had been able to seek help sooner. When I was charged in October 2018 I felt so much shame disclosing my offences to my fiancée, my family, my in-laws, my employer and friends. Reflecting on who I use to be in the past impacted me and I felt so much fear and anxiety that I would lose the people I love dearly. I have been incredibly lucky to have them all stand by me through this.
Counsel for the offender submitted that the offender had acknowledged not only the unlawfulness of his actions, but also the long-term negative impact upon the victim (T15.10-12). Counsel accepted that that the evidence of remorse had not been given directly by the offender under oath or affirmation, however it was submitted that some weight could nevertheless be attributed to its expression in other forms (T18.1-15).
While the Courts have stated on many occasions that hearsay statements or statements made by an offender which are not supported by the offender giving sworn evidence should be treated with caution: see Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; 226 A Crim R 354 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters v The Queen [2010] NSWCCA 1 at [18]; Mun v The Queen [2015] NSWCCA 234 at [37]; Van Zwam v The Queen [2017] NSWCCA 127 at [6], [110]; Imbornone v The Queen [2017] NSWCCA 144 and R v Harrison [2001] NSWCCA 79; 121 A Crim R 380.
Accordingly, I note the remorse expressed and take it into account as counsel for the prosecution conceded the existence of remorse in the offender’s case (T22.13-17).
References
In evidence before me were 18 references in support of the offender, which included the following:
(a)A letter from the offender’s former partner, dated 17 April 2021, which included:
[BC] and I share a long history together and in the time of our separation we have encountered many struggles throughout our co-parenting and friendship; however in the last 4 years I have seen [BC] blossom into a wonderful father and a great friend despite the struggles we went through whilst we shared a relationship together.
When [BC] informed me about the charges against him I was surprised that he is accused of something that is not in his nature.
(b)A letter from the offender’s younger brother, dated 20 March 2021, which included:
Growing up as children we were exposed to a lot of domestic violence, assault, drugs, and alcohol and on occasion even sexual indecency. [BC], our two sisters and myself suffer severe mental health problems which is strongly linked to our traumatic childhood… [BC] has been such an amazing support to me emotionally, mentally, and physically helping out when I don’t have the strength or energy to do so, with [BC] being my number one support, I would be devastated if I had restricted access and contact to him.
(c)A letter from the offender’s current partner, dated 14 April 2021, which included:
[BC] is an amazing partner he makes me feel safe, loved, cared for, appreciated, happy and me makes me a better person, we have built a life and family together… [BC] is an amazing father and his two boys… adore him. We see them at least every second weekend and for half of every school holidays… [BC] is an honest, loyal, and sensitive man, he will always admit when he is wrong. He hasn’t always had the best life and suffers from anxiety and depression from his own relentless childhood trauma.
…
The jail system is designed for rehabilitation, which in my opinion is not relevant for [BC], as he is a different person to who he was over 10 years ago. He has come such a long way with his mental health and dealing with his childhood trauma. He contributes to society, he works hard at his job and he has a family (and extended family and friends) that love him dearly. He has a bright future and many goals to achieve. Submitting him into jail would not benefit anyone in this situation it would be waste of government resources, a loss to society and have an impact on his family, loved ones, his employer and would likely cause intergenerational trauma to his innocent young boys and unborn baby who need their dad.
(d)A letter from the offender’s older sister, dated 15 April 2021, which included:
[BC] is an amazing young man who has been through hell and back growing up. We endure many life problems growing up and were exposed to things that have impacted us mentally and emotionally. Our upbringing has never stopped [BC] striving to achieve a better life for himself and his family. He provides for his family, he works hard, he contributes to the lives of everyone that he loves and who loves him.
…
The charges [BC] faces are extremely out of character and being over 10 years ago he isn’t the same person he once was. I have watched [BC] grow from a damaged boy to a proud family man over the years.
(e)A letter from the offender’s younger sister, dated 15 April 2021, which included:
…[A]s children my siblings and I experienced ongoing trauma, neglect, were witnesses to sexual and physical abuse and have been on the receiving end of parents who have substance and alcohol abuse issues which began as a result of our mum and their father’s own traumatic lives before we were born. I’m sure you are aware of the deep intergenerational trauma these issues can bring to families and the cycle that can be difficult to break with out the correct support.
…
For [BC] not to be able to see his two children… and his expected child arriving this year, will have detrimental effects on all involved. [BC] is not a harmful person. In fact, he is the opposite. He is empathetic, genuine, kind and resilient.
(f)A letter from the offender’s employer, dated 23 April 2021, which included:
During my relationship with [BC] I have experienced an individual who is reliable, trustworthy, works hard and carries himself in a polite, respectable manner. [BC] is a family man and has always presented himself with level headedness and kindness.
…
[BC] is an important asset to my company and I hope to continue working with him.
(g)A letter from the offender’s mother, dated 1 March 2021, which included:
[BC] has had some trauma in his life and growing up he didn’t have the easiest life, to be honest I had a couple toxic relationships that exposed my children to domestic violence and psychological abuse. We have had family issues (As [BC’s] father and I weren’t together) [BC’s] Paternal Grandparents and I had fought over custody of [BC] throughout his childhood.
(h)A letter from the offender’s paternal grandmother, dated 17 April 2021, which included:
Myself and my husband raised [BC] the first four years of his life as his mother was more focused on chasing boyfriends and partying that caring for her children. When [BC] was four years old she showed up to our house with one of her latest boyfriends and convinced [BC] to go with her promising him the world. This was just the beginning of my grandsons devastating childhood.
[BC’s] mother is an alcoholic and would often become violent and argue with her partners over the years. The children stuck together and raised each other best that they could. When [BC] was 5 years old he drowned in a pool and had to be revived my paramedics as he was left unattended by his mother who expected his sister who was a few years older to be able to watch him for her. When [BC] was 7 years old he was sexually assaulted by a neighbour which was reported to police. [BC] developed anxiety and depression as a young child due to these instances and the added consistent exposure to addiction, domestic violence, abuse and neglect.
