R v BH

[2023] NSWDC 276

District Court

New South Wales

Medium Neutral Citation:

R v BH [2023] NSWDC 276

Hearing dates:

17/1/23, 24/3/23, 25/5/23, 5/6/23

Date of orders:

5/6/23

Decision date:

05 June 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 5 years 9 months (7/8/21-6/5/27).

I find special circumstances.

Indicative sentences (5 percent discount taken into account):

Count 1 Act of indecency under 10 – 2 years 4 months

Count 3 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months

Count 4 Indecent assault under 16 – 3 years 9 months with NPP 2 years 6 months

Count 5 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months

Count 6 Indecent assault under 16 – 4 years 1 month with NPP 2 years 9 months

Count 7 Act of indecency under 10 – 2 years 6 months

Count 8 Indecent assault under 16 – 3 years 11 months with NPP 2 years 8 months

I direct that the report of Dr White dated 18/3/23 be forwarded to Corrective Services and Justice Health.

Catchwords:

Crime – Sentence – Act of indecency with child under 10 years – Indecent assault of child under 16 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

AH v R [2015] NSWCCA 51

BB [2021] NSWCCA 283

BhatiavR [2023] NSWCCA 12

Bray [2018] NSWCCA 301

Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194

Ibbotson [2020] NSWCCA 92

Jurd [2020] NSWCCA 91

R v Stoupe [2015] NSWCCA 175

Stoupe [2015] NSWCCA 175

TH [2019] NSWCCA 184

Category:

Sentence

Parties:

NSW DPP – Crown
BH - Offender

Representation:

Ms M Swift for Crown
Mr T Spohr for Offender

File Number(s):

21/31101

Publication restriction:

Statutory non-publication order in relation to the identity of the complaint.

remarks on sentence

1. I note that BH, on 17 January, pleaded guilty to the following offences on an indictment dated 28 October 2022.

2. Count 1, an offence of committing an act of indecency with a child under ten years, being an offence under s 61O(2) of the Crimes Act 1900.

3. Count 3, being an indecent assault of a child under 16 years of age, an offence against s 61M(2).

4. Counts 4, 5 and 6 which are each similar offences of indecent assault of a child under 16 years of age.

5. Count 7, which is an offence of committing an act of indecency with a child under ten years of age, that being an offence under s 61O(2).

6. Count 8, being an offence of indecent assault of a child under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900.

7. Each of the s 61M(2) offences, of which there are five, also have specified a standard non-parole period of eight years imprisonment and a maximum penalty of ten years imprisonment. On the other hand, the offences and there are two of them, under s 61O(2) carry a maximum penalty of seven years imprisonment and do not have a standard non-parole period specified. The maximum penalties and, where applicable, standard non-parole periods are of course important guide posts in the sentence exercise to which I have had regard.

8. The offender pleaded guilty to those offences in full satisfaction of the indictment on the first day set for his trial, and so it is agreed that he is entitled to a discount of 5% on account of the utilitarian value of those pleas of guilty.

FACTS

9. The facts are agreed and in essence are as follows. I note that there is a non-publication provision in relation to anything that might identify the complainant who I will refer to by the initials NP. NP was born on 29 November 2002 and was aged between about five to six years when she was placed into foster care with the offender and his then partner when they were living in Warialda. She remained in their care from 2008 until 2011

10. Count 1 occurred as follows. One evening during the summer of 2010 the complainant was laying in her bed, and the offender’s partner was not home at the time. The offender entered her room wearing some shiny boxer shorts and had his erect penis out of the shorts. He was holding a picture of the complainant’s birth mother upwards on his penis. The complainant recalls his penis being circumcised and the offender said to the complainant, “Look, play with it.” “Look, touch it.” The complainant however rolled over and the offender then left the room. This was the first incident that the complainant can recall.

