R v BM

[2024] NSWDC 94

District Court

New South Wales

Medium Neutral Citation:

R v BM [2024] NSWDC 94

Hearing dates:

14 March 2024

Date of orders:

20 March 2024

Decision date:

20 March 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) The offender is convicted of each of the five offences before the Court;

(2) I impose an aggregate sentence of 6 years and 10 months. Taking into account my finding of special circumstances, the non-parole period will be a ratio of 65%, meaning that the non-parole period will be 4 years and 5 months; and

(3) The sentence will be backdated, to commence on 20 December 2022 and expire on 19 October 2029, with a non-parole period expiring on 19 May 2027.

Catchwords:

CRIME – sentence – child sexual offences – rejection of offenders evidence regarding childhood sexual abuse

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Criminal Procedure Act 1986 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

DH v R [2022] NSWCCA 200

Ragg v R [2022] NSWCCA 150

R v RE [2023] NSWCCA 184

Minehan v R [2010] NSWCCA 140

Strbak v R (2020) 376 ALR 453; [2020] HCA 10

DS v R; DM v R [2022] NSWCCA 156

R v Qutami (2001) 127 A Crim R 369

R v Palu (2002) 134 A Crim R 174

Lloyd v R [2022] NSWCCA 18

Category:

Sentence

Parties:

BM (Offender)
Office of the Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr G Kidd (Crown)
Mr B Bickford (Defence)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Defence)

File Number(s):

2022/383750

Publication restriction:

s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainant

JUDGMENT

1. These are my remarks on sentence in relation to the matter of BM, who I will refer to as “the offender” in these proceedings. The offender is before the Court for sentencing in relation to five offences, specifically:

1. Sequence 1 is an offence under s 66DB(a) of the Crimes Act, that is, intentionally sexually touching a child above 10 years of age but below 16 years of age. For that offence there is a maximum penalty of 10 years with no standard non-parole period. That is sequence 1.

2. Sequence 2 and 13 are two offences under s 66DA(a) of the Crimes Act. That is the offence of intentionally sexually touching a child below 10 years of age. The maximum penalty for that offence is 16 years with a standard non-parole period of eight years.

3. Sequence 11 is an offence under s 91H(2) of the Crimes Act, being the offence of possessing child abuse material where there is a maximum penalty of 10 years. There is no standard non-parole period for this offence.

4. The final matter before me is sequence 5, an offence under s 17(2) of the Child Protection (Offenders Registration) Act. That offence relates to failing to comply with certain reporting conditions.

2. I note that the offence at s 17(2) of the Child Protection (Offenders Registration) Act is before the Court by virtue of s 166 of the Criminal Procedure Act 1986 (NSW). It is permissible to incorporate sentences for related matters transferred to the District Court under s 166 into a statutory aggregate sentence, which is what I propose to impose in this instance.

3. Both the maximum penalties I have set out and the standard non-parole periods operate as legislative guideposts representing the legislature’s assessment of the seriousness of each of these offences.

Plea of Guilty

4. The offender entered a guilty plea in relation to each of these charges in the Local Court on 13 September 2023 and he is entitled to a 25% discount for that reason on the sentence for which I would otherwise have imposed. I will take that 25% discount into account.

FACTS

5. The facts of these offences are as follows. For sequences 1, 2 and 13 there are three victims. At the time of the offences the victim known as SM was aged 11, MM was aged 7 and IM was aged 6. The offender was 26 years of age at the time of the offending conduct and is now 28. He is the half-brother of the victims, but I note that he did not live with them.

6. During the evening of Sunday 16 October 2022, the offender was at the house occupied by his father, stepmother and a number of his half-brothers and sisters, including the three victims I have just referred to. IM and SM were present in IM’s bedroom. IM was wearing pyjamas and lying on her bed. The offender came into her bedroom and sat on a chair. As he did so, he touched the outside of IM’s vagina through her pyjamas. That is sequence 2.

7. Later that evening the offender was in the loungeroom watching television with SM, IM and MM. Everyone else had gone to bed or at least to their respective bedrooms. The offender, SM and MM were in front of the television sitting on separate chairs. IM was lying on a mattress on the floor. Someone turned the television off and the room went dark. SM and IM were, by this time, asleep. SM woke up with the offender touching her on the vagina and on the bottom. He did this with his hand under her clothing but over the top of her underwear. This was sequence 1.