…
[BC and his partner] have now been together for 5 years and are engaged with a baby on the way and hopefully getting married later this year. They have had their struggles as a couple they had a miscarriage in 2018 which was devastating for the whole family but together they overcame their grief. They can do anything together. [BC] has grown into such an honest, caring young man and I am extremely proud of who he has become. He’s never short of helping his grandparents out whether it be sitting at the hospital with his pop… helping us with errands or just keeping us company and checking in on us.
(i)A letter from the offender’s mother-in-law, dated 2 March 2021, which included:
I understand the severity of [BC’s] charges in the laws eyes, but the man I know isn’t that young damaged boy anymore, a lot has changed over 10 years. I see [BC] as a son and I am asking for leniency for him. He is a young man with a bright future ahead of him; he is a hard worker, a great dad and he has many people that love him.
(j)A letter from a personal friend of the offender, dated 24 November 2020, which included:
I am aware of the charges today, however having spent time with [BC] over the past few years I can honestly say that he is a kind, gentle and genuine young man and these charges are very out of character.
(k)A letter from the fiancée of the offender’s younger brother, dated 24 January 2021, which included:
[BC] is perfect example of someone who risen above all the bad things life has thrown at him and is now the best person he can be, he has made a good life for himself, his partner and his children. [BC’s] personality does not fit that of a criminal or bad person at all.
(l)A letter from the grandmother of the offender’s partner, dated 28 March 2021, which included:
In this generation you wouldn’t find many young men willing to work so hard and help out of the kindness of his heart, he is definitely one of a kind.
(m)A letter from the partner of the offender’s younger sister, dated 23 April 2021, which included:
I note I was aware of the allegations when first meeting [BC] and will openly admit I had my reservations about meeting him, given the seriousness of the allegations. However the person I met, and now know has left me in no doubt that the accusations against [BC] in no way, shape or form represent the man I know.
…
[BC] is someone who I confide in and seek guidance from, especially when I find myself struggling. He has played an important role in improving my mental health, pushing me to seek assistance and providing names of people to speak to.
(n)A letter from a personal friend of the offender, dated 5 February 2021, which included:
I have 5 children which look up to [BC] as uncle... In no way would I second guess [BC] looking after my children. [BC] has shown my children that they are loved and are family.
(o)A letter from another personal friend of the offender, dated 15 February 2021, which included:
When I found out that [BC] had been arrested I was surprised, I never expected [BC] to be in a situation like this. It is extremely out of character, given the time… from the charge to now please consider the man that is standing in front of you today and his young growing family.
(p)A letter from another personal friend of the offender, dated 15 April 2021, which included:
In the 5 years I have known [BC], he has always been hard-working, caring and a family orientated young man. I have watched him help his family and friends with things from manual labor (yard work, moving etc.) to emotional support (grief and loss, advice etc.).
(q)A letter from another personal friend of the offender, dated 15 April 2021, which included:
From my understanding of the circumstances surrounding this matter I am extremely astonished that this has occurred. The [BC] I know is whole heartedly committed to his family and his job and would never intentionally hurt anyone.
(r)A letter from another personal friend of the offender, dated 15 April 2021, which included:
When hearing about [BC’s] charges I could not believe it, He has such a caring soul and I was very shocked to hear about this situation as it’s completely out of character of him.
The letters generally express difficulty reconciling their assessment of the offender’s character with the offences to which he has pleaded guilty. Views are expressed as to punishment and gaol not being now necessary. I note that the law has its own demands which the Court must follow.
Counsel for the offender submitted that these references indicate that the offender’s character is at odds with the nature of the offending, and clearly demonstrate strong family and community support (T13.15-20).
I take the references into account on sentence.
Hardship and effect on the offender’s family or dependants
Defence Submissions
Counsel for the offender submitted that this sentence would have an impact upon the offender’s family, and in particular cause hardship to the offender’s current partner (T15.37-38). In particular, it was submitted that there would be exceptional hardship on the offender’s current partner in respect of the impending birth of their first child (T16.40-45). It was submitted that there would be significant hardship upon his two children of his previous relationship, who he cares for on weekends each fortnight, during holidays, and who he supports financially (T17.1-5).
Counsel for the offender provided written submissions in relation to the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants, a relevant consideration on sentence in accordance with s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Section 33(1)(o) states:
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(o) the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants;
(emphasis added)
Counsel for the offender submitted that the ‘probable effect’ of the existence of family hardship is to be assessed on the balance of probabilities. It was submitted that the common law position is that hardship suffered by third parties, such as the offender’s family, may mitigate a sentence in ‘exceptional circumstances’: R v Edwards (1996) 90 A Crim R 510 (R v Edwards) at 516-7, however counsel submitted that s 33(1)(o) differs from the common law position.
Counsel for the offender referred to Director of Public Prosecutions (Cth) v Ip [2005] ACTCA 24 (DPP v Ip) at [60], a case which dealt with the practically identical Commonwealth sentencing consideration of hardship to third parties in s 16A(2)(p) of the Crimes Act 1914 (Cth) (Crimes Act (Cth)), being “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”. In DPP v Ip at [60]-[61] the Court of Appeal determined that there was no warrant to qualify the language of s 16A(2)(p) by presuming that the provision should be read as if it were preceded by the words “in an exceptional case”, and additionally affirmed that any weight to be ascribed to a listed relevant factor is a matter entirely in the Court’s discretion. This reasoning has been applied in subsequent cases: see R v Ashman [2010] ACTSC 45 (R v Ashman) at [36]-[40] and R v Weir [2015] ACTSC 394 (R v Weir) at [27]-[31].
