R v Cadman

[2023] NSWDC 661

District Court

New South Wales

Medium Neutral Citation:

R v Cadman [2023] NSWDC 661

Hearing dates:

22 November 2023

Date of orders:

22 November 2023

Decision date:

22 November 2023

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Offender is convicted.

2. Offender is sentenced to an aggregate term of imprisonment of 4 years with a NPP of 2 years.

3. Two Form 1 offences taken into account.

Catchwords:

CRIME – sentence – 6 substantive offences – two Form 1 offences – victim BW – 14 years old – two offences contrary to s66DB(a) Crimes Act – sexually touch child between 10 and 16 – one offence contrary to s66C(3) Crimes Act – sexual intercourse with child between 10 and 16 – victim KD – 13 years old – two offences contrary to s66C(1) Crimes Act – sexual intercourse with child between 10 and 14 – victim TC – three offences contrary to s61KC(a) Crimes Act – sexually touch without consent

OFFENCES – offender 18 – offender met BW through Snapchat – aware of her age – commenced relationship – offending occurred in March and April 2022 – including uncharged acts – KD BW’s friend – also aware of her age – offending occurred in April – including uncharged acts – offender arrested and bail refused 29 April – granted Supreme Court bail on 8 September – victim TC disability support worker engaged to assist offender’s younger half-brother – offending occurred on 10 November whilst on bail

SUBJECTIVE CASE – living in supported accommodation – NDIS package – allocated NDIS worker – no prior criminal record – difficulty at school – smoked cannabis – binge drinking with peers – limited employment – problematic behaviour at home – autistic spectrum disorder with borderline intellectual functioning – deficit in social communication and interactions – reduces moral culpability – limited degree of insight and remorse – well above average risk of sexual reoffending

SENTENCE – less appropriate vehicle for general deterrence – rehabilitation – EAGP scheme – 25% discount – aggregate sentence

Legislation Cited:

Crimes Act 1900 (NSW): ss 53A, 61KC(a), 66C, 66DB(a)

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A

Cases Cited:

R v Gavel [2014] NSWCCA 56

Category:

Sentence

Parties:

Rex (Crown)
Archer Anderson Cadman (Offender)

Representation:

Counsel:
P Ye (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2022/00337780; 2022/00150920; 2022/00123884

Publication restriction:

There is to be no publication of any details that might identify or tend to identify the victims.

Judgment

1. The offender is before the Court at Taree for sentence following his pleas of guilty in the Local Court to six separate substantive sexual assault offences involving three victims and two additional offences to be taken into account on a Form 1, which are also sexual assault offences. I will refer to the victims by initials throughout this judgment. All offences are contrary to four separate Crimes Act 1900 (NSW).

2. In relation to the victim BW and case number H89578080, sequence 1 is an offence that between 25 March and 11 April 2022, at Smiths Lake, he intentionally sexually touched BW, who was at the time a child aged between 10 and 16, namely 14. That is an offence contrary to s 66DB(a) of the Crimes Act.

3. Sequence 3 of the same case number is an offence that between 1 April and 29 April 2022, at Smiths Lake, he had sexual intercourse with BW, who was aged between 10 and 16, namely 14. This is an offence contrary to s 66C(3) of the Crimes Act.

4. When sentencing for this matter, he asks that I take into account a further offence of sexually touching the same victim, namely sequence 4, that on 12 April 2022, at Smiths Lake, he intentionally touched BW, who was then aged 14. This is also contrary to s 66DB(a) of the Crimes Act.

5. In relation to the victim KD, the case number is H88706134. The substantive offence is sequence 2 and is an offence that between 1 April and 29 April 2022, at Smiths Lake, he had sexual intercourse with KD, who was then a child aged between 10 and 14, namely 13. This is an offence contrary to s 66C(1) of the Crimes Act.

6. He asks that when sentencing for this offence I take into account a further offence contrary to the same section, involving the same victim, namely sequence 4, which is an offence couched in identical terms.

7. In relation to the victim TC, case number H92462908, involving sequences 1, 2 and 3, all three offences are contrary to s 61KC(a) of the Crimes Act. All three charges are in almost identical terms, namely that on 10 November 2022, at Forster, the offender sexually touched TC without her consent. Sequence 1 occurred at 7.38am, sequence 2 at 7.35am and sequence 3 at 7.25am.

8. Offences contrary to s 66C(1) of the Crimes Act carry a maximum penalty of 16 years imprisonment with a standard non-parole period of 7 years. Offences contrary to s 66C(3) of the Crimes Act carry a maximum penalty of 10 years imprisonment. Offences contrary to s 66DB(a) of the Crimes Act carry a maximum penalty of 10 years imprisonment. Offences contrary to s 66KC(a) of the Crimes Act carry a maximum penalty of 5 years imprisonment. Offences contrary to s 61KC(a), are capable of being dealt with in the Local Court where the jurisdictional limit for each would be 2 years.

9. There are two sets of agreed facts before the Court, one for the offences involving the child sexual assault matters and the other for the offences involving KC.