8. Then MM woke up to the offender touching her bottom and vagina but this time it was on the inside of her underpants, directly onto her skin. This was sequence 13.

9. SM and MM went to an older sister and reported that the offender had touched them and demonstrated to their sister precisely what had occurred. The following day disclosures were made about these matters to a number of people including the deputy principal at the victims’ school. The victims participated in JIRT interviews over the next couple of days.

10. Notwithstanding the very early reporting of these matters in October 2022, the offender was not arrested until 20 December 2022, two months later. The offender agreed to participate in an interview with police. He denied any wrongdoing. He told police that he had recently obtained Snapchat. He also told police that he had joined Tinder but stated that he had deleted that app straight away. He told police that his phone had been hacked. This was relevant because an analysis of his phone by police revealed he had the following apps: Snapchat, Facebook, Plenty of Fish and Tinder. He was also found to have used his phone to conduct an internet search for “teen girls on Snapchat” and “girls on Snapchat naked”. As the offender was already a registrable person under the Child Protection (Offenders Registration) Act, he was under an obligation to inform police of the existence of those social media apps. As he had not reported to police that he had these apps, this conduct gave rise to sequence 5 which is now before the Court.

11. An analysis of the phone also revealed a single image of a female child and a 14 second video of a female child aged between 14 and 16 years of age semi-naked and masturbating. This image and video were stored on 15 November 2022, about a month after the offending conduct. The image and the video falls within what is described as the Interpol baseline category 2. That image and video give rise to sequence 11 before the Court.

Objective seriousness

12. I note at the outset that none of the matters involve force and that each of the offences occurred relatively quickly. All offences involved a breach of trust by someone known to the victims, that is, their half-brother. All offences were opportunistic and not from any planning. I make these points because one of the matters that the Court is required to assess is the objective seriousness of the offences.

13. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. I will now assess each of the matters individually.

14. Both parties referred to the offending by way of reference to where the objective gravity lies on a range of seriousness. More recent authority such as DH v R [2022] NSWCCA 200 at [31]–[33]; Ragg v R [2022] NSWCCA 150 and R v RE [2023] NSWCCA 184 at [35] have stated that while sentencing judges are required to assess the objective seriousness as an essential element of the instinctive synthesis, the judge is not obliged to specify the seriousness of an offence by reciting “some mantra invoking comparisons about where the sentence falls on some hypothetical or geometrical continuum of seriousness”. In other words, there is no requirement for a sentencing judge to utilise the concept of low range, midrange or any other range when it comes to dealing with the seriousness of offending.

15. Notwithstanding the parties’ submission, I do not propose to adopt the range approach.

16. With respect to the offence at sequence 1 involving SM, the offender submitted that that matter was a matter in low range. He acknowledged that based on the fact that the victim was 11 in circumstances where the range is 10 years of age to 16 years of age for that particular offence, the victim in that instance was at the lowest end. Counsel for the offender submitted that the disparity in age between the victim and the offender was 15, making the point that in other instances of this type of offence the offender could be considerably older. It was also submitted that the conduct was very brief. I accept those submissions.

17. However, the Crown submits that this was conduct which was more serious than the offender was prepared to concede, submitting that it was a midrange offence, taking into account the breach of trust and the fact the victim was sleeping. Both parties agreed that the brevity and spontaneous nature of the conduct was important, which I also accept. In assessing the objective seriousness of the matter, I have also taken into account the fact that there was a lack of grooming. There was an absence of any threat of violence and there was no evidence of arousal by the offender or skin-to-skin contact. I have taken all of those matters into account when assessing the objective seriousness of the matter.

18. With respect to sequence 2 involving IM, the offender submits this was low range, notwithstanding that the victim was six years of age, but Counsel for the offender noted that this was a particular offence where the age range begins at zero. I accept that. The disparity in age was 20 years between the victim and the offender, whereas, as I said in relation to the earlier offence, sometimes it can be significantly more. The conduct was through clothing and very brief.