Prosecution submissions
Counsel for the prosecution did not press for the importation of the restriction of “highly exceptional” or “exceptional” into s 33(1)(o) of the Sentencing Act: see Craft v Diebert [2004] ACTCA 15 (Craft v Diebert); DPP v Ip; R v UG [2020] ACTCA 8 (R v UG). Nevertheless, the prosecution submitted that a finding of hardship to a third party in accordance with s 33(1)(o) would not invariably result in a lesser sentence, noting that s 33(4) of the Sentencing Act provides that the Court is not required to increase or to reduce the severity of a sentence because of a relevant factor that is known to the Court.
Counsel for the prosecution made the following submissions in relation to the question of hardship to third parties in the present matter:
(a) The extent of any financial impact upon the offender’s partner is unknown. The offender’s partner made no complaint in relation to financial hardship in the reference letter provided to the Court.
(b) The Court would undoubtably sympathise with the children of the offender who will not be able to visit their father in the community. However, this is the reality for many children whose father is absent and in prison.
(c) The Court would undoubtably sympathise with the offender’s partner, who will be unable to derive financial, physical, and emotional support from the offender during her pregnancy and the birth of her child. However, the offender’s partner does have access to a significant support network, as evidenced by the many references before the Court.
Counsel for the prosecution accepted that there will unfortunately and invariably be a hardship upon the offender’s partner and his children arising from his incarceration. However it was submitted that little, if any weight could be ascribed by the Court to the effect of the sentence in this respect, in light of the considerable gravity of the offences for which the offender is being sentenced.
Consideration
The Court is obliged to consider the probable effect that any sentence would have on the offender’s family or dependents under s 33(1)(o) of the Sentencing Act. It is a matter for the Court as to the weight to be ascribed to this factor.
The common law principle is that hardship to third parties is only to be taken into account as a sentencing factor where the circumstances are highly exceptional: R v Edwards.
Intermediate appellate courts in Australian jurisdictions have imported this restriction of “highly exceptional” or “exceptional” into s 16A(2)(p) of the Crimes Act (Cth), which is the equivalent federal provision to s 33(1)(o) of the Sentencing Act: see, for example R v Adami (1989) 51 SASR 229 (South Australia); R v Sinclair (1990) 51 A Crim R 418 (Western Australia); R v Matthews (1996) 130 FLR 230 (Victoria); R v Togias [2001] NSWCCA 522 (NSW); R v Ajelara [2015] QCA 56 (Queensland).
There has been recent “expressions of disquiet” about this approach: see DPP v (Cth) v Pratten (No 2) [2017] NSWCCA 42 at [49] (Basten JA) and Elshani v R [2015] NSWCCA 254 (Elshani v R).
The ACT Court of Appeal has not engaged this restriction in interpreting s 342(1)(j) of the Crimes Act. s 342(1)(j) of the Crimes Act was the predecessor of s 33(1)(o) of the Sentencing Act and is in relatively identical terms. It is therefore appropriate to refer to the cases of Craft v Diebert and DPP v Ip in detail.
In Craft v Diebert, the Court of Appeal dealt with an appeal where the respondent was the primary caregiver of a teenager with attention deficit hyperactivity disorder. In relation to s 342(1)(j) of the Crimes Act, Crispin P and Connolly J made the following observations at [9]-[10]:
… Mr Refshauge SC argued that issues of this kind should be considered only in exceptional cases. Whilst acknowledging that s 342(1)(j) of the Crimes Act required sentencing judges or magistrates to have regard to “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents”, he submitted that it would be appropriate for this Court to follow the decision of the Western Australia Court of Criminal Appeal in R vSinclair (1990) 51 A Crim R 418 at 430. This decision suggested that a similar provision in the Commonwealth Crimes Act was not intended to change the common law principle that the effect on dependents would not be taken into account save in exceptional circumstances. With very great respect to their Honours, we must say that we are quite unable to accept that a legislative requirement to take such a factor into account can be transliterated into a prima facie requirement to ignore it merely because that would reflect the approach previously recognised at common law. A similar issue arose for consideration by the Queensland Court of Criminal Appeal in the subsequent case of R vTilley (1991) 53 A Crim R 1 at 3 where, after referring to the aspects of retribution, deterrence and rehabilitation, Thomas J referred to the hardship that would result if the respondent were to be parted from her two and a half year old daughter and explained:
Courts, of course, take account of such matters in a number of ways but are not overwhelmed by them. It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may mean the temporary loss of a mother. It is common that hardship and stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. . . .
If we may say so, with respect, his Honour’s remarks reflect the sad but not uncommon experience of sentencing judges and magistrates. All too often the need to adequately punish the offender and to deter other like minded people from committing similar offences leaves little, if any, scope for leniency based upon the adverse effect of the sentence upon the offender’s children and/or other dependents. In that sense it might, perhaps, be said that this factor will have a significant impact upon sentencing for very serious offences only in exceptional cases.However, such an observation should not be misconstrued as a legal principle which, in our opinion, could not be accommodated within the language of s 342 of the Crimes Act , let alone the perhaps more broad discretion provided by s 6 of the Periodic Detention Act.
(emphasis added).
In DPP v Ip, the Court of Appeal in resentence considered the fact that the respondent’s wife had a chronic, acute and “unusual skin condition” and required the assistance of the respondent. In relation to s 16A(2)(p) of the Crimes Act (Cth), the Court of Appeal observed the following at [60]-[61]:
The mandate of the Commonwealth Parliament is quite clear: the sentencing court ‘must take into account’ the matters set out in subs 16A(2) of the Crimes Act 1914 (Cth), including ‘(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. The contemplated taking into account of such factors must clearly be real and must occur in every case in which one or more of those factors exist. There is, with respect, simply no warrant for a sentencing court to presume judicially to qualify the clear parliamentary command by suggesting, as has been done, in R v Hinton (2002) 134 A Crim R 286, 293, that –
The reference in s 16A(2)(p) of the Crimes Act 1914 (Cth) to the “probable effect that any sentence or order under consideration would have on any of the person’s family or dependants” should be read as if it were [preceded] by the words “in an exceptional case”: R v Togias (2001) 127 A Crim R 23.