10. Dealing with the offences involving BW and KD first, I accept from the facts that the offender was 18 at the time of the offending and lived in Forster in supported care. BW was 14 at the time of the offending and lived with her family at Smiths Lake. KD was 13 at the time and also lived in Smiths Lake, not far from BW.

11. BW met the offender through friends on Snapchat at the end of March 2022. He became aware of her age through that initial contact. They agreed to meet at the local shopping centre. They were having lunch there when the offender asked her, according to the facts, if he could "fuck her and stuff". This made her uncomfortable and she asked him to stop asking that and that there was not going to be any sexual activity because of her age.

12. He then placed his hand on her thigh, over her pants and said, "I'm going to fuck you one day and, if I do, I'm going to fuck you really hard." He tried to move his hand closer to her genital region and put it in her pants. She told him to move and he then reached out and tried to touch her breasts. He touched one of her breasts on the outside of her clothing. She slapped him on the arm, he asked why she did it and she told him she did not feel comfortable with him doing that and told him to stop.

13. The combination of these acts constitutes the sexual touching the subject of the first count.

14. The offender and BW apparently then stayed in the park for about one to two hours but then started walking back to the shops. He asked her why she would not let him have sexual contact with her and she said, "Because I'm 14." They went to their respective homes but continued to have contact on social media, during which the offender told her that he was 18 and they talked about her school and some more topics. After this initial contact, the offender and BW met every second weekend and she described him as her boyfriend. They met every second day during the school holidays that were about to occur in April.

15. On 11 April 2022, about two weeks after the first incident, the offender and BW spent the day at Smiths Lake and at the victim's home. It started to get late into the evening and BW's mother asked the offender when he was leaving. He told her that he did not have a lift and no one could get him. She agreed that he could stay overnight, on the condition that he slept on the lounge. He agreed with that.

16. People in the house were watching television in the evening and at about 11.00pm to 11.30pm, BW went to bed. Her mother stayed awake, sitting on the lounge with the offender, waiting for him to go to sleep. She was still there until about 3.00am. She heard him snoring and so went to bed but left her door open. After about 15 minutes, she fell asleep.

17. Around that point the offender got up from the lounge and walked into BW's bedroom and got into bed, laying next to her in what is described as a spooning position. She was asleep. He touched her genital region with his hand. She was wearing shorts and underwear. Shortly afterwards, BW's mother went into the room and saw the offender in bed with her daughter, who was still asleep and saw him laying behind her with his arm around her chest or stomach area and with a blanket pulled up above his waist. She yelled at him, asking him what he was doing in her daughter's bed and told him, according to the facts, "Get the fuck out", to which the offender replied that he needed to go to the toilet. BW then woke up and asked her mother what was going on. She was not aware of any of the sexual touching that had occurred while she was asleep. The offender got up, went to the toilet and then went back to the lounge. BW's mother stayed awake in the lounge room for the remainder of the night.

18. The touching of her on her genital area, outside of her clothing, whilst he was lying behind her with his arm over her and touching her stomach, are the circumstances amounting to the sexual touching relevant for this charge.

19. There are some other matters then referred to in paras 14 and 15 of the agreed facts in relation to some observations made by the victim that night and the following morning, which I do not take into account because to do so would amount to an error of law, offending against the De Simoni principle.

20. These facts are the relevant facts for the Form 1 offence to be taken into account when sentencing for sequence 3.

21. The agreed facts for sequence 3 are that a few weeks after they first met and so some time after the offence in BW's bedroom, the offender and BW were swimming at the lake. They got out of the water and sat down at the tables next to the lake. She was wearing a bikini top and bottom. The offender reached over and tried to move her bikini bottoms aside and slid his hand underneath them. He tried to do this for a few minutes. His finger penetrated what is described in the facts as "her vagina" for a brief time and, in fact, described by BW as "like a second".

22. She pushed his hand away and said, "Don't ever fucking do that again" and similar words. He did not say anything in reply. They are the facts for the offence of sexual intercourse with a child aged between 14 and 16.

23. The agreed facts indicate that there were other occasions on which the offender had some sexual contact with BW during this period but which are not the subject of any specific charges. They are referred to in the facts as "occasions 4 and 5" and are uncharged acts.

24. These occasions included an occasion in which they were at the lake, and he put his hand down her pants and touched her genital region and also in the area of her breasts. She told him to leave and that she did not want him to do this. On other occasions, the offender would grab her hand and try to put her hand down his pants, on one occasion succeeding in placing her hand on his penis.

25. On all occasions, she moved her hand away and for all of these uncharged incidences of sexual contact, BW said that she did not want him to do that. The facts say that every time BW "snapped at him" and told him to stop and not to act in the way, he would say to her, "Don't tell anyone about this."

26. These occasions, which are not the subject of charges, are relevant only to place the charged offences into a proper context, in particular to avoid any suggestion that the two substantive offences and the Form 1 offences could be treated as isolated events.

27. On 22 April 2022, BW disclosed the offences to her mother, who then called the police. She made a formal statement to police about these offences by way of a formal interview on 29 April 2022. They are the relevant facts for BW.

