R v CF

[2019] NSWDC 903

District Court

New South Wales

Medium Neutral Citation:	R v CF [2019] NSWDC 903
Hearing dates:	20 June 2019, 26 July 2019, 29 July 2019 and 20 September 2019;
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 10 years; non-parole period 7 years 6 months
Catchwords:	CRIME – sentence – sexual intercourse with person above age 14 years and under 16 years – indecent assault of a person under the age of 16 years – failure to comply with reporting conditions contrary to Child Protection (Offenders Registration) Act 2000 – lengthy criminal history for like offences – resents treatment and restrictions placed upon him – multiple health issues – deterioration in cognitive function -
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Crimes Act 1900 Crimes (High Risk Offenders) Act Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney‑General’s Application (No 1) (2002) 56 NSWLR 147, Pearce v R (1998) 194 CLR 610, R v ABS [2005] NSWCCA 255 R v Archer [2017] NSWCCA 155 R v Chong [2012] NSWSC 1309 R v De La Rosa [2010] NSWCCA 194 R v Hammoud (2000) 118 A Crim R 66 R v Holder [1983] 3 NSWLR 245 R v Jomaa [2019] NSWCCA 98 R v Mill v R (1988) 166 CLR 59 R v Porter [2008] NSWCCA 145 R v XX (2009) 195 A Crim R 38 Thomson and Houlton v R [2000] NSWCCA 309
Category:	Sentence
Parties:	Regina (Crown) CF (offender)
Representation:	Counsel: Ms McSpedden (Offender)   Solicitors: Ms K Stanley (DPP)
File Number(s):	2017/00103092, 2017/00291434
Publication restriction:	Non-publication order of offender’s and victims’ names

Judgment

1. The prisoner appears for sentence today in relation to a number of offences committed between late December 2016 and just before 5 April 2017, the date the prisoner was arrested and came into custody. He has been in custody since his arrest and all time served in custody will be taken into account in the fixing of a sentence with which I am now concerned. As I understand the matter, although the cover sheet refers to indictments and the like, all matters are matters for which the prisoner was committed for sentence from the Local Court. There are, in addition to the offences committed for sentence, nine matters on two Forms 1 to be taken into account in respect of two of the offences. The placing of the matters on Forms 1 obviously as a result of some plea negotiations.

2. Having regard to the complexity of the charges and the fact that the prisoner has saved the respective complainants from having to give evidence, and also having regard to him being committed for sentence from the Local Court, I propose to give the prisoner a discount of 25% upon the otherwise appropriate sentence in respect of each sentence I impose to recognise the utilitarian benefit of his pleas of guilty. Notwithstanding a delay of approximately 15 months from the time of his arrest to the time of his committal, it should be pointed out that the prisoner was charged with only some of the offences when arrested in April 2017 and further charges with which I am now concerned were not brought until September 2017. The discount is in accordance with the submissions of the parties and the relevant principles arising out of the guideline judgment of Thomson and Houlton v R [2000] NSWCCA 309.

3. For sentence, there are firstly six offences of sexual intercourse with a person of or above the age of 14 years and under the age of 16 years, contrary to s 66C(3) Crimes Act 1900. I will refer to these offences as the “sexual intercourse” offences. Each of these offences carries a maximum penalty of ten years’ imprisonment. There is no standard non-parole period.

4. There are five of the same offences to be taken into account on a Form 1 in respect of one of the matters for sentence. As I understand it, that is sequence 3. All of these offences - that is, the matters for sentence and the matters on the Form 1 in this respect - relate to the same complainant in respect of offences occurring between approximately February 2017 and 24 March 2017.

5. In respect of this particular victim there is also for sentence an offence of “failing to comply with reporting obligations” contrary to s 17(1) Child Protection (Offenders Registration) Act 2000. This particular offence has a maximum penalty of five years’ imprisonment, again with no standard non‑parole period.

6. In respect of this matter, there are four offences on a Form 1 brought under the same provision, each admitted to, as with the other matters on a Form 1, by the prisoner. These four matters on the Form 1, concerned with the sequence 12 offence, relate to the prisoner’s contact with four other persons other than the complainant in the sexual intercourse matters.