19. The Crown submits that it is midrange, taking into account the breach of trust and the fact that the victim was in her bedroom when it occurred. Again the brevity and spontaneous nature of the conduct, the lack of grooming, the absence of any threat or violence and the fact there was no evidence of arousal by the offender, nor skin-to-skin contact, are all relevant to my assessing of objective seriousness.

20. With respect to the offence at sequence 13 involving MM, this matter was slightly different. In this instance the offender again submits that it is low range based on the fact that the victim was seven years old and the disparity in age was 19 between the victim and the offender. Again, to repeat what I have said earlier, there was no evidence of arousal and the conduct was brief and spontaneous. However, in this case there was skin-to-skin contact between the offender and the victim. With respect to this offence, it as a matter of some importance that it was skin-to-skin contact and not simply the offender touching the victim over any clothing.

21. With respect to the offence involving the child pornography, the offender submits it was a single video and image and towards the lower end of the range. The Crown submits that it was midrange because of the nature of the video and taking into account the considerations set out in the authority of Minehan v R [2010] NSWCCA 140 at [94]. The number of matters set out in Minehan for consideration by the sentencing court include whether children were used in the creation of the pornographic material, its nature and its content.

22. These are offences which potentially pick up conduct involving an offender who may well have hundreds, if not thousands, of images collected over a long period of time and images which are far worse than that which appears to be involved in this matter. It does not strike me as a particularly serious example of this type of offence.

23. This stands in contrast to the three offences I have already described involving IM, SM and MM, all of which are serious examples of offending of that nature but by no means the most serious.

24. With respect to the offence involving the reporting breach, it is submitted by the offender that this is a low range example of an offence of this nature because the apps that were found to be on his phone were not necessarily used and it was unclear how long he had them.

25. While I accept that, it is important to remember that this is an offence which is serious because it demonstrates a deliberate disregard by an offender of the obligations he was under not to have such apps or, as the case may be, to at the very least report them to police. As indicated by his explanations to police, which I have already set out, he did not immediately take responsibility for the apps being there, in that he referred to his phone having been hacked. It is unclear to me how long he maintained that position but, ultimately he did accept that he was aware of the apps.

26. I have considered the offender’s moral culpability. I have not found that the offender’s moral culpability is reduced for reasons of his mental health or for any other reasons, which I will detail shortly, beyond the fact that his history of childhood deprivation may well have led to a significant and ongoing drug abuse issue affecting his ability to properly understand the moral wrongfulness of his actions. For that reason and for that reason alone, I am prepared to slightly reduce his moral culpability for this conduct, that is, childhood deprivation.

AGGRAVATING FEATURES

27. With respect to the statutory aggravating features at s 21A(2) of the Crimes (Sentencing Procedure) Act, I am conscious not to take any of the features set out therein into account where they form part of the elements of the offence. The Crown has submitted that the aggravating feature at s 21A(2)(d) applies, that is, that he has a record of previous convictions.

28. Mr Bickford, who appeared for the offender at sentence, makes the point that the section expressly refers to “convictions” as opposed to “conviction”. Mr Bickford noted that there is only one previous conviction which is relevant to this matter, being another serious personal violence offence which occurred in October 2016.

29. The fact that the offender has a record of prior convictions is not, of itself, an aggravating feature under this section. It is only an aggravating feature where the record gives rise to the considerations set out in Veen v R (No 2) (1988) 164 CLR 465 as being relevant not to increase the objective seriousness of the offence committed but, rather, that retribution, deterrence and the protection of society may indicate a more severe sentence is warranted. That is the case here and I will take it into account for that purpose.

ANTECEDENTS   

30. The offender has a number of entries on his criminal history including the offence I just referred to from October 2016 which is similar although, in my view, more serious than these matters. That 2016 offence involved the offender breaking into the home of a young person via a window at night and going into the victim’s bedroom. The victim in that instance was a girl who was aged eight years of age. The victim was in her bed and the offender pulled up her nightdress, pulled down her underpants and used his fingers to rub her vagina.

31. As I say, the offender’s antecedents operate to disentitle him to any leniency and will be taken into account to demonstrate the importance of specific deterrence in assessing the appropriate sentence with respect to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act.