28. Also from the facts, I accept that BW and KD were friends. On an occasion during the same school holidays in April 2022, KD went out with BW behind the shops at Smiths Lake and they all drank vodka cruisers and smoked. KD saw the offender kiss BW. They all then walked to a coffee shop near the lake, during which the offender continued to kiss BW. They started listening to music and BW and KD started dancing. The offender told them that this was making him become sexually aroused. They finished their drinks and went to the shops to buy more and did so. KD had drunk about four to five vodka cruisers by that stage. She was 13 at the time.

29. While they were at the lake, the offender asked BW if she would consent or agree to him kissing KD. According to the facts, KD was ambivalent about whether or not this would occur because she had a boyfriend, albeit that she was 13, but he had not paid much attention to her and she was pleased to be getting attention from the offender. BW said she did not care if he did so. The offender kissed KD and touched her bottom and breast with his hands, under her clothes. He told her that she was hot and asked her to engage in oral sex with her. She did not agree to that.

30. KD's older sister walked to the lake, noted that KD was drunk and got angry. She told the offender that KD was only 13, to which he replied, "Yeah and she said it's all good." Her sister continued to be angry with him. The group then walked back to the shop and the offender and KD started kissing each other, behind the bins at the back of the shop whilst he was apparently lying on top of her. BW was on the phone and was crying, apparently upset that the offender was kissing her friend.

31. None of this interaction between the offender and KD is the subject of any charge and is tendered only as context evidence in the same way that similar evidence was tendered for the victim BW.

32. Night then fell and KD's sister went home to get a jumper and left the others at the Lake. The offender pushed KD to the ground, in a playful way and lay on top of her. He said, "I'm going to fuck you now" and began to kiss her on the lips. He placed his hand underneath her clothing and put his fingers inside her vagina for less than a minute. That would appear to be the factual basis for sequence 2, the charge of sexual intercourse with a child between 10 and 14.

33. KD's sister then returned to the group and told her that she was wanted at home by their mother. Both KD and her sister then went home. Apparently, KD told her boyfriend that she had kissed the offender and, apparently, her sister told their father what she had seen at the Lake, but it would appear that nothing was done by any adult to talk to the offender or take action to prevent what was happening.

34. Later that night, around midnight, BW and KD organised to meet the offender and one of his friends at the lake. BW tried to sneak out, but her mother was still awake and she could not get out of the house. I cannot help but note that there was at least one adult taking some action to protect one of these girls.

35. KD snuck out and met the offender at the Smiths Lake shops and they walked to the lake. He touched her bottom during that walk and they were holding hands. There are no charges arising from those facts. She told him that she was 13, which in any event, as I understand it, he already knew.

36. When they arrived at the lake they started to kiss. KD sat on his lap and he put his hand through her shorts and on her undies and rubbed his fingers on her genital region, I accept initially on the outside of her underwear. He then put his fingers insider her vagina multiple times and told her, according to the facts, that he wanted to fuck her. His friend, a male friend, was standing close by and watching as this was occurring.

37. According to the facts, KD noticed that she was still really drunk at that time. It is almost unbelievable that no adult in her house apparently noticed this when she returned with her sister, but that would appear to be the state of the evidence.

38. This act of sexual intercourse is the subject matter of sequence 4, the Form 1 offence, to take into account when sentencing for sequence 2 involving KD.

39. The offender's friend then went into the bush, leaving the offender and KD alone. He placed his hand down his pants and pulled his penis out and exposed it to her. He said to her, "Meet up tomorrow night as well, we'll fuck." According to the facts, from this point on, her memory is a blur and she next remembers walking home with the offender and his friend.

40. As previously stated, BW disclosed the sexual assault on her to her mother on 22 April 2022 and made a statement to police on 29 April.

41. (Is the offender still there? You need to sit up, I cannot see you. Thank you. Stay there, please, with your head back because I cannot see you otherwise and I do not know whether you are in court.)

42. The offender was arrested by police on 29 April 2022 and engaged in a record of interview. He told police he loved BW, he knew her age, he understood that the age of consent was 16 and that all they had done was kiss and cuddle and that he touched her breasts once in a while. He was charged with the offences involving BW and refused bail.

43. On 23 May 2022, KD apparently went to the police station and engaged in an interview with police and disclosed the offending against her. On 25 May 2022, the offender was charged with the offences involving KD but did not engage in a record of interview.

44. The offender would appear to have remained in custody bail refused from 29 April 2022 until he was granted bail by the Supreme Court, on 8 September 2022.

45. Before being charged with these offences, the offender was living in supported accommodation in Forster with the benefit of an NDIS package and apparently having an allocated NDIS worker. He committed these two offences against these two girls apparently whilst living in that accommodation.

46. He remained on this bail from 8 September until 10 November 2022, when he committed the offences against TC. The relevant facts for her are that she was, at the time, a 37 year old woman who was present in the house where he was then living with his mother and two half-brothers, presumably as a bail condition. She was a disability support worker engaged to assist his younger half-brother to get ready for school.