7. The victim of the sexual intercourse offences was, at relevant times, 15 years of age, having been born in December 2001. I just pause for a moment to point out I am not proposing to give the precise birth-dates of any relevant complainant to keep the identity of the complainants anonymous. In relation to the other young people concerned with the matters on the Form 1 in respect of the Child Protection Act offences, as I might call them, one of those young persons was a male, relevantly 15 years of age, one was a female in respect of another matter on the Form 1, and the two other offences on the Form 1 related to a 14 year old male born in September 2002 and a 15 year old male.

8. These last two persons - the 14 year old male and the 15 year old male - were the victims of indecent assaults for which the prisoner has been committed for sentence and constitute principal offences for sentence. The two offences of indecent assault of a person under the age of 16 years are brought contrary to s 61M(2) Crimes Act 1900. Each of these offences carries a maximum penalty of ten years’ imprisonment with a standard non-parole period of eight years’ imprisonment.

9. The context of the offending with which I am concerned is properly to be found in the circumstances that led to the obligation of the prisoner to report information under the Child Protection (Offenders Registration) Act. Hereinafter I will refer to that, if needs be, as the “Child Protection Act.” Between 11 August 2009 and 27 March 2016 the prisoner was subject to an Extended Supervision Order (an ESO) made by the Supreme Court of New South Wales as a consequence of the prisoner’s lengthy criminal history relating to sexual offences committed against children and in the circumstances of his release or his impending release, having served 12 years in gaol in relation to sexual assault offences.

10. The prisoner meets the definition of a “registerable person” pursuant to the Child Protection Act, in that, in April 1998, he was convicted and sentenced in relation to 24 child sexual assault offences and served the entirety of the sentence. He was placed on the Child Protection Register for a reporting period of 15 years. Furthermore, he was advised of his obligations to report relevant matters for the purposes of the Child Protection Act on 1 April 2006 by a relevant authority, signing a form acknowledging his understanding of his obligations.

11. His obligations included the requirement to provide information about any children with whom he was in contact in any way, whether personally, by phone or by internet, where the child was under the age of 18 years. A child is relevantly defined as a person under 18 years of age. He further signed a form on 23 December 2006 agreeing to report personal information that was correct and reporting any changes required under the Act to an appropriate authority or person.

12. I will come back to the detail of the prisoner’s criminal history in a little while. However, a further context for the matters for which I am concerned requires consideration of the report of Dr Olav Nielssen, an eminent and respected forensic psychiatrist, who has had contact with the prisoner intermittently over the last 13 or 14 years, both whilst the prisoner was in custody and also whilst the prisoner has been in the community. In fact, Dr Nielssen prepared a report dated late 2018 for these proceedings, to which I will refer in a little while.

13. One of the aspects of the report he prepared, in the context of the consideration of the causes of the prisoner’s offending and it’s seriousness, was his response to a specific question asked of him by the prisoner’s instructing solicitors as to what was the character of the causal link between the offences and the prisoner’s “personality.” He observed in his report that the prisoner described himself as a “hebephile (sic).”

14. I have seen this expression elsewhere, expressed by people who have been convicted of multiple assaults upon teenage children, usually boys. I have understood it to mean, in the definition of at least one such person, as being “a lover of youth.” Dr Nielssen observes that the prisoner has had a longstanding attraction to teenage boys and has a “rather self-defeating” personality, being “reckless” with his liberty, most evident as was observed by the psychiatrist in the further offences.

15. To the psychiatrist, the prisoner expressed considerable resentment of “his treatment and restrictions that have been placed upon him." The psychiatrist expressed the view that his further offences may reflect his defiance of authority. The psychiatrist was also specifically asked whether there was evidence that the prisoner was relevantly “a paedophile.” Dr Nielssen said the medical definition of paedophilia refers to a specific attraction to prepubescent children, whereas CF has always maintained that he is attracted to teenage boys. He pointedly said:

“However, I have not known him to be interested (in) homosexual relationships with adult men and his interest in teenagers, including boys under the age of 16, does seem to be rather specific and fixated.”