Indeed, this court would wish to specifically dissociate itself from the reasoning in R v Togias which gave rise to that suggestion (see Togias (supra) at 34-37). As R v Hinton stresses, each case will “to a very great degree depend upon its own facts”. So here.
Of course, what weight a listed factor is to be given is a discretionary matter. In many cases, it will not be possible to give a family’s suffering much or any weight. But as a matter of the letter and the clear conceptual intendment of the Parliament, it must be anxiously considered in every case where it exists.(emphasis added)
This approach appears to have been endorsed by a number of single judges in the ACT: see Robinson AJ in R v Weir, Penfold J in R v Latona and McCabe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012), R v NO (No 2) [2018] ACTSC 37 (R v NO (No 2)) and Valencic v Jordan [2017] ACTSC 120 (Valencic v Jordan); Murrell CJ in R v Wright; R v Edgerton [2021] ACTSC 12 (R v Wright).
In R v Wright at [96], Murrell CJ observed:
Ms Wright relied on s 33(1)(o) of the Sentencing Act, which was discussed in R v UG [2020] ACTCA 8 at [52]-[60], where the Court suggested that, absent circumstances out of the ordinary, there was no requirement that the effect of a sentence on family be taken into account. While this may be true in other jurisdictions, I doubt that the words of s 33(1)(o) support such a limitation.
Since Craft v Diebert and DPP v Ip, the Court of Appeal has not further dealt with the question of whether the restriction of “highly exceptional” or “exceptional” ought to be imported into s 33(1)(o) of the Sentencing Act. In R v UG, the Court of Appeal declined to determine the proper approach to s 33(1)(o) of the Sentencing Act stating that ‘in this case, it is neither appropriate nor necessary to determine the proper approach to s 33(1)(o) of the Sentencing Act’: at [60].
Given the decisions of the Court of Appeal in Craft v Diebert and DPP v Ip and that the terms of s 342(1)(j) of the Crimes Act and s 16A(2)(p) of the Crimes Act (Cth) are relatively identical to s 33(1)(o) of the Sentencing Act, the prosecution correctly, and in accordance with principle, did not press upon the Court to import the “highly exceptional” or “exceptional” restriction.
Nevertheless, the prosecution did emphasise that hardship to a third party under s 33(1)(o) of the Sentencing Act would not invariably result in a lesser sentence.
In R v NO (No 2) at [63], Penfold J considered Valencic v Jordan at [61], namely:
I accept the proposition that s 33(1)(o) of the Crimes (Sentencing) Act obliges a sentencing court to take account of material before it concerning the effect of a sentence on an offender's family or dependents. However, I see no basis for accepting the proposition implicit in counsel's submissions that a sentencing court must provide a sentencing discount, or otherwise reduce a sentence, because there is evidence before it that a particular sentence will impose hardship on an offender's dependents.
Penfold J’s remarks were endorsed by the Court of Appeal, in Ngata v The Queen [2020] ACTCA 18 (Ngata v The Queen) which was an appeal concerning deportation and s 33(1)(o), at [43]:
Turning to how s 33 of the Sentencing Act is to be applied, the existence of a factor that must be considered pursuant to that provision does not necessarily translate into a sentence discount: see R v NO (No 2) [2018] ACTSC 37 at [61] per Penfold J. It certainly cannot result in a percentage or quantified discount arrived at mathematically; that would offend the instinctive synthesis principle.
Further I note the principles in relation to hardship in the ACT were summarised by McWilliam AJ in Subasic v Williams [2018] ACTSC 207 at [39] emphasising that:
Taking that factor into account does not mean that a sentencing court must provide a sentencing discount, or otherwise reduce a sentence, because there is evidence before it that a particular sentence will impose hardship on an offender’s dependents.
Relevantly, in recent developments in the NSW Court of Criminal Appeal for example, R v Zerafa [2013] NSWCCA 222; 235 A Crim R 266 (R v Zerafa), Beech-Jones JA made the following observation about s 16A(2)(p) of the Crimes Act (Cth) in a separate judgment at [140] and [144]:
…If in other contexts Courts are bound to consider the impact of their orders on innocent parties why is the impact on children of any sentence under consideration to be excluded unless their hardship is only exceptional?(Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [65] to [66]; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324 and 332), The primary objects in sentencing of “retribution, deterrence [and the] protection of society” described by Wells J in Wirth can still be given effect to without requiring sentencing courts to divide the forms of hardship occasioned to an offender’s family into those which meet the description “exceptional” and those which do not. The assessment of probably hardship to family members is a task that sentencing courts are perfectly able to undertake, and no doubt they do. In any event, the words of the section and the secondary materials indicate a clear policy choice on the part of the legislature on this topic.
…
In my view, the words of s 16A(2)(p) are clear. The secondary material confirm that meaning. The cases that have considered the provision have not reconciled their construction with either. I am satisfied that the construction of s 16A(2)(p) which reads the provision as though it was preceded or proceeded by the words “in an exceptional case” is plainly wrong on either of the approaches suggested in Gett at [294]-[295].
(emphasis added)
In Carter v R [2018] NSWCCA 138, McCallum J observed the following in relation to Beech-Jones JA’s remarks about exceptional hardship:
…Zerafa was a case involving sentencing for Federal offences, so his Honour’s ultimate conclusion was directed to the proper construction of the Commonwealth legislation (Crimes Act 1914). However, in my respectful opinion, aspects of that discussion apply with equal logic to the common law hardship principle.