SUBJECTIVE MATERIAL

32. A number of pieces of subjective material were placed before me. They were:

1. a psychological report of Caroline Hare dated 20 December 2023;

2. a letter from John McManis, a lawyer appearing for the offender in civil proceedings connected to allegations of child sexual abuse which the offender claims to have suffered;

3. a letter from Corrective Services regarding his participation in a Narcotics Anonymous programme; and

4. two letters from his brothers setting out their support for him.

33. The offender did not give oral evidence at the sentencing hearing. Obviously, a sentencing judge cannot draw inferences adverse to an offender simply because he or she does not give evidence at their sentencing proceeding: Strbak v R (2020) 376 ALR 453; [2020] HCA 10. However, given the problems that the offender suffers with literacy and his inability to write a letter to the Court expressing his remorse, his decision not to give evidence denied the Court the opportunity to hear from him directly with any expression of remorse or contrition.

34. It has also made it more difficult for the Court to make any findings with respect to his personal circumstances at the time the offences were committed. Critically, given the evidence I have been asked to accept about him suffering from childhood sexual abuse and how this abuse affected his life, his decision not to give evidence has meant it is not possible to accept the version of his childhood that he now puts forward to the Court beyond matters of his father’s drug use and the impact that that has had upon him. I will detail that matter shortly.

MITIGATING FACTORS

35. With respect to mitigating factors set out in s 21A(3) of the Crimes (Sentencing Procedure) Act, I find that the offences were not planned and that they were spontaneous.

REMORSE

36. With respect to the question of remorse, Mr Bickford made the very valid submission that when it comes to assessing whether an offender has expressed remorse and contrition, the Court should be conscious that a person who may not be well educated or capable of clearly expressing themselves should not be considered by the Court to have failed to express feelings of remorse and contrition simply because they did not use the words a lawyer may expect such a person to use. I fully accept that submission.

37. However, in this instance the Court does not even have any meaningful statement from the offender. At p 9 of Ms Hare’s report, she states:

“Despite his inability to recall the contact offences, BM reported accepting culpability. He offered remorse for his actions and indicated a level of victim empathy, noting the complainants would be emotionally impacted by his conduct.”

38. That is the high-water mark of the remorse that has been expressed in this matter. In the circumstances, I do not find that that hearsay statement sufficient to find on the balance of probabilities that there is genuine remorse from the offender in the way described in s 21A(3)(i).

MORAL CULPABILITY ISSUES

39. With respect to issues of moral culpability, there are two paths to a reduction in moral culpability. One is what is commonly referred to as Bugmy factors by which the effects of profound childhood deprivation are to be used by the Court in the exercise of its sentencing discretion, taking into account that such deprivation “may leave its mark on a person throughout his or her life and may compromise the person’s capacity to mature and learn from their experience”.

40. The additional path to a reduction of moral culpability is where the offender’s mental health condition has a causal connection with the offence. In those circumstances, the mental health condition may affect both an assessment of moral culpability and objective seriousness. The proposition comes from the case of DS v R; DM v R [2022] NSWCCA 156 at [96]. The nature of the impairment, the nature and circumstances of the offence and the degree of connection between them must all be considered. In such a case, objective seriousness might be reduced substantially, indicative in the conduct not being planned, premeditated or without malice.

Mental Health

41. In this instance, as I have already noted, the offender did not give evidence on sentence but relied upon material contained in the psychological report of Caroline Hare. In reaching the conclusions I am about to set out, I have had regard to what the Court of Criminal Appeal has said in cases such as R v Qutami (2001) 127 A Crim R 369 and R v Palu (2002) 134 A Crim R 174 which refer to the caution a sentencing court should have with respect to relying upon untested hearsay statements set out in third party reports. In making that statement, I do not overlook what was said by the Court of Criminal Appeal in Lloyd v R [2022] NSWCCA 18 at [43] – [47] about Qutami and the fact that the weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.

42. In her report, Ms Hare states the following - and I am summarising the report - the offender was the middle of five sons. His parents separated when he was approximately five years old and he remained in his mother’s primary care and describes her as “amazing” (I note his eldest brother has offered to accommodate him upon his release and his brothers, who wrote letters to the Court, are keen to support him in any way they can, particularly with respect to maintaining his sobriety in the future). Two of his brothers are medicated for anxiety disorders and two have criminal convictions, although they have not spent time in custody.