11. The next offence is count 3, which occurred one morning in August 2009 when the complainant was in the bathroom and she needed to provide a urine sample for a test that had been ordered by a doctor. The offender entered the bathroom and made the complainant stand on the toilet and then pulled down her pants and underpants. The offender had his pants pulled down, his erect penis was exposed and he then pushed his penis against the complainant’s genital area.

12. At the time he had one hand around the complainant’s back and one hand on his penis, the offender continued to press his penis against the complainant’s genital area on four or five occasions and after a time he stopped. The complainant said that this all went on for a couple of minutes.

13. The next offence is count 4 which occurred in October 2009 on an occasion when the complainant had travelled to Sydney with the offender and his partner for a hens party that was going to be attended by the offender’s partner. The accommodation had been arranged and they all stayed at the home of a friend. On the night in question, the offender was looking after the complainant while his partner went to the hens party.

14. The offender and the complainant were in the lounge room and the offender had his penis out over his shorts and commenced to masturbate. He then tried to pull the complainant towards him and pulled one of her hands towards him. The complainant however pulled away and the offender ejaculated onto the floorboards, after which he cleaned up the semen from the floor with a tissue.

15. That night the complainant slept in the same bed with the offender. She remembers the bed being tall and having to climb into it. The offender told his partner that the complainant had slept with him that night because she was scared. The partner said she did not think it was appropriate for this to occur and that it should not happen again.

16. Count 5 occurred during this same trip to Sydney, although on a different day. The circumstances were that the complainant was in the shower one evening when the offender undressed and got into the shower with her and then placed his penis between her legs.

17. Count 6, involved the complainant laying in the bed ordinarily occupied by the offender and his partner. The complainant was in the middle of the bed under the covers watching cartoons on television. The offender entered the room and lay next to her and began to masturbate. The offender said, “Come closer, quick.” He put his arm around the complainant’s shoulders and pulled her closer to him. The complainant then felt the offender put his penis on the outside of her underpants and press up against her vagina.

18. She then felt the offender ejaculate onto her underwear which caused the underwear to become soaking wet. She said she felt really weird and thought it was “gross” and was not sure what the wet was at the time on her underpants but now knows that it was semen.

19. The complainant subsequently threw away her underwear and indeed the offender’s partner has said that she recalls a time between about 2009 and March 2011 when she was cleaning out a bin and found a pair of girl’s underpants.

20. The count 7 offence occurred around the same time, during the summer of 2010. On this occasion the complainant was in a shed in the backyard with the offender who was working on his car.

21. The complainant liked to go to the shed and hammer nails into blocks of wood while she listened to AC/DC music. The offender was standing near his vehicle and was wearing his “mowing clothes”. He had his penis out over his shorts and was masturbating his penis until he ejaculated onto his hand. He then said to the complainant “taste it, it tastes like yoghurt”, and offered his hand to the complainant, but she did not go any closer to him. The complainant did not fully understand what was happening, but knew it was wrong, and so she ran out of the shed. At that time she was between about the age of seven to nine years.

22. The final count, count 8, involved the following facts. This offence also occurred during the summer of 2010, on an evening when the complainant was in the bathroom having a shower. She recalls getting little cars for her eighth birthday and she used to like playing with them in the shower, and that is what she was doing on this particular occasion. The bathroom door had been locked, using a latch. However, it was easily opened from the opposite side by using a knife or similar item to flick the latch up, and that is what the offender apparently did, after which he entered the bathroom, undressed himself, got into the shower with the complainant and touched her all over her body as he was washing her body. The agreed facts note that the complainant used to hate it when he would do this, and she said it felt really weird. The agreed facts also note that this was a regular occurrence that happened once every couple of weeks.

23. Those are the facts of the offences. However, the agreed facts go on to note the following relevant matters:

24. It was in March 2011 that the offender and his partner ended their relationship. After this she and the complainant moved out of the house in Warialda and moved to a different house. The complainant recalls that the offender was not allowed to visit her. However, on two occasions he did so, and on one of those occasions he attempted to hold her hand.