In R v Cornell [2015] NSWCCA 258, Beech-Jones J made the following observations about the impact of third party hardship on a non-parole period referring to the decision of Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) concerning non-parole periods[1] at [145]:
[1] As opposed to the later High Court decision Bugmy v The Queen [2013] HCA 37; 249 CLR 571 considering disadvantage and deprivation.
The most common applications of the principle which Edwards is said to stand for are either at the point of considering whether a full time custodial sentence should be imposed, which was the circumstance faced by Berman DCJ, or at the point of determining whether special circumstances exist and, if so, the length of the non-parole period (see Regina v Robert Brian Grbin [2004] NSWCCA 220 at [33] per Dunford J, with whom Levine and Howie JJ agreed). However there is no reason why a finding that exceptional circumstances exist is not a matter that a sentencing judge is entitled to give weight to in the fixing of a head sentence. It is possible that there will be cases where the adverse impact on third parties that the exception is designed to address will not be eliminated or minimised by the release of the applicant on parole. For example a travel restriction imposed as a condition of parole could prevent an offender returning to their home to care for a close relative. Nevertheless, consistent with both judgments in Bugmy, it is far more likely that hardship to family members will be a factor that warrants significant weight in fixing the non-parole period if special circumstances are found. This is because in most cases the hardship to the affected party from the sentencing of the offender to a term of imprisonment will disappear on their release. Certainly that is the case here.
(emphasis added)
I also note that in R v Wirth (1976) 14 SASR 291 (R v Wirth) at 295-296, Wells J observed that a sense of “mercy” should not be used by a court to undermine the other purposes of sentencing, such as retribution, deterrence or protection of society. In contrast, taking into account third party hardship on the basis that it will make the experience of imprisonment more burdensome or materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation is simply an application of the general purposes of sentencing.
The impact on the fixing of a non-parole period on account of hardship on third parties has also been discussed in Elshani v R at [42], Elsaj v R [2017] NSWCCA 124 at [85]; Linden v R [2017] NSWCCA 321 at [18] and Lee v R [2019] NSWCCA 15 at [77].
In my view, taking into account the authorities extensively discussed above and the evidence in this case also outlined above into account, it is appropriate to ascribe sentencing weight to this factor. In my view, it is a factor not without real significance. It is a factor I must take into account in the process of instinctive synthesis and I do so in particular in relation to the non-parole period along with rehabilitation. I do so with clear regard to ensuring there is no double counting: DPP v Ip, R v Ashman, R v Weir, Craft v Diebert, R v NO (No 2), Ngata v The Queen.
In my view, this is a relevantly exceptional case, although the test of “highly exceptional” or “exceptional” is not required on a proper reading of s 33(1)(o). I also take into account third party hardship on the basis outlined in R v Wirth above at [90]. I do so with specific regard as to avoiding double counting the relevant factors in the process of instinctive synthesis.
Criminal History
The offender has one unrelated matter in 2012 for which he received a bond. That matter is not relevant for present purposes.
Pleas of Guilty
Plea dates
The various dates at which the offender entered pleas of guilty to the offences are set out in the Agreed Statement of Facts.
On 23 October 2018 the offender was first charged with a single charge of sexual intercourse with a person under 16 years of age. This charge spanned from February 2010 to August 2010 and encompassed all three incidents of sexual intercourse to which the offender has now pleaded guilty.
On 29 March 2019, the offender pleaded not guilty to the single charge.
On 7 June 2019, the prosecution amended the single charge, and laid fresh additional charges.
On 6 August 2019, the offender pleaded guilty to a single charge of sexual intercourse with a person under 16 years of age (Incident Three). The offender pleaded not guilty to the remaining charges. All charges were committed to the Supreme Court.
The matters were provided with listing dates for an application by the prosecution to tender tendency evidence (on 13 December 2019), the victim’s pre-trial evidence hearing (on 13 February 2020) and the trial itself (to commence on 23 March 2020).
On 13 December 2019, the prosecution’s application to lead Incident Three as tendency evidence at trial was refused: R v BC [2019] ACTSC 391. On 3 August 2020, the Court of Appeal set aside the initial tendency decision and made an order allowing the prosecution to lead the incident as tendency evidence at trial: R v BC (No 3) [2020] ACTCA 49.
The matters were then listed for the Criminal Case Conferencing and the victim’s pre-trial evidence hearing on 6 October 2020. The pre-trial evidence hearing was vacated on the prosecution’s application. Further dates were subsequently provided for a Ground Rules Hearing, pre-trial evidence, and the trial, in November 2020, February 2021, and March 2021.
On 27 January 2021, the parties reached a negotiated outcome whereby it was agreed that the offender would plead guilty to the present offences. As a result of these negotiations the victim was not required to give evidence in court.
On 2 February 2021, the offender pleaded guilty in accordance with the negotiated agreement.
Prosecution Submissions
The prosecution accepted that the offender entered a plea of guilty to the Incident Three offence in the Magistrates Court in August 2019, however submitted that the prosecution case was “virtually indefensible” in light of the DNA evidence (T14.20-21). Accordingly, the prosecution submitted that any discount for this charge ought to be minimal.
It was submitted that the negotiated pleas involved an agreement by the prosecution not to proceed with six charges relating to a period from 2002 – 2003. It was submitted that these negotiations occurred approximately five months after Criminal Case Conferencing had occurred. It was submitted that the prosecution case in relation to the offences to which the offender pleaded guilty was strong, in light of the Court of Appeal permitting the prosecution to lead Incident Three as tendency evidence. It was accepted that the pleas had resulted in the victim not being required for proofing or for pre-trial evidence.
Defence Submissions
Counsel for the offender made similar submissions highlighting the utilitarian benefit associated with the pleas of guilty with respect to the proofing of the victim and her need to attend court, give evidence and participate in cross-examination (T14.40-45). Counsel submitted that the early plea to the Incident Three offence would attract a discount in the realm of 25 per cent.