47. She arrived at the house at 7.20am on Thursday, 10 November 2022. She walked to the brother's bedroom, to wake him up. The offender stood in the doorway and spoke to her. She was bending at the waist, with her back to the offender when he approached her from behind and put his hand on the right side of her buttocks, before sliding his hand between her legs, covering her vulval area over her clothing.

48. She immediately turned around and remonstrated with him, saying, "What the hell are you doing?" She moved and positioned herself with a fan in between her and the offender. He left and she continued her duties. That is the first offence in time, which appears to be sequence 3.

49. She then went downstairs to get breakfast for his brother. She was standing and writing in a school book when the offender came back into the kitchen. He walked up behind her and pressed the front of his body against her back. He slid his left hand along the left side of her ribs and then down towards the front of her ribs and moved his hand up to cup her left breast over her jacket. He then put his right hand on her buttocks before sliding it in between her legs, with his hand covering her vulval area over her clothing. She pushed her body backwards, which released his grip. She said to him, "Archer, this is not okay. It's not appropriate to touch anyone like that."

50. He asked "Why not?" She replied, "I'm married with kids, and I am a lot older but it is still inappropriate." She then walked to the dining table and sat on a chair to avoid being touched. I understand that these are the relevant facts for the second offence in time, which is probably sequence 2.

1. The offender then walked towards her and said, "Well, you're not wearing a ring." He placed one of his hands over her left breast and she batted his arm away. He then moved his arm in a downward motion, which brushed against her chest. Her jacket was zipped up to the middle of her chest. He reached in between her breasts and pulled the zipper down. She pushed his hand away and he then used his other hand and slid it in between her jacket and shirt and cupped her right breast. She said, "No" and pushed the chair back and stood up. She walked upstairs to the brother's room and stayed there for a while. She then returned to the kitchen and finished her duties.

2. She left and reported the three assaults to another employee from her company. About 10.30am that morning she went to Forster Police Station, reported the offences and gave them a statement. About 2.30pm that afternoon police apprehended the offender in a coffee shop at Forster, in the presence of his support worker.

3. He was conveyed to the police station and charged with these matters. He did not engage in an interview. He was refused bail and has remained in custody bail refused ever since, therefore from 10 November 2022.

4. I turn to assess the objective seriousness of the offending. In general terms, there can be no doubt that all sexual offending is serious and, in particular, all sexual offending involving children. The legislature recognises the age of consent of 16 for good reason, namely that children below that age are vulnerable and immature. It is the experience of the Courts, as stated in R v Gavel [2014] NSWCCA 56, that child sex offences usually have a profound and deleterious effect on victims for many years, sometimes for the whole of their lives.

5. I also, with respect, note the dicta of that case, that the reason for a 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.

6. Those principles clearly apply to the offences involving BW and KD. Neither of these young girls were lawfully able to consent and BW continued to make that clear to the offender, but he went ahead and did what he did anyway.

7. For the Form 1 offence, she was asleep in her own bed and in her own house when he sexually touched her, which makes that a somewhat more serious example of this offence. Of course it is however, a Form 1 offence, not a substantive offence for sentence.

8. For the offences involving the adult victim, they too are serious offences, not just because they are offences which involve the offender's sexually touching the victim without her consent, knowing full well that she was not consenting and would not have been consenting, but further they were committed against a person who was there to provide care for his younger half-brother. She was just there doing her job when he sexually assaulted her in the way that he did.

9. All offences of sexual assault require appropriate punishment to recognise the seriousness of the offending and the likely ongoing psychological sequelae on the victims of them.

10. Objectively however, each of these offences is more or less serious. The first offence re BW, touching her on her thigh over her pants and on her breast over her clothing, is informed by a number of factors, including that the touching was over her clothing and was for a very brief period. Her age of 14 is right in the middle of the relevant age range 10 to 16, so her age neither elevates nor diminishes the objective seriousness.

11. The offender was 18 at the time. That is not even a great age difference, between 14 and 18, but for reasons that I will soon address, the offender's mental age I accept was in fact much less and much closer in age to the victim and that is a relevant factor in terms of assessing objective seriousness.

12. There were no threats made and the victim, apparently, felt comfortable enough to stay in his presence for about one to two hours and thereafter regarded him as her boyfriend, even though she never agreed to any ongoing sexual conduct between them.

13. For offences capable of being charged under this section, in my view it is towards the bottom of the range. I accept the defence submission that it is towards the lower end of the range of objective seriousness and reject the Crown's submission that it is within the low mid-range of objective seriousness. There is nothing in the way in which this offence was committed that pushes it above the low range.

14. The objective seriousness of the sexual intercourse offence involving BW is also, on my finding, toward the lower end of the range of offences capable of being charged under that section and I reject the Crown's submission that it is within the mid-range.

15. A number of factors inform the objective seriousness of that offence. The same considerations arise in relation to differences in age. Further, it was apparently daytime, at which point the victim and offender were together, swimming at the lake, apparently voluntarily on the part of the victim.

16. The form of sexual intercourse involved the offender trying to move her bikini bottoms aside to slide his hand underneath them, doing this for a few minutes and, in the course of doing that, penetrating what is said in the facts to be her vagina, for about a second, until she pushed him away. It is far from clear whether this is meant to be her vagina or her vulval area, both of which would in any event amount to sexual intercourse.