25. In 2016, when she was 13 or 14 years old the offender contacted the complainant via a social media platform known as Instagram, asking where she was living. The complainant told the offender she was living in Sydney, however, that was not true. The conversation at that stage did not progress any further.

26. However, in April 2020, when the complainant was 17 years old, the offender sent to her a friend request on Facebook, which she ignored.

27. The agreed facts note that during one of the offences, the complainant told the offender she would tell his partner what was happening. However, the offender responded by saying that the police would come and the complainant would get in trouble.

28. In 2017 the complainant disclosed to her then foster parent that the offender used to touch her. She detailed the incident where they were under the doona and the offender had ejaculated onto her underpants, as well as the shower incident where he had touched her. The foster parent telephoned the complainant’s DOCS caseworker and detailed the disclosures made by her.

29. In 2019 the complainant and her then foster parent had another discussion regarding the allegations and the foster parent disclosed the allegations to her husband.

30. In 2020 the complainant called the offender’s ex partner and said he “made me touch him”. On 9 June 2020 the complainant provided police with a statement. Since that time the offender has attempted to contact her on several more occasions via Instagram and Facebook Messenger.

31. On 30 November 2020, when the complainant was 18 years old she was contacted again by the offender on Facebook Messenger. The offender messaged her with words to the effect of “Happy birthday 18th for yesterday” and sent her two pictures of a cat. Those being images of the cat that the complainant owned whilst under the care of the offender and his partner. The offender continued to send messages to the complainant on a regular basis from November 2020 to February 2021, asking whether she would like to meet up one day. In one of the messages, the offender said, “Are you still pretty like you were with me?” and “Have you grown into a gorgeous young woman now?”.

32. On 24 December 2020 police obtained a surveillance device warrant. And on 2 February 2021 the complainant participated in a surveillance device deployment, where she met with the offender at a McDonalds Restaurant in Inverell. During that meeting the offender made admissions to the offences, which I have already described.

33. Later that day, that is 2 February 2021, the complainant participated also in monitored phone call with the offender. In that phone call the offender confirmed that he recalled stating to the complainant that he remembers “cumming” on her clitoris while the complainant was asleep. The offender stated also that he remembered the time they went to Sydney and the complainant was in the shower with him and he “had it between her legs”. The offender also stated in this telephone call that he remembered sitting in the lounge room “wanking” and that he “came” on the floor. He said he remembered also going down to the garage, down the back shed together and vaguely remembers “cumming” in his hand, and saying “Taste it, it tastes like yoghurt”. The offender said, apparently, in this telephone call that this went on for years, because he was “in love” with the complainant for years.

34. Shortly after the meeting, the complainant contacted the offender by mobile phone and the offender sent a message, saying, It was “lovely meeting up with you. I still have feelings in my heart for you”. When the complainant asked whether the offender would still want to be sexual with her, the offender replied “That would be awesome to be with you. My heart still has feelings for you. Is that okay with you?”

35. On 3 February 2021, that is the day after that phone call and meeting, the police attended an address in Inverell where the offender was arrested and taken to the police station. He participated in an interview in which he made partial admissions.

36. Those are the factual matters upon which the offender stands to be sentenced.

OBJECTIVE SERIOUSNESS

37. Each of the offences carry significant maximum penalties and the s 61M(2) offences also have a standard non-parole period specified. These matters mark the offences as being serious. There is also the fact that sexual offences committed upon children are presumed ordinarily to result in significant harm which, in many cases, has lifelong effects. I see no basis to approach the offences in this case in any different manner.

38. It is partly for these reasons that such offences must ordinarily result in significant penalties, so as to reflect all of the purposes of sentencing and especially the need for deterrence, both personal and general. Having said all of that, it is of fundamental importance that I make an assessment of the objective seriousness of each of the offences having regard their particular circumstances.