43. The offender reported that his father misused drugs and consistently prioritised his drug use over the care of his children, including the offender. That is certainly a matter that I have taken into account when it comes to assessing BM’s moral culpability. Ms Hare also notes that the offender’s father re-partnered after separating from the offender’s mother and went on to have eight children, including the three complainants who are in this matter before the Court today.

44. The offender reported using drugs and alcohol during his early adolescence, leading him to cease attending school and stop engaging in prosocial pursuits. The offender reported being sexually abused on a couple of occasions at the age of 12 or 13 by an adult male church member and that he is currently pursuing a civil claim against the church. Ms Hare reports that she was told by the offender that he had nightmares and that those nightmares triggered him to misuse drugs and alcohol and that they were connected to the abuse that he suffered as a child. As an aside, I note that apart from that reference, there is no mention of attending church or having anything to do with any figures from the church, so it is unclear how this abuse may have come about.

45. Returning to Ms Hare’s report, she states that the misuse of illegal drugs has dominated his life, resulting in an unstable lifestyle, including never having gained independence and remaining living with his mother, prior to his current incarceration.

46. He reported learning about sex prematurely, through the sexual abuse he experienced as a child 12 or 13 years of age. He reported to Ms Hare viewing pornography, during adolescence and developing an attitude that sex was simply a party thing, a one night thing. Ms Hare observed that, in her view, this would indicate he lacks any emotional intimacy. He reported having between 15 and 20 sexual partners.

47. The offender reported to Ms Hare experiencing learning and behavioural problems at school. He was expelled from school for fighting and persistent truancy, during year 9. His transgression into substance misuse underpinned his truanting but he also had learning difficulties. He did not receive any assessment for his learning difficulties, due to financial disadvantage, which is another matter I have taken into account, in assessing his reduced moral culpability.

48. His longest period of employment was two months. He has left jobs without another job being lined up and he has done that, in response to conflict with colleagues or supervisors. Prior to his incarceration, he was claiming a JobSeeker payment. He reported socialising exclusively with substance users and this has made he reflect that he will need to make some changes to his social network, upon his release from custody. He has never had what is described as a “romantic union” and has developed a lack of interest in developing such a relationship.

Substance misuse and gambling history

49. Ms Hare also referred, in some detail, to the offender’s substance use. Ms Hare refers to the offender commencing smoking cannabis, at the age of 13 and that he had regularly seen his father and others, in his local community, smoking substances of an illegal nature throughout his life and that after his sexual abuse, he claims to have used cannabis, in order to relax. He had also been using methamphetamine, on a daily basis, for some time and that he enjoyed using this because it kept him awake for extended periods, during which time he did not have nightmares, thinking about the childhood sexual abuse. He had continued using methamphetamine, alcohol and cannabis, until his arrest for the 2016 offences. He reported having maintained abstinence for the three years in which he spent in custody, in relation to that matter and for six months following his release.

50. After his release in 2019, he reported agreeing to do an errand for his father, which involved collecting illicit drugs and it was at that point that he relapsed and began using drugs himself. He started reusing illicit substances, at that point, on a daily basis, primarily cannabis and ice or methamphetamine, from around the midpoint of 2020, up until his arrest for these matters in December 2022.

Criminal history and current offences

51. The offender reported being drug affected, at the time he committed the offences before the Court today. He reported that he is unable to recall his thoughts, his feelings or behaviours, during the offending. He further reported an abstinence of any sexual thoughts, about the complainants, prior to or after the offending. Despite his inability to recall the offences, he offered remorse for his actions and indicated a level of empathy. I have already referred to that.

52. The offender set up dating accounts, Tinder and Plenty of Fish, on his phone. He denied to Ms Hare that these apps were obtained in order to seek any partnership. He reported using the social media account, Snapchat and Facebook, to contact drug dealers and his brothers. He acknowledged having searched the internet for intimate images of teen girls, noting that he was seeking “something different to watch” because he had become bored with pornographic images involving adult women.