17. In any event, it was for a very short period of time, there is no evidence of force or violence, or threats of violence. Further, the victim was sufficiently aware and confident to be able to tell him to stop in no uncertain terms. There is nothing in the way in which this offence was committed to put it into the mid-range in terms of objective seriousness for offences capable of being charged under this section.

18. One of the factors that needs to be considered is the range of physical acts that are capable of constituting sexual intercourse. This is not one of the more serious in the way it was committed.

19. The relevant sentence however, should be increased to some extent, to take into account the Form 1 offence, sequence 4. That involved him, in the early hours of the morning, whilst in her home, getting into her bed, lying behind her in a spooning position, with his arm around her, resting on her stomach while she was asleep and, in these circumstances, touching her on the genital region with his hand over her clothing.

20. Her mother came in and interrupted and he was sent out. BW did not know what was happening because she was asleep. The contents of para 15 and some of para 14 of the agreed facts should not be before the Court and, as I have said, I disregard them.

21. For all offences regarding BW, I have received and taken into account the victim impact statement written by her. I accept that she has suffered as a result of this offending in the ways set out in that statement. She says that she blames herself for what happened. She should be discouraged from holding these views. The only person to blame for these offences is the offender himself. She apparently is getting support from a counsellor and it is to be hoped that in due course, she will regard herself as a survivor of sexual abuse, not a victim. There is nothing in the statement or otherwise in the evidence which would elevate the impact on her to a circumstance of aggravation.

22. The offence which is sequence 4 is to be taken into account in a meaningful way when sentencing for sequence 3. The only way to do that is to sentence for a slightly higher period of time for sequence 3, to take into account the objective seriousness of that Form 1 offence.

23. For the offence involving KD, both the substantive offence and the Form 1 offence, the objective seriousness is also informed by the age difference between the victim and the offender, namely she was 13 and he was 18. But again, I take into account the fact of his mental condition and his actual mental age, for reasons I will come to in due course, being less than his actual age of 18, which is a relevant consideration in determining the effect of the age difference on the objective seriousness of the offending.

24. She was 13, which is towards the top of the range for offences capable of being charged under this section, where the age range is between 10 and 14. The victim of the offences was drunk at the time and the offender knew that she was drunk, or should ought to have known that she was drunk, because they had all been drinking together for some time. But there is no evidence that she became drunk in circumstances where he ploughed her with alcohol or supplied her with alcohol to make it more likely that he could engage in sexual behaviour with her. The evidence would appear to be that she engaged voluntarily in this drinking.

25. The Crown submission is that the substantive offence, sequence 2, is within the higher mid-range of objective seriousness. I do not accept that submission. It is below the mid-range of objective seriousness. The following factors are relevant:

1. The age difference is greater but, as I have already said, his mental condition means that his actual mental age impacts on that finding. I accept that in reality, he was much closer in age to KD than it might appear.

2. Whilst it is not a matter of mitigation, nonetheless the facts make it clear that KD was willing to engage in some contact with the offender, to the extent of kissing him and did so voluntarily. Of course, she was drunk by then but there is no evidence that any force or even persuasion was used by the offender to allow the offence to occur.

3. The actual sexual intercourse relevant for the substantive offence and, for that matter, the Form 1 offence as well, was digital penetration of her vagina for less than a minute, when they were on the ground, in circumstances where the facts say he pushed her to the ground in a playful way.

4. Again, whilst it is not a matter of mitigation, after this offence, sequence 2 occurred and after KD had gone home, she again snuck out to meet the offender and his mate late at night, after midnight, at the Lake, which is where the sexual intercourse offence occurred, the Form 1 offence.

76. Arguably, the Form 1 offence is objectively more serious than the substantive offence but nonetheless, it is before the Court as a Form 1 offence, to be taken into account in a meaningful way. In the case of both of these offences, sexual intercourse was digital penetration, and it was for a short period of time in each case. There were no threats or actual violence used.

77. In terms of assessing objective criminality but not acting as a circumstance of mitigation, I accept KD voluntarily met with the offender, especially so for the Form 1 offence, when she did so well after midnight, which indicates at the very least that she had no fear of him.

78. She was not, for either offence on my finding, a vulnerable victim. She was drunk but that had been a process in which she engaged voluntarily throughout the day. She voluntarily went to meet him after midnight at the lake and she voluntarily kissed him. There is no evidence that puts her into the category of vulnerable victim, except that she was 13, which of course, is an element of the offence and cannot be used to aggravate the offending.

79. She has also prepared a victim impact statement which I have received and taken into account. She too suffers, I accept, some psychological sequelae as a result of this offending. Some of the comments made in that victim impact statement would appear to be somewhat exaggerated, at least an exaggeration of the facts that are before me on this sentence. I do accept, however, that she has suffered as a result and again it is to be hoped that she will take advantage of counselling or similar resources that hopefully will be made available to her and will be able to regard herself soon as a survivor of sexual assault, not a victim. She is still very young and hopefully, has a good life ahead of her.