39. The act of indecency in count 1 occurred when the complainant was six or seven years old and therefore well under the threshold age of ten years. There was also a very large age gap between the offender and the complainant. The offence involved the offender exposing his erect penis and telling the complainant to touch it, which she did not. The offence occurred in the home of the complainant and involved a gross breach of trust, in that the offender was her foster father.

40. Furthermore, this offence involved the somewhat bizarre and manipulative action of the offender holding a picture of the complainant’s birth mother next to his exposed penis, presumably, to engage her attention. In my view, the offence sits slightly below the mid-range of objective seriousness.

41. Count 3 was an indecent assault committed on the complainant when she was six years old and therefore well under the threshold age of 16. There was also the very large age gap, to which I have referred already. It was committed in the complainant’s home and involved skin on skin contact between the offender’s penis and the complainant’s genital area after the offender had made her stand up and had pulled down her pants. It was not a brief offence but went on for a couple of minutes. At the time, the offender was in the position of trust of being the foster father. I assess this as being slightly above the mid-range of objective seriousness.

42. Count 4 occurred in Sydney when the offender was staying at another person’s home. However, the offence still involved one committed “in the home”. The offence involved the offender masturbating to ejaculation whilst sitting next to the complainant and trying, unsuccessfully, to pull one of her hands towards his penis. Again, it was an offence committed when the offender was in a position of trust. The complainant at the time was aged six years and therefore well under the threshold age of 16. Again, there was present the very large age discrepancy between the complainant and the offender. I access this as being an offence around the mid-range.

43. Count 5 occurred during the same Sydney trip, when the offender entered the shower with the complainant and placed his penis between her legs and thus involved skin on skin contact. It was committed in a home again and involved the same breach of trust, and occurred when the complainant was well under the 16 year threshold. There was also the very large age gap to which I have referred already. I regard the offence as slightly above the mid-range.

44. Count 6 occurred when the complainant was between seven and nine years of age and thus, well under the 16 year threshold. There was also the significant age discrepancy between the two of them. The offence occurred in the home of the complainant when the offender masturbated to ejaculation onto the complainant after rubbing his penis against her vagina through her underpants. Again, it involved a gross breach of trust. I regard the offence as being at or slightly above the mid-range.

45. The count 7 act of indecency offence occurred also when the complainant was between seven to nine years of age, being slightly under the ten year threshold. Again, there was the significant age discrepancy. Again, there was also the same breach of trust and a situation where the offence occurred within the home. The occasion being in a shed when the offender masturbated in front of the complainant to ejaculation and then invited her, unsuccessfully, to “taste” his semen. I regard it as a mid-range offence.

46. The final count, count 8, is an indecent assault that also occurred when the complainant was well under the 16 year threshold, being about seven to eight years old. Once again, there was the significant age gap between her and the offender. Once again, the offence involved the significant breach of trust, given that the offender was the complainant’s foster father and this offence also was committed in the complainant’s home when the offender unlocked the bathroom door, undressed and entered the shower with the complainant after which he touched her all over her body. I regard this as a mid-range offence.

47. As already noted, in assessing the objective seriousness of each of the offences, I have taken into account that the offences were committed in the context of a foster parent/child relationship with the gross breach of trust that this involved. However, I do not conclude that the offender had set out to take on the foster role so as to commit these offences. Rather, I am satisfied that the offender took advantage of and exploited a situation in which he found himself, and then repeatedly used the complainant for his own sexual gratification.

48. I note also the indication in the agreed facts that the offences before the Court were not the only times that the offender engaged in some sort of sexual conduct in the presence of the complainant. The offender is of course not to be punished for any such other conduct, and nor does this aspect aggravate any of the offences before the Court. However, the fact that there were other occasions is relevant, in that the offending cannot be said to be mitigated by reason of these being aberrations or isolated lapses in an otherwise blameless life.

SUBJECTIVE MATTERS

49. Turning then to subjective matters relating to the offender himself. He is now aged 63. He was aged between about 49 and 51 at the time of the offences. His criminal history prior to his arrest involves three offences of driving with the prescribed concentration of alcohol, for which he was convicted and fined on each occasion. I note that the last PCA offence was many years before these sexual offences began.