53. In addition to taking that history from the offender, Ms Hare conducted two formal psychological risk assessments on BM. These well-known tests are referred to as the Static 99-R and the Stable-2007. As their names suggest, these tests offer an objective test to an offender’s static and dynamic risk factors for reoffending. The static risk factors are relatively fixed aspects of an individual’s history, such as age and previous offending, whereas the dynamic risk factors are psychological factors, that can change over time, through intervention.

54. Of significant concern to the Court, is that Ms Hare made two conclusions. Firstly, in relation to the static risk factors, the offender was considered to be at the well above average risk category for being charged with a further sexual offence. He presented to Ms Hare as someone with a perceptively higher risk, than the typical offender and likely has significant criminogenic needs, across multiple domains.

55. The second conclusion that Ms Hare reached was in relation to the dynamic risk assessment, the offender is in the high risk and need for treatment category. The offender was assessed as experiencing certain problems, including a hostility towards women, based on proffered views that women are argumentative and difficult to get along with; that sex was regarded as something for coping with, based on his account of seeking pornography depicting teens, in response to boredom. And, cooperation with supervision.

56. Ms Hare found that he presents with a history of placing himself in risky situations, that increase his risk of reoffending. Ms Hare concluded that combining the results of the static and the dynamic risk assessment, in her view, placed him in the overall category of a very high risk. Ms Hare concluded, at para 49 of her report, as follows:

“He presents longstanding lifestyle instability, which revolves around his substance dependence and untreated mental health concerns, which onset, in response to his experience of childhood sexual abuse, which he ameliorated through substance misuse. I believe his rational and sexual functioning was also impacted by his experience and subsequent conduct, such that he developed a persistent pattern of engaging in casual, sexual encounters, that were devoid of emotional connection”.

57. I will return to that conclusion shortly.

58. Ms Hare concludes that the offender presented with mental health difficulties, that could make custodial experience more challenging. She suggested that he continue to access a psychotropic medication to regulate his mental health and he should be continually monitored. I certainly take all of those matters into account as part of his subjective case.

Psychological report of Dr Bench

59. Another report was placed before the Court, although this time the report was one generated in connection with the October 2016 offence and this was supplied to the Court by the Crown.

60. This report was from psychiatrist Dr Bench dated 14 August 2017. Notwithstanding that the report is now over six years old, it is still of some relevance to the Court because of what it says regarding the offender’s background. In this report, the offender denied any history of physical, emotional or sexual abuse, as a child or adult, that is, an express denial of being the victim of the childhood sexual abuse he now claims to have suffered.

61. In the Dr Bench report, the offender noted he had been suspended from school on multiple occasions for being on drugs and for fighting. He gave a consistent history to Ms Hare when it came to his drug use, stating that he had begun using cannabis, at the age of 14 and began daily drinking, at the age of 17. He was using LSD at 19. He did, however, deny any history of mental health issues but he did report having anxiety and depression, which appears to have been self-diagnosed. He reports engaging in self-harm, including cutting, because he was depressed and having several suicide attempts.

62. In contrast to the statements made to Ms Hare, the offender reported, to Dr Bench, that he had his first sexual experience at the age of 17. When asked why he had engaged in sexual activity, at a relatively late age, he noted “I was too busy doing drugs”.

63. In contrast, to the number of sexual partners quoted to Ms Hare, he told Dr Bench he had only had three. However, it is accepted that in the period of time after his release from custody in 2019 and before he was rearrested in December 2022, it is possible that the numbers had increased, although I do note it was a substantial increase.

64. The offender stated to Dr Bench that he prefers older women, as they are more experienced and know what they are doing. He likes being drunk or being high, when he has sex. When asked about his ideal sexual partner, he said “I don’t really have one, someone who likes sex, someone older than me, more experienced”. He denied any past history of paedophilic interests or fantasies. He became aware of pornography at the age of 14 through a magazine and discovered pornographic videos at around the age of 16. When asked for his preference of pornographic materials, he noted that he has no particular preference, simply “whatever comes up, I pick the first one off the page”. He said to Dr Bench that he was determined that he was, “not going to use drink or drugs” and was determined to remain abstinent from drugs and alcohol on a lifelong basis.   