80. The standard non-parole period does not apply strictly here to the substantive offence because this is a plea of guilty and also because of my finding that it is below the mid-range in terms of objective seriousness.

81. In relation to the other three offences, I accept that they are of relatively low objective seriousness, albeit no doubt, the victim of them does not regard them in that way and I accept, even in the absence of a victim impact statement, she no doubt continues to have some psychological impact from being victimised in this way. They are offences capable of being dealt with in the Local Court, where the jurisdictional limit would be 2 years.

82. The objective seriousness is informed by a number of factors, including the fact that each of them lasted for a very short period and each of them involved touching over her clothing. I do not accept that she was a vulnerable victim in the way that is intended to be applied pursuant to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

83. The objective criminality is aggravated by the fact that she was there in the house where the offender was living and providing care for his brother, just doing her job. Each of the offences is of a slightly different objective seriousness, the most serious being the last in time, not just because it was a continuation and the last in time, but because the offender persisted with the touching, even though he knew she was not consenting, including attempting to pull down her zipper and the like.

84. In the case of each of the offences, his offending is rendered somewhat more serious because he was on Supreme Court bail at the time for the offences involving BW and KD.

85. These are however, offences of sexual touching, which are offences which cover a very broad range of offending behaviour. They are nowhere near the top of the range for offences of this type or even towards the top of the mid-range. Both of the first two are towards the bottom of the range, on my finding and the third in time is a little higher.

86. The threshold is met for imprisonment. I note that, even for sentences in this Court for these offences, the majority of sentences as recorded by the Judicial Commission in their statistics, were terms of imprisonment are to be served by way of intensive corrections order. That is not appropriate here, but I indicate that the range of sentences is very broad, and the majority of sentences are not ordered to be served by way of fulltime imprisonment, even when sentenced in this Court.

87. I then turn to the subjective circumstances involving the offender, which is where the task of setting appropriate sentences here becomes extremely difficult. He is now 20 and was 18 at the time he committed the offences. He pleaded guilty at the first available opportunity and is entitled to a 25 per cent discount to recognise the utilitarian value of those pleas.

88. He comes to Court as a person with no prior criminal record and is entitled to have that taken into account. It is somewhat doubtful whether it is appropriate to regard him as a person of good character, given the number of offences and the period over which they were committed. He is however, entitled to have the fact that he comes to Court as a person with no prior criminal record into account in his favour.

89. There are a number of reports, both current and a couple of years old and a letter from the offender and from his mother, all before the Court. In my view, the most useful of the reports before the Court is that from Mr Patrick Sheehan, psychologist, dated 4 October 2023. He has reviewed a large number of earlier reports about the offender, from early days onwards. There are also reports from his NDIS provider at the time, an occupational therapy report and an earlier psychological report.

90. I accept from this combination of reports and letters that he is a person of the age stated, namely now 20 and was 18 at the time of offending. He is therefore a young person with no prior convictions, for whom this is his first time in custody. His youth is a relevant factor on sentence, with the issue of rehabilitation to be given more weight than for an older person.

91. He was born and raised in Singleton and Forster. His parents separated when he was four. He has only met his father once since then, apparently in 2022. His mother has re-partnered on three occasions and one of his step-fathers was a heavy drinker who was violent towards him. He has a good relationship, apparently, with his mother's current partner.

92. His mother would appear to have had some problems of her own and the offender was present when she overdosed and required an ambulance and hospitalisation on an earlier occasion.

93. He has had very limited employment because of his mental health problems and all of his previous jobs have been arranged for him by family or support workers. When he was on bail for these offences, between August and November 2022, he worked at a local café, in a job organised for him by his support workers, which he enjoyed and they apparently reported positively about him. Since going into custody, he has worked five days a week, making headphone packs for Qantas, which is repetitive work and apparently suits him well.

94. The major issue, both involving him generally and also in relation to this offending, is his mental health history and diagnosis. He has a long history of problematic behaviour at home. He would run away and hide for days at a time. He was originally treated by a paediatrician who diagnosed him as suffering from ADHD and other conduct disorders. He was treated with various medications, including anti-psychotic medication in 2014. He stopped taking medication when he turned 18 and is not currently receiving any medication.

95. He did not do well at school because of these issues and he was apparently also bullied at school. He smoked cannabis between the ages of 15 and 17 but it would appear that that is no longer the case. He engaged in binge drinking with peers from the age of 16 and it would appear that at least the offences against KD were committed in that situation.

96. After reviewing all of the reports and earlier assessments of the offender and following his own interview and observations, Mr Sheehan offers the opinion, which I accept, that the offender suffers from Autistic spectrum disorder with borderline intellectual functioning. He has a history of persistent deficits in social communication and social interaction across settings. He struggles to understand the rules of social and emotional reciprocity and struggles to navigate situations appropriately. These problems, according to Mr Sheehan, have become increasingly evident through his development as his social adjustment is further behind same aged peers.

97. His understanding of the world is limited to his own experience and impressions, failing to recognise or accommodate the experience of others and being bewildered, anxious and intensely distressed or angered when other people or the world do not conform to his views. He has rigid thinking patterns and inflexible behaviours.