50. I have had regard to these PCA offences, but given that they are unrelated to the offending now before the Court, I treat the offender as relevantly being a person of prior good character.

51. However, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 provides that:

“in sentencing for a child sex offence the good character of an offender is not to be taken into account as a mitigating matter if the court is satisfied that this was of assistance to the offender in committing the offence”.

52. I am satisfied that this provision applies in this case, in that the offender’s prior good character was of assistance to him in becoming a foster parent and thus obtaining access to the complainant and committing the offences. See AH v R [2015] NSWCCA 51; R v Stoupe [2015] NSWCCA 175 at para 86; and Bhatia v R [2023] NSWCCA 12 at paras 138 and following. In making this finding I repeat as I said earlier, that I do not suggest that the offender intentionally set out to be a foster parent so as to commit these offences. Rather, he took advantage of a situation in which he found himself. Therefore, I do not treat the offender’s prior good character as a mitigating factor.

53. The offender’s subjective case has been placed before the court by means of his affidavit of 22 May 2023, a neuropsychological report of Dr White, and a Sentencing Assessment Report which was ordered by the court.

54. The report of Dr White notes the following history from the offender. He grew up in Gravesend, in Northern New South Wales, on a farm run by his parents. His father was engaged in work on the farm most days and his mother was the primary caregiver, with whom the offender had a good relationship. He denied any history of domestic violence or sexual abuse as a child. He did, however, report a history of constant bullying at school.

55. The offender lived and worked on the farm until his mid-thirties, when he moved to a house in town with his wife, who had two teenage children from a previous relationship. This appears to have been around the time that the offender injured his back and was unable to continue working. He has been on a Disability Support Pension since 1997, apparently due to his back injury, and to his poor literacy skills.

56. The report of Dr White notes that the offender suffered a number of injuries as a child, many of them sport related, and that he now suffers chronic back pain and problems with his knees, and is hoping to receive bilateral knee replacements.

57. He told Dr White that his wife later wanted to foster children, and although he was not keen on the idea, they began fostering around 1999. The complainant was their first permanent foster child. The offender claimed that her behaviour was very challenging, and that in around 2009 his wife and the complainant moved out of the home, although he maintained some contact with his wife for a time after this.

58. The offender also reported a history of some mental health problems involving depression and suicidal thoughts. In 2013, he was prescribed anti-depressant medication.

59. The most significant aspect of Dr White’s report, however, is its finding as to the offender’s intellectual functioning and current mental health. Although full-scale IQ testing was not able to be done, Dr White concluded that the offender’s verbal comprehension index, which measures verbal skills, including word knowledge, verbal abstraction and general knowledge, placed him in the “borderline” range, at the fourth percentile. This means that he performed equal to or better than only 4% of the population. On the perceptual reasoning index, which measures visual based reasoning, the offender was low average, and at the twelfth percentile, and equal to, or better than only 12% of the population.

60. The offender’s basic auditory attention was assessed as borderline, and his working memory and new learning and memory for verbal material were both “extremely low” and in the first percentile, which means that 99% of the population would score higher than him.

61. Consistently, with these results the offender’s verbal abstract reasoning skills were assessed as borderline, and visual reasoning as low average. He did not appear to have accurate knowledge of the alphabet.

62. Overall, Dr White concluded that the offender demonstrated borderline to low average intellectual functioning, with significant impairment in aspects of cognition, including new learning and memory, working memory, and possibly some aspects of executive function. Persons with borderline function may typically experience some degree of difficulty in daily functioning, while “extremely low” functioning typically indicates significant impairment of a person’s daily functioning without support and/or intervention.

63. Dr White also says that the offender presented with symptoms consistent with depressed mood and anxiety, which are likely exacerbated in response to his current situation and environment, which, of course, at the moment includes his incarceration.