Consideration
Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. s 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). s 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
Pursuant to s 35(2)(c) of the Sentencing Act, it is noted that the pleas were the subject of negotiations between the parties: see also Blundell v The Queen [2019] ACTCA 34 at [16]-[17].
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
Taking into account all relevant matters discussed above I therefore allow a 20 per cent discount for the pleas of guilty. As per Burns J in R v McCurley [2020] ACTSC 140 at [8], I see no reason to distinguish between the offences for the purposes of determining the level of discount on sentence that should be applied because of the pleas of guilty. In effect, all pleas of guilty were entered prior to a trial date being set. I accept that the pleas of guilty had significant utilitarian value.
Time in Custody
The offender has spent one day in custody in relation to this offence. Any sentence imposed will be backdated by one day to take this into account.
Cases
It is accepted that sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
The prosecution submitted that the present offending has a number of salient features, and accordingly the identification of comparable cases had been difficult. Nevertheless, the prosecution referred the Court to the following comparable cases.
In R v Summerfield [2017] ACTSC 321 (Summerfield) the offender was sentenced for five offences of sexual intercourse with a person under the age of 16 years after entering pleas of guilty at a relatively early stage. The maximum penalty for this offence was 14 years’ imprisonment. There were two victims of these offences, who were 15 and 13 years of age at the time of the offending. Count 5 related to offending conduct which led to the pregnancy of the 13 year old victim, and the subsequent termination of that pregnancy. The offender was 18 years of age, had a criminal history, and was diagnosed with a mild intellectual disability which was found to have reduced his moral culpability. The offender received a discount of 15 per cent for his pleas of guilty and was sentenced to 6 months’ imprisonment for Counts 1 – 3, 12 months’ imprisonment for Count 4, and 15 months’ imprisonment for Count 5. The total sentence was 24 months with a 12 month non-parole period. The prosecution’s appeal on the basis of manifest inadequacy was upheld, and the offender was re-sentenced to 3 years imprisonment, with Count 5 increased to 2 years’ imprisonment, and a non-parole period of 18 months was imposed: R v Summerfield [2018] ACTCA 20.
I note the following matters:
· Summerfield involved more than one victim.
· Breach of trust was not a sentencing consideration.
· Summerfield’s victims were aged 13 and 15 years of age. The victim in this case was variously aged 9 years, 14 years & 15 years at the time of the offending.
· At the time of the offending Summerfield was 18 years old. The offender was variously 15 years and 20-21 years old.
· There was an age gap of 3 and 5 years in Summerfield. There is an age gap of 6 years in the present matter.
· Summerfield engaged in unprotected penile-vaginal sexual intercourse and oral sex with his first victim at her home, engaged in protected penile-vaginal intercourse with the second victim at a party and continued unprotected penile-vaginal intercourse with the second victim with an intention of impregnating her. The offender’s offences in this case included unprotected penile-vaginal penetration on three occasions.
· The offender impregnated the victim in this case and in Summerfield one of his victims was impregnated. Both victims had terminations.
· An aggravating feature of force is present in the offender’s case.
· Summerfield’s offending spanned from January 2016 to May 2016. The present offending spanned from 2002 – 2004 and February 2010 – July 2010.
· Both Summerfield and the offender pleaded guilty.
· Summerfield was 19 years of age at sentence. The offender is 31 years of age.
· Summerfield had a “not insignificant” criminal history. The offender has a very limited criminal history.
· Summerfield was on conditional liberty. The offender was not.
· Verdins principles applied in Summerfield’s case such that it reduced his moral culpability. This does not apply in the offender’s case.
In R v Tully (No 3) [2014] ACTSC 275 (Tully) the offender was sentenced for offending, as both a child and as an adult, against eight underage victims, one of whom was his cousin, following a trial by jury. The jury found the offender guilty of 18 of 23 charged counts of historical child sexual abuse. The offending occurred over a 12-year period. The four offences committed against the offender’s cousin occurred when the offender was 18-20 years of age and the victim was 7-9 years of age. Those offences comprised three charges of sexual intercourse with a child under 10 years of age (Counts 1, 3, and 5), and one act of indecency on a child under 10 (Count 2). The maximum penalties for these offences were 17 years and 12 years of imprisonment respectively. Count 1 related to the offender licking the victim’s external genitalia; Count 2 related to the offender placing the victim’s hand onto his penis; and Counts 3 and 5 related to the licking of the victim’s genitalia, and the partial and momentary penetration of the victim’s vagina with the offender’s penis. The offender was 40 years of age at the time of sentence, had no prior criminal history, and had committed no further offences for 12 years after having committed his last sexual offence. The offender was assessed as having a moderate risk of sexual re-offending. The offender was sentenced to 2 years’ imprisonment for Count 1, 18 months’ imprisonment for Count 2, 2 years and 6 months’ imprisonment for Count 3, and 3 years and 9 months’ imprisonment for Count 5. The total sentence imposed for the 18 offences was 14 years and 6 months’ imprisonment with a non-parole period of 9 years’ imprisonment. The sentences in relation to Counts 1, 2, 3, and 5 were subsequently set aside on appeal due to insufficient evidence with respect to the age of the victim during the relevant period of offending. Otherwise, the appeal was dismissed: Tully v The Queen [2016] ACTCA 4. The offender was subsequently re-sentenced in order to reflect the acquittals on the four Counts. The sentence imposed was restructured by way of reduction of the head sentence to 12 years, and the non-parole period to 7 years and 3 months’ imprisonment: Tully v The Queen [2016] ACTCA 11.
I note the following matters:
· Tully involved eight victims (including his cousin).
· One of the victims was a cousin.
· Tully’s cousin was aged 7-9 years. The offender’s cousin was aged 9 years, 14 years, and 15 years at the time of the offending.