65. As I noted earlier, this determination to remain abstinent from drugs lasted for six months after he was released from custody in 2019. He had reported to Dr Bench that he had every intention to obtain alcohol and drug rehabilitation. Dr Bench concluded that the most significant correlation between the offender’s background and its effect on his offending behaviour is the profound substance abuse and the intoxication he was experiencing, at the time of the offence.

66. Further, in relation to the offender’s mental health issues, Dr Bench concluded that he meets the criteria for polysubstance dependence. He also considers the offender as someone with a personality disorder, with antisocial and borderline traits and that his intoxication from alcohol, cannabis and unknown pills, would likely have been a significant contributing factor to his offending, in 2016 and that his risk of reoffending is closely linked to his willingness and ability to remain abstinent from drugs and alcohol.

67. The difference between the two reports on the issue of childhood sexual abuse, which the offender now claims to have experienced, is important because Ms Hare rests her conclusions about why the offender may have been involved in committing the offences before the Court on what appears to be a fairly uncritical acceptance of the truthfulness of the history given to her. Ms Hare was either not provided with, or did not apparently consider, certain material. For instance, Ms Hare was not provided with the Statement of Facts or sentencing remarks for the October 2016 offence, although she acknowledges its existence, in passing, in her report.

68. Importantly, Ms Hare mentions Dr Bench’s report but she does not mention the fact that the sexual history that the offender has given to her, was vastly different to the one set out in that report. She does not pass comment on the fact that in Dr Bench’s report there is no mention of the offender having experienced childhood sexual abuse or trauma, nor is there any attempt by Ms Hare to reconcile the two very different histories.

69. During the sentencing hearing I raised this discrepancy in the offender’s sexual history with Mr Bickford, who offered, by way of explanation, that his client was younger when he spoke to Dr Bench and no doubt embarrassed to raise the child sexual abuse allegations. While this is a neat response to the Court’s concern, it is a submission which lacks any evidentiary basis and is therefore rejected. Mr Bickford posed the rhetorical question to the Court, “Why would he lie about this?”. Mr Bickford then answered his own question by submitting that the childhood sexual abuse underpinned Ms Hare’s conclusions and that it should lead the Court to find a reduction in his moral culpability for these offences.

70. The version given to Ms Hare about the offender’s sexual abuse, its connection with his drug use and any link to sexual functioning is not based on sworn evidence and as his history was not given on oath and completely contradicts what he said to Dr Bench. I do not accept it.

71. Mr Bickford submitted that the letter from the lawyer, which was part of the exhibits before the Court on sentencing, indicated that the offender was pursuing a claim in relation to the childhood sexual abuse and that the fact that there was this letter was something which lent credibility to the offender’s claim of abuse. I do not accept that submission. That letter stated nothing more than that the offender was a client with a claim. It simply states the claim relates to “childhood sexual abuse by an adult male church member”. It is an allegation lacking any detail. The letter also does not state proceedings had been commenced, let alone that they had been finalised with a judgment in the offender’s favour. Anyone can make a claim but whether it has merit is an entirely different matter. I also note that there was no suggestion that this abuse allegation has ever been reported to police. The letter, in my view, provides no support to the allegation.

72. I do accept Ms Hare’s conclusion that the offender’s substance abuse and mental health issues will make his custodial experience more difficult, however, I do not find that it reduces the importance of specific or general deterrence. Based on the above, I believe the offender’s prospects for rehabilitation are poor and the likelihood of his reoffending is high. General deterrence and retribution, for these offences, are also matters of great significance in this matter. Ms Hare’s conclusions regarding the tests she has undertaken of the static risk factors and the stable risk factors are of significant concern to the Court and clearly make specific deterrence more important than it otherwise would be.

Childhood deprivation

73. Mr Bickford submitted that the offender’s social circumstances were such that they would give rise to issues of childhood deprivation and social disadvantage and it is well established that those matters can have an impact on someone’s life.

74. With the exception of the allegation of childhood sexual abuse, I am prepared to accept the history that the offender has given to both Dr Bench and Ms Hare with respect to the normalisation of illicit drug usage within his family and the impact that that no doubt had on his willingness to use drugs himself. He is clearly from a dysfunctional family and I will certainly take that into account, as part of the objective circumstances and to lower his moral culpability to some degree.