16. From the outset, I point out that I do not sentence people on the basis of labels that may be attached to them. I can never remember specifically identifying a person for sentence as a “paedophile” or anything similar in order to describe the criminal activity involved. It is the facts that are important, not labels that can be attached to them. But what the criminal history of the prisoner emphasises, or underlines, and the report of Dr Nielssen confirms, is that both in these instances with which I am concerned and in the past, the prisoner’s criminal conduct is calculated and deliberate, with the prisoner targeting people with whom he knows it is not lawful to have a sexual relationship. In fact, as I said, this has been the case for many years.

17. I have the remarks on sentence in respect to proceedings on 3 April 1998 when the prisoner appeared in the Sydney District Court to be sentenced in relation to 24 offences of highly similar conduct with which I am now concerned. The sentencing judge was the late David Shillington QC. There were three victims. One was 14 years of age at the time of the commencement of the offending, which occurred between 1974 and 1978. I point out that the prisoner developed a long-term relationship with that particular complainant.

18. The second victim commenced his relationship with the prisoner at the age of 13 years and the relationship continued from 1987 to 1989. The third victim was either 14 or 15 years of age when the offending occurred in 1988. The pattern of behaviour in relation to those offences - the grooming of the relevant victims and the like - was very similar to the current matters. In fact, if a trial had been run in relation to these matters I have no doubt that there were various tendencies arising out of those previous convictions that would have been available for consideration by a jury on the issue of whether the accused was guilty or not.

19. One of the issues arising in that particular sentencing proceeding, related to the observations of the learned judge that it had been put to him that the relevant relationships could be described as “monogamous” … “in contrast to haphazard promiscuous conduct.” The judge dismissed this contention as being difficult to reconcile with claims made by the prisoner, obviously in evidence presented to the judge, in a more public setting when interviewed on a national current affairs program when the prisoner claimed that “200 to 300” … “young boys had passed through his life and the lives of other pederasts,” during a particular time in his life prior to that interview in 1993.

20. I appreciate, of course, the prisoner was not boasting in the context of the interview that was conducted, as I understand it, nor am I suggesting that the prisoner has had a relationship with 200 to 300 boys. But the point I am making is that the conduct with which I am concerned merely reflects strongly ingrained conduct which the prisoner has been involved in over a number of years - at least 50 years, it would seem by his own admission and for which he has been sentenced from time to time.

21. According to his New South Wales criminal history and his Victorian criminal history, he commenced committing sexual offences against underage children in Victoria and New South Wales it would appear in the early 1970s, but interestingly enough was not sentenced in relation to these matters until February 1992, having failed to appear in Court in Victoria in June 1974. In the meantime, he had been sentenced in relation to major drug charges for which he received a discount for certain matters and was extradited to Victoria to be sentenced in the County Court in 1992.

22. Coming back to the detail of his criminal history, there are a number of stealing matters of a minor nature in the 1960s, but the first term of imprisonment was imposed at the Parramatta District Court in August 1989 for the offences of supplying a prohibited drug and conspiracy to supply a prohibited drug. For those offences he received sentences of five years’ imprisonment with a three year non-parole period.

23. As I said, it was on release for that sentence of imprisonment that he was extradited to Victoria and sentenced to a total of two years six months’ imprisonment with a minimum term of 15 months’ imprisonment in respect of what appear to be three offences of buggery, one with a male under 14 years, and offences of indecent assault and gross indecency, as they are described in the criminal history. Subsequently, after being released from custody in Victoria, he appeared before his Honour Judge Shillington on 3 April 1998, and the sentence imposed by his Honour effectively was one of 12 years’ imprisonment with a non-parole of nine years.

24. There were 24 offences, as I previously identified. These included offences, given the period of time over which they were committed, that represented offences in some respects that were no longer offences at the time of sentence, such as indecent assault of a child, buggery, sexual intercourse without consent, aiding abetting sexual intercourse without consent on a person under 16 years and homosexual intercourse with a person aged between ten and 18 years. Just describing the charges reflects, as I said, offences that at the present time, for example, are no longer expressed in that way under the relevant provisions of the Crimes Act. In fact, some of those offences are not offences at law now.