· Tully was 18-20 years of age. The offender was 14 years and 20-21 years of age.
· Tully was found guilty. The offender pleaded guilty.
· Tully was 40 years old at sentence. The offender is 31 years old at sentence.
· There was an age gap of 11 years in Tully. There is an age gap of 6 years in the present matter.
· Tully licked his cousin’s external genitalia, placed his cousin’s hand on his penis, licked her external genitalia and partially and momentarily penetrated her vagina with his penis at Tully’s family’s property.
· There was no impregnation in Tully.
In R v Nona [2015] ACTSC 136 (Nona) the offender was sentenced for two offences of sexual intercourse with a person under 16 years of age, and two offences for an act of indecency in the presence of a person under 16 years of age following a trial. The maximum penalty for these offences was 14 years and 10 years imprisonment. At the time of the offending the offender was in a relationship with the mother of the two child victims, who were 12 and 13 years of age. The charges against the offender represented an ongoing course of conduct, rather than isolated incidents. The younger of the two victims became pregnant as a result of the offending and underwent a late-stage termination. The offender was 22-23 years of age at the time of the offending, and 42 years of age when he was sentenced. The offender was raised in an isolated Indigenous community in the Torres Strait and in extremely disadvantaged and abusive circumstances, had no prior criminal history at the time of sentence, and was assessed as being of a moderate or medium risk of re-offending. The offender was sentenced to 3 years imprisonment for the first sexual intercourse offence, and 3 years and 6 months’ imprisonment for the offence which resulted in the pregnancy. The offender was sentenced to 12 months’ imprisonment for each of the act of indecency offences. The total sentence was 5 years’ imprisonment with a sentence of 3 years and 6 months for the sexual intercourse with a young person offence which led to the pregnancy.
I note the following matters:
· Nona involved two victims.
· Nona’s victims were 12-13 and 14 years old. The offender’s victim was aged 9 years, 14 years and 15 years at the time of the offending.
· At the time of the offending Nona was 22-23 years of age. The offender was 15 years and 20-21 years of age.
· There was an age gap of 9 and 10 years in Nona. There is an age gap of 6 years in the present matter.
· The offender impregnated the victim and Nona impregnated one of his victims. Both victims had terminations.
· Nona’s offending spanned October 1995 to September 1996. The present offending spanned from 2002 – 2004 and 2010.
· Nona was found guilty. The offender pleaded guilty.
· Nona was 42 years of age at sentence. The offender is 31 years of age.
· Both Nona and the offender had experienced trauma in their childhood.
In R v Deer [2014] NSWDC 24 (R v Deer) the offender was sentenced for four offences of sexual intercourse with a young person between 10 and 16 years of age under authority. The maximum penalty for this offence was 10 years’ imprisonment. The victim of the offences was the offender’s niece. Each of the offences involved penile-vaginal intercourse without the use of protection. One of the charged offences resulted in a pregnancy and subsequent termination. The offender was 23-24 years of age at the time of the offending. The victim was 14-15 years of age. The offender pleaded guilty at the earliest opportunity and received a discount of 25 per cent for doing so. The offender was 41 years of age at the time of sentence, had a minor criminal record which did not include sexual offences, and was assessed as having a low risk of sexual re-offending. The offender was sentenced to 5 years and 3 months’ imprisonment for each of the offences to be served partially concurrently. The total aggregate sentence was 8 years and 3 months’ imprisonment with a non-parole period of 5 years and 4 months.
I note the following matters:
· The relationship between Deer and his victim was one of trust (a niece who was staying with Deer).
· Deer’s niece was 14-15 years old.
· Deer was 23-24 years old. The offender was 15 years and 20-21 years old.
· There was an age gap of 9 years in R v Deer. There is an age gap of 6 years in the present matter.
· Deer engaged in unprotected sexual intercourse with the victim (with the first leading to the victim’s loss of virginity) at Deer’s house on four charged occasions (although there was uncharged sexual intercourse too).
· Both the offender and Deer impregnated their victims. Deer suggested methods for the victim to miscarry. Both victims had terminations.
· Deer’s offending spanned April 1996 to September 1997. The present offending spanned from 2002 – 2004 and February 2010 – July 2010.
· Deer pleaded guilty. The offender pleaded guilty.
Counsel for the prosecution submitted that whilst there are some commonalities between the present matter and the comparable cases, there are also inevitable differences in respect of the facts, and gravity of the offending, and the subjective circumstances of the offenders. Counsel accepted that accordingly the Court would not be able to ascribe “much weight to the comparable cases… provided” (Further written submissions at [25]).
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim and rehabilitation are important sentencing considerations.
In R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [20], Sheller JA stated:
The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim.
In R v Eisenach [2011] ACTCA 2, the Court of Appeal endorsed a passage from R v Dent (Unreported, NSWCCA, 14 March 1991) with respect to sexual offending on children at [86]:
One begins with the proposition ... that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen...
In R v Nelson [2016] NSWCCA 130, Rothman J observed the significance of the age gap between a 13 year old child and an 18 year old adult at [63]-[64]:
It is important to understand the significance of the age difference between the Respondent and his victims. A 13 year old, ordinarily, is in Year 7, (or, possibly Year 8), starting the first year of High School and has only recently reached puberty. An 18 year old is permitted legally to drive, to drink, to attend bars and clubs, to smoke, to work and to vote.
The capacity to drive and obtain alcohol (or visit clubs) is a subtle and overwhelming distinction and mark of “adulthood” compared to a person who is only just learning about relationships generally and who may well envy the freedom that “adulthood” provides. In my view, the difference between an 18 year old, regardless of the subjective circumstances of the Respondent, and a 13 or 14 year old is extremely significant.
In R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 the NSW Court of Criminal Appeal observed the following at [110]:
Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].