Victim Impact Statements

75. I will deal now very briefly with the Victim Impact Statements, which were read to the Court. One of the purposes for which a Court in imposing a sentence on an offender, is to recognise the harm done to the victim of the crime and to the community. In this instance, the victim’s mother read the three impacts statements to the Court, which were powerful and I have taken them into account, in accordance with the principles set out in s 30E of the Crimes (Sentencing and Procedure) Act.

Purposes of sentencing

76. In considering the appropriate sentence for the offender, I have had regard to the various purposes of sentencing identified in s 3A.

s. 3A:   The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

77. All of those matters are of great importance in this matter.

Sentence Commencement date

78. The offender has been in custody since 20 December 2022 and his sentence will be backdated to commence on that date.

Totality

79. These matters involve similar offences in terms of the three victims and the other two matters which are before the Court, are related, in some way. I note all of the offences were occurring around the same time. With respect to the three offences involving the victims IM, MM and SM, all were committed at the same place, at the same time and all in a very similar manner but critically, they involved three victims. I am going to impose an aggregate sentence, but I have taken totality into account, when it comes to setting the ultimate head sentence and non-parole period.

Special circumstances

80. With respect to special circumstances, it was submitted by Mr Bickford and I accept, that the offender will require a long period on parole, a longer period than would otherwise be provided by the statutory ratio, in order to ensure he receives appropriate counselling, in relation to his drug usage. I accept that submission. I also accept the submission that he requires ongoing monitoring, for a longer period than the statutory period would otherwise provide and, on that basis, I have found special circumstances and I will set the non-parole period at 65% of the head sentence.

Threshold

81. I have obviously turned my mind to s 5 of the Crimes (Sentencing and Procedure) Act and having considered all the possible alternatives, I am satisfied that no penalty, other than imprisonment, is appropriate. Counsel for the offender did not submit to the contrary. I am going to decline to impose the standard non-parole period for the offences where they apply because of the strong subjective case the offender has, with respect to his substance abuse issues, the issues of childhood deprivation and his plea of guilty and my comments about objective seriousness, for these particular offences.

Sentence

82. I am of the opinion that this is an appropriate matter for the Court to invoke s 53A of the Crimes (Sentencing and Procedure) Act and impose an aggregate sentence, in relation to all of the sequences. With respect to the indicative sentences, the sentences have received some rounding down. Each indicative sentence is reduced, to take into account the plea of guilty of 25%. I nominate the following indicative sentences.

1. For sequence 1, I indicate a term of imprisonment of 2 years and 10 months. This would have been 3 years and 10 months, but for the plea of guilty.

2. For sequence 2, I indicate a term of imprisonment of 3 years. It would have been 4 years before the discount. There is an indicative non-parole period for this matter of 23 months.

3. For sequence 13, I indicate a term of imprisonment of 3 years and 3 months, which would have been 3 years and 4 months, before the discount. This matter would have an indicative non-parole period of 2 years and 1 month.

4. For sequence 11, I indicate a term of imprisonment of 18 months.

5. For sequence 5, by way of s 166 of the Criminal Procedure Act, I would indicate a term of imprisonment of 8 months.

83. With respect to the orders I am going to make, with respect to the sentence, they are as follows:

1. The offender is convicted of each of the five offences before the Court;

2. I impose an aggregate sentence of 6 years and 10 months. Taking into account my finding of special circumstances, the non-parole period will be a ratio of 65%, meaning that the non-parole period will be 4 years and 5 months; and

3. The sentence will be backdated to commence on 20 December 2022 and expire on 19 October 2029, with a non-parole period expiring on 19 May 2027.

84. The first date you will be eligible for release to parole will be 19 May 2027. I am satisfied that the sentence imposed is the least period I could consider would be appropriate, for the offender in order to ensure he receives an appropriate sentence, taking into account the objectives of sentencing, the objective gravity of the offence and the matters personal to him. Whether you are released to parole is a matter for the Parole Authority. No doubt it will take into account how you conduct yourself whilst you are in custody in determining the appropriate release date.

**********

Decision last updated: 28 March 2024