64. Dr White’s report says that it is likely that the offender suffered from these cognitive impairments and mental conditions at the time of the offending. She adds, however, that she could see no direct connection between the offender’s mental and cognitive state and his offending, but that it is likely these problems made him more vulnerable to showing poor judgment and decision-making, and less likely to comprehend nuances in communications and interactions with others. The offender, she says, may be more vulnerable, particularly in times of stress, to demonstrate less inhibitory control of his behaviour.

65. In Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194, McClellan, the then Chief Judge at Common Law, summarised the principles that apply when an offender is suffering from a mental health issue:

“Firstly, where the state of a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence.

Secondly, it may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.

Thirdly, it may mean that a custodial sentence may weigh more heavily on the person and because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.

Fourthly, it may reduce or eliminate the significance of specific deterrence.

Fifthly, however, and conversely, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence”

66. Applying those principles to this case, I make the following observations and findings:

67. I am not satisfied that his mental conditions contributed to the offending in any direct sense. However, I am satisfied, as Dr White said, that it made him more vulnerable to make poor decisions due, in part, to his tendency to disinhibition and his reduced capacity to think through his actions and their consequences. I am satisfied that this reduces his moral culpability to some, although not a substantial degree. I am also satisfied, for the same reasons, that the importance of general deterrence is reduced to some, but not a substantial, degree. It seems to me, however, that personal deterrence remains an important factor because, while I am satisfied that the offender’s mental state may be more prone to inappropriate and disinhibited conduct, I have no doubt that he always knew his actions were wrong, both morally and legally.

68. I am satisfied by reference to the third aspect referred to in De La Rosa that the offender’s period in custody will be made more difficult due to his mental state, in that he is likely to suffer increased depression and anxiety, and perhaps likely to be bullied and have difficulties fitting in with other inmates, staff, and prison rules and routine.

69. In relation to the fifth element summarised from De La Rosa, I make the following findings:

70. In my view the offender’s tendency to make poor and disinhibited decisions, as well as his obvious sexual interest in young girls, makes him more of a danger to the community. In my view this aspect should exert some upwards pressure on the sentence to be imposed, given the need for community protection and personal deterrence of future similar offences.

REMORSE

71. There is no remorse in this case, especially in light of the observations in the sentencing assessment report that the offender attempted to justify his behaviour, blame the complainant and showed no empathy. This is also consistent with the observations by Dr White, that the offender described resentment towards the complainant for allegedly causing difficulties in his marriage. The fact that there is absolutely no remorse or insight in this case is emphasised by the fact that, as recently as February 2021, after the offender had met up with the complainant at McDonalds, he was still expressing an interest in pursuing sexual contact with her, as is indicated in the Facebook Messenger exchange, in which he expressed a continuing interest in having some sort of sexual relationship with the complainant.

RISK AND REHABILITATION

72. The Sentence Assessment Report notes that the offender has been assessed as medium/low risk on the LSI-R assessment tool, while Corrective Services’ psychologist, Mr Yates, notes that the offender is below average on the Static-99 assessment tool. These are both, of course, actuarial testing tools, which do not necessarily reflect the actual risk of a particular individual. In this regard Mr Yates notes that the offender’s behaviour suggests that he may, on occasion, experience difficulties managing his sexual urges, and that his history may demonstrate a sexual interest in juvenile females. These comments, to me, involve a significant understatement, given that the offender committed a series of serious sexual offences against the complainant over a period of at least two years and continued to express a sexual interest in her as recently as 2021 when exchanging Facebook messages.

73. In my view, the offender continues to represent a significant risk of similar offending, if given the opportunity. His risk can only be said to be mitigated by his advancing years, and his likely limited access to other potential victims.

COVID

74. I have taken into account the fact that the offender has been in custody, although not continuously, since February 2021, during some of the worst restrictions associated with the COVID pandemic. I am conscious of the fact that the pandemic has had a disproportionate impact on persons in custody, due to restrictions on access to services, contact with outsiders and frequent lockdowns. The offender’s own affidavit attests to the fact that he has been impacted significantly by these issues. There is also the possibility that the pandemic will continue to create similar problems into the future, making any time in custody more difficult.