Rehabilitation is also an important consideration having regard to the offender’s rehabilitation since the offences. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
Importantly, general deterrence is of paramount significance when sentencing for sexual abuse of children.
In R v TW [2011] ACTCA 25 at [21], Refshauge J adopted the following comments of Maxwell J in Fisher v The Queen (1989) 40 A Crim R 442 at 446:
“... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.”
In Director of Public Prosecutions v STU [2012] TASCCA 7; 21 Tas R 322 at [60], Wood J stated (citations omitted):
The sentences that are imposed must reflect the community's concern about offences involving the sexual abuse of children, recognising the awareness that now exists within our society of the potential for victims to sustain substantial harm as a consequence of such offending. A related objective of the sentencing process is denunciation, thereby reinforcing society's values and expectations of its members. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at [41] as that of 'appropriate vindication and to assuage informed public outrage'.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view. The offences are clearly objectively too serious for an alternative sentence that does not involve a period of full-time imprisonment.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
Relevantly, as I stated in R v Miller [2018] ACTSC 244 at [57], in Veen v R (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
The Court must sentence the offender to full-time imprisonment. This is after a significant period of time, of almost a decade, during which rehabilitation has occurred. The law, nevertheless, in this case, compels that result. These are serious offences, that must be deterred.
It was accepted by the prosecution that the demonstrated progress towards rehabilitation during the intervening period should be given considerable significance on the relevant authorities, and I will do so, in particular in relation to the non-parole period.
All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight: Bugmy at 531. In determining the non-parole period, regard must be had to the rehabilitative prospects of the offender: R v Lian (1990) 47 A Crim R 444.
The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. It is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628-629 applied in Deakin v The Queen [1984] HCA 31; R v Simpson (2001) 53 NSWLR 704 at [59]; R v Ogochukwu [2004] NSWCCA 473 at [33]; R v Cramp [2004] NSWCCA 264 at [34]; Caristo v R [2011] NSWCCA 7 at [27]; R v MA [2004] NSWCCA 92 (R v MA) at [33]-[34]; Hili at [40].
The factors relevant to fixing the term of the sentence are the same as the non-parole period, but the weight given to each factor may differ: R v MA at [33]. For example, a serious offence warrants a greater non-parole period due to its deterrent effect upon others, but the nature of the offence does not assume the importance it has when the head sentence is determined: R v MA at [33], citing Bugmy at 531–532.
The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien v The Queen [2015] ACTCA 47.
I take these principles into account on sentence.
Incident One and relevant sentencing considerations for a young offender
The offender was under the age of 18 when the act of indecency offence in Incident One was committed. Accordingly, he must be sentenced in respect of this offence as a young offender, with regard to the factors contained within ss 133C and 133D of the Sentencing Act.
Section 133C requires the Court to place greater weight on the sentencing purpose of rehabilitation than the other considerations contained within s 7(1) of the Act and have a particular regard to the common law principle of individualised justice.
Section 133D(1) requires, in addition to the relevant considerations contained in s 33, the consideration of the young offender’s culpability for the offence, having regard to his maturity; the young offender’s state of development; and the past and present family circumstances of the offender.
The prosecution correctly submitted that, despite the objective seriousness of this offence, as the offender was a young person when this offending occurred it is open to the Court to impose a non-custodial sentence in respect of this offence. I propose to adopt this course.
Sexual Intercourse Offences
The prosecution submitted that the three sexual intercourse offences were of such gravity that only sentences of full-time imprisonment would achieve the relevant purposes of sentencing. It was submitted further that the incidents were separated in time and constituted very distinct episodes of sexual violation.
It was correctly accepted by the prosecution that in light of the absence of any offending since 2010, and the offender’s present circumstances, prospects of rehabilitation is a relevant consideration (Written submissions at [30]).
Sentence
It must be recognised by the Court that the offences committed against the victim has had a serious and significant impact. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, the Victim Impact Statements, and the subjective matters, including rehabilitation.
This is a difficult sentencing exercise as conceded by both counsel for the prosecution and counsel for the offender (T19.13 & T21.30).
The appropriate sentence for the offence of act of indecency with a person under 10 years of age (CH19/482) is a 2-year good behaviour order from 9 December 2025 until 8 December 2027.
The appropriate sentence for the offence of sexual intercourse with a person under 16 years of age (CC19/13031) is 3 years reduced to 2 years and 5 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of sexual intercourse with a person under 16 years of age (CC19/6404) is 4 years reduced to 3 years and 2 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of sexual intercourse with a person under 16 years of age (CC19/6405) is 3 years reduced to 2 years and 5 months on account of the discount for the plea of guilty.
Overall, there will be a sentence of four years and six months with a non-parole period of 18 months taking into account the appropriate period of concurrency and accumulation and the principle of totality.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of act of indecency with a person under 10 years of age (CH19/482) the offender is sentenced to 2-year good behaviour order commencing on 9 December 2025 and expiring on 8 December 2027.
(c)In respect of the offence of sexual intercourse with a person under 16 years of age (CC19/13031) the offender is sentenced to a term of 2 years and 5 months of imprisonment, commencing on 10 June 2021 and ending on 9 November 2023.
(d)In respect of the offence of sexual intercourse with a person under 16 years of age (CC19/6404) the offender is sentenced to a term of 3 years and 2 months of imprisonment, commencing on 10 February 2022 and ending on 9 April 2025.
(e)In respect of the offence of sexual intercourse with a person under 16 years of age (CC19/6405) the offender is sentenced to a term of 2 years and 5 months of imprisonment, commencing on 10 July 2023 and ending on 9 December 2025.
(f)I set a non-parole period of 18 months, commencing 10 June 2021 and ending on 9 December 2022.
| I certify that the preceding one hundred and sixty [160] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Rhiannon McGlinn Date: 2 July 2021 |
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