98. I also accept from Mr Sheehan's opinion at para 23 that when speaking about this offending and in particular, the offending against BW and KD, he referred to the victims as peers and was unable to show any appreciation of the developmental differences between girls aged 13 and 14 and a young adult aged 18. I accept Mr Sheehan's opinion as follows:

"In my view, this could be accounted for by his own low level of social and intellectual sophistication that would make him more emotionally congruent with young persons relative to the same aged peers."

99. I accept that during this portion of the interview with Mr Sheehan the offender did go on to express at least some perhaps limited but, nonetheless, a degree of insight and remorse into the impact of his offending on the two young girls, by recognising that they were too young and that engaging in this behaviour could traumatise them and make them commit suicide.

99. I also accept Mr Sheehan's opinion at para 27 of his report, that the evidence is that the offender has shown a capacity for "sexual disinhibition, acting on sexual impulse without regard to context or consequences". He expressed the view that he did not believe that the evidence supported the view that his actions were underpinned by deviance or paedophilia but a lack of discrimination and boundaries and possible sexual preoccupation. His opinion was that his offending cannot be accounted for by his Autism spectrum disorder and borderline intellectual functioning but that these are features that have influenced his offending, by undermining his appraisal, reducing his capacity for recognising social prompts or empathise with others and creating emotional identification with younger people.

100. He goes on to say that it could be argued that this does reduce his moral culpability relative to a neuro-typical offender. I do, in fact, accept that the features of his Autistic spectrum disorder and borderline intellectual functioning do in fact, reduce his moral culpability in the way opined by Mr Sheehan.

101. The fact of these mental health conditions also render him a less appropriate vehicle for general deterrence. There must, of course, be an element of general deterrence reflected in the sentences, to send a clear message to the community that all sexual assault offences or all sexual offending is to be treated seriously and particularly so offences involving children, where the legislature has, by removing the ability to serve any sentences by way of an intensive corrections order, attempted to make it clear to the community that most offences, involving sexual offending against children, will give rise to a term of imprisonment to be served fulltime.

102. I have said that the offender's mental conditions do, to an extent, reduce his moral culpability, albeit that this is something of a double edged sword for this offender, because the same mental condition which reduces his moral culpability also means that he only has limited insight into his offending, which impacts on an assessment of his prospects of rehabilitation.

103. Mr Sheehan assessed him as well above average risk of sexual reoffending, using the Static-99R assessment tool, albeit largely because of his repeat offending whilst on bail. There are however, some dynamic risk factors, including his social emotional deficits as a result of his Autistic spectrum disorder, his impulsivity and probable sexual boundaries and possible sexual preoccupation.

104. I accept Mr Sheehan's opinion that he may benefit, whilst he remains in custody, from referral to the self-regulation program sexual offenders, which is conducted at the Metropolitan Special Programs Centre. I also accept Mr Sheehan's opinion that a key aspect of his risk management, once he is released from custody, will be the assistance and support around him on his release to the community.

105. The plan at that stage, that is at the time of release to the community, include his re-engagement with the NDIS package, which was currently the case. Appropriate accommodation will be found for him via that package. It is to be hoped that those providing that accommodation, with the benefit of that government funded package, will do a somewhat more thorough job of supervision than they did at the time the offences against BW and KD occurred, when he was in fact in accommodation, supported with funding through that system. It was whilst in that situation and in that supported accommodation that he was able to be out of that accommodation, in the early hours of the morning and during the day, drinking excessively and committing the offences against both BW and KD, apparently without anyone in his supported living accommodation noticing. This is despite the fact, as is clear from the tendered documents, that he was then the beneficiary of a NDIS package valued at just under $190,000. As I have said, it is to be hoped that those providing the accommodation with the benefit of this government money do a better job next time, when he is released to the community.

106. Mr Sheehan offers the suggestion of a minimum standard of supported living care for the offender, which hopefully will be followed. If it were just the provision of NDIS funded benefits, that would largely mean the offender's observance of any conditions would be largely voluntary and the Court, as does Mr Sheehan, would have some concern about whether or not he would be likely to follow those conditions for treatment and ongoing supervision. However, when he is next released to the community, he will not just be engaging with NDIS funded supporters on a voluntary basis. He will be released to parole and those conditions will presumably be conditions of his parole. There will, thus, be a degree of coercion that was not present on the last occasion and which Mr Sheehan is of the opinion is essential for his ongoing rehabilitation. I accept that opinion.

107. He continues to have the support of his mother, which he values highly. I do note, however, that both that support, and the NDIS funded support were present when he committed all of the offences before me.

108. I also accept however, that for everyone involved in supporting this offender, his arrest for these offences and the fact that he has spent now so long in custody has amounted to a significant wake up call. Those providing him with care and those adults around him are now much more aware of the serious consequences if he again engages in the unregulated behaviour that he did which gives rise to the offences before me.

109. He too, I accept, now has a somewhat better understanding of his circumstances and the consequences of his actions, particularly as he has, as a relatively young man and for the first time, found himself in adult custody. He has dictated and had a letter written to the Court and he expresses some degree of remorse, which I accept is genuine, albeit that there are limitations to his ability to do so.