75. I take into account, also, the offender’s various physical problems that are set out in the material and in his affidavit. I have no doubt that these, and his increasing age will also make custody more arduous for him.

DETERMINATION

76. In determining the appropriate sentences for each offence and the final overall sentence, I have had regard to a number of decisions of the New South Wales Court of Criminal Appeal including the following. BB [2021] NSWCCA 283; Ibbotson [2020] NSWCCA 92; Jurd [2020] NSWCCA 91; TH [2019] NSWCCA 184; Bray [2018] NSWCCA 301; and Stoupe [2015] NSWCCA 175. While I do not suggest that any of these cases are directly comparable to the case before the Court, they have provided me with some guidance and a broad comparison point with my own assessments.

TOTALITY

77. I have given careful consideration to totality principles to ensure, so far as I can, that the overall final sentence is one that addresses the various purposes of sentencing, but which is not an inappropriately crushing sentence.

78. In my view there does need to be some degree of accumulation of the sentences, given that they each involve separate incidents committed over a considerable period of time. Given that I intend to impose an aggregate sentence, the accumulation to which I have just referred will be notional.

79. I am satisfied of the purposes of s 5 of the Crimes (Sentencing Procedure Act) 1999 that no penalty other than imprisonment, and indeed full‑time imprisonment, is appropriate. I have had regard to the purposes of sentencing set out in s 3A of that Act, which I do not intend to recite.

80. The offender is convicted of each of the offences. As I have said, I intend to impose an aggregate sentence.

81. I make a finding of special circumstances for adjusting the ratio between head sentence and non-parole period. I make that finding based on this being the offender’s first period in custody, the difficulties likely to be experienced in custody by reason of his mental state and health issues, and the need for a substantial period of supervision once he is released to parole.

82. The indicative sentences are follows. These are not the sentence that I will ultimately impose, I will make that clear at the end of these remarks.

83. The indicative sentences are as follows:

84. Count 1, two years four months imprisonment. That is based on a starting point of 30 months from which I have deducted 5% by reason of the plea of guilty.

85. Count 3, four years three months with a non-parole period of two years ten months. That is based upon a starting point of four years six months before the 5% discount.

86. Count 4, three years nine months with a non-parole period of two years six months. That is based upon a starting point of four years from which 5% has been deducted.

87. Count 5, four years three months with a non-parole period of two years ten months. That based on a starting point of four years six months before the plea of guilty discount.

88. Count 6, four years one month with a non-parole period of two years nine months. That sentence is based upon a starting head sentence of four years four months before the 5% reduction.

89. Count 7, imprisonment for two years six months.

90. Count 8, three years 11 months with a non-parole period of two years eight months. That is based upon a starting point of four years two months from which 5% has been deducted.

91. Indeed in relation to count 7 I omitted to say that the starting point was 32 months from which 5% has been deducted.

92. As I say, those are the indicative sentences.

93. The aggregate sentence which I impose is one of eight years six months head sentence. I impose a non-parole period of five years nine months.

94. It was agreed in the sentencing hearing that the appropriate starting date for that sentence should be 7 August 2021, which I so order. The head sentence, therefore, will expire on 6 February 2030. The non-parole period will expire on 6 May 2027.

95. I direct that a copy of the report of Dr White dated 18 May 2023 be forwarded to the Department of Corrective Services and also to Justice Health.

96. Ms Crown, Mr Spohr, anything arising about any of those figures or anything else?

97. SWIFT: No, your Honour.

98. SPOHR: No, your Honour.

99. SWIFT: Just I would indicate to the Court that there was a ten year AVO which was done by consent in the Local Court in relation to this matter. So there is no issues that this Court has to deal with in relation to the conviction.

100. HIS HONOUR: All right, thank you.

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Decision last updated: 13 November 2025