110. It is also the case that perhaps some of these expressions of remorse need to be taken together with something of a grain of salt, given the comments that he also made to Mr Sheehan. But even that, I accept, becomes a complicated assessment because some of the comments are as a result of his mental conditions, which means he simply lacks the ability to comprehend fully the gravity of his situation and he is making comments from the perspective of a person with a mental age much younger than that of a 20 year old.

111. For all of these reasons, he will need a longer than normal period of supervision in the community to deal with all of these issues, so that his rehabilitation is as good as it can be.

112. His prospects of rehabilitation are guarded, at best. But he will ultimately be released from custody and his prospects will be best addressed if he has close supervision connected to specific parole conditions, to put in place the sorts of surrounding supervision and treatment suggested by Mr Sheehan.

113. According to the letter originally before the Court from Mr Sethi, support co-ordinator, the following services have been lined up for when he is released from custody. They include behaviour support practitioners, support for independent living which will be under NDIS guidelines, an occupational therapist and a psychologist. All of these supports will assist with his rehabilitation.

114. So, this is a difficult sentencing exercise. The offences of themselves are serious offences because they are sexual assault offences. The maximum penalties for them must be taken into account. But the offender of course, is a person who comes to Court with these difficult and complex mental health issues and as I have found, the majority, if not all, of the offences are far from being most serious examples of offences capable of being charged under the relevant sections.

115. So, with all of this in mind, I have come to the determination of the appropriate sentences.

116. For all of the offences, the s 5 threshold is crossed, taking into account all of the necessary matters relevant pursuant to s 3A of the Crimes (Sentencing Procedure) Act.

117. For the offences involving BW, sequence 1, the starting point is 12 months, less 25 per cent, giving rise to 9 months.

118. For sequence 3, taking into account the Form 1 offence, sequence 4, the starting point should be 2 years, less 25 per cent, being 18 months.

119. In my view, sequences 1 and 3 should be partially accumulated with each other. If entirely accumulated on each other, that would be 2 years and 3 months. That is a little too high to represent totality. The overall sentence for this group of offences involving BW should be a period of imprisonment of 2 years.

120. As will become clear, I will be imposing an aggregate sentence, pursuant to s 53A of the Crimes (Sentencing Procedure) Act, but albeit that the indicative sentences are for separate offences, I make the comments I do about partial accumulation of sequences 1 and 3, so that it is clear that, had I been sentencing them separately, I would have sentenced to a total period of imprisonment for both of them of 2 years.

121. All of the sentences should be backdated to take into account pre-sentence custody. That would involve backdating the sentence to commence 4 months and 11 days before he last came into custody on 10 November 2022 and so I will commence the sentences on 29 June 2022.

122. For sequence 2, in relation to the victim KD, taking into account the Form 1 offence, I have concluded that a starting point of 4 years is appropriate, reduced to 3 years after reducing the sentence by the 25 per cent discount to recognise the early plea of guilty. The indicative sentence for that will be 3 years and because this is a standard non-parole period offence, I also have to indicate the non-parole period, which I indicate is 18 months.

123. I have taken the Form 1 into account when indicating the sentence for sequence 3 for BW and for sequence 2 for KD.

124. For each of the offences for the victim TC, it seems to me that the first two in time, which I believe to be sequences 3 and 2, taking into account the discount for the plea of guilty, each of them should be a fixed term of 6 months.

125. For the third in time, which I believe to be sequence 1, the sentence should be 12 months, taking into account the discount for a plea of guilty.

126. Each of them is largely the same offence and so each of them should be regarded as to be served concurrently with the other. So, for those three offences, there would be a period of imprisonment of 12 months.

127. So, using that rationale and counting, that would ultimately give rise, if each of the other groups of offences or separate offences was accumulated on the other, an overall term of imprisonment of 6 years.

128. In my view, totality should give rise to an overall term of imprisonment of 4 years with an overall non-parole period of 2 years. I propose to deal with that by way of an aggregate sentence for that length of time.

129. There are special circumstances, as follows:

1. It is his first time in custody;

2. His youth; and

3. His mental condition, meaning that he will suffer a somewhat harsher custodial sentence than others might and I accept Mr Sheehan's opinion in relation to that.

131. The sentence will be backdated to commence on 29 June 2022.

132. For those reasons then I make the following formal orders:

133. The offender is sentenced to an aggregate sentence of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act of 4 years, commencing on 29 June 2022 and expiring 28 June 2026, with a non-parole period of 2 years, commencing 29 June 2022 and expiring 28 June 2024, with parole thereafter of 2 years, commencing 29 June 2024 and expiring 28 June 2026.

134. The indicative sentences are as follows:

1. Sequence 1, 9 months.

2. Sequence 3, 18 months with a Form 1 taken into account.

3. Sequence 3, 3 years with an indicative non-parole of 18 months, with the Form 1 taken into account.

135. For the H number involving TC, indicative sentences are as follows:

1. Sequence 1, 12 months

2. Sequences 2 and 3, 6 months.

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Decision last updated: 20 December 2024