25. In relation to that sentencing exercise I have read the statement of facts, the judgment of the Judge of the District Court and the judgment of the unsuccessful appeal of the prisoner to the Court of Criminal Appeal. I noted in relation to sentences imposed by his Honour Judge Shillington that they do not provide comparative purposes for this particular sentencing exercise for a range of reasons. One is that his Honour approached the matter of totality by just imposing, effectively, the same or very similar sentences for all offences but making them concurrent one with the other.

26. His Honour did not have available to him at that time s 53A of the Crimes Act (Sentencing Procedure) Act 1999; it had not been enacted. The principles of totality to be reflected in sentencing had not been refined as they have subsequently to the High Court judgment in 1998 of Pearce v R (1998) 194 CLR 610, particularly the observations of the majority at [45].

27. I note in relation to the appeal to the Court of Criminal Appeal the principal ground argued, and ultimately unsuccessfully argued, was that his Honour had not given particular weight or sufficient weight to a claim of a discount for cooperation of the prisoner, a matter dismissed by the Court of Criminal Appeal on the basis that that had been properly taken into account on another occasion.

28. I note that while serving that sentence he appeared again at the Sydney District Court in October 1999. He was then convicted of four counts of buggery. These offences were committed between 1971 and 1973. I do not know which judge he appeared before in relation to those matters, but he was sentenced to four years’ imprisonment. The sentence, as I understood it, commenced at the time of the imposition of the sentence so those crimes were matters for which he was given sentences to be served entirely concurrently.

29. I note in the context of supposedly - not that it was suggested here - the comparative relevance of the sentences imposed by Judge Shillington, putting aside the more technical reasons for not regarding them as being of any real guidance in quantitative terms, that some of the offences to which the prisoner pleaded guilty to were more serious than the offences with which I am now concerned, having regard to the maximum penalties required to be imposed. For example, in relation to the offence of buggery and sexual intercourse without consent.

30. I note also in relation to the matters that Judge Shillington was concerned with that he was sentencing the prisoner not only for a larger number of offences, but offences that were committed over a longer period of time - in fact, over many years in some instances - and I also note some of the counts were “representative,” there being noted in the facts that particular counts reflected, in fact, hundreds of incidents involving the prisoner and the complainant to which his Honour was referring.

31. As to the facts of the current matter, the various offences of sexual intercourse with a person under the age of 16 arose in a town on the south coast where the prisoner was living or near which the prisoner was living, at a relative’s property in a caravan. The prisoner met the young person concerned with the sexual intercourse matters in a café and invited the complainant to come to where he was living to smoke “weed.”

32. At the prisoner’s residence on the first visit by the young person the prisoner asked the victim, after rubbing his penis, if it was okay to perform fellatio upon him, to which the complainant consented. This act lasted for approximately ten minutes and is described by reference to the sequence numbers as the sequence 1 offence.

33. The sequence 2 offence, which is on the related Form 1 to the sequence 3 offence, occurred at the prisoner’s residence at a later time where the prisoner, after smoking cannabis with the complainant, inserted two fingers into the complainant’s anus moving his fingers in and out.

34. The next offence which the prisoner was committed for sentence, the sequence 3 offence to which, as I said, a number of matters are on a Form 1, occurred at the same time or shortly after when the prisoner laid with the complainant and asked the complainant if he wanted to “fuck,” to which the complainant agreed. The prisoner attempted to place his penis in the complainant’s anus in one position unsuccessfully and then managed to do so in another position, followed by an act of fellatio, perform one upon the other.

35. A week later, again after smoking cannabis at the prisoner’s residence, the prisoner performed fellatio on the complainant. This is the sequence 4 offence, an offence for sentence. Immediately after, the prisoner inserted his finger into the anus of the complainant, causing the victim some discomfort. This is the sequence 5 offence, which is on a Form 1. The prisoner then asked the complainant if he, the prisoner, could perform intercourse, which he did by placing his penis into the anus of the complainant. However, they stopped when the complainant said it hurt. This is the sequence 6 offence.

16. A week later, the sequence 7 offence was committed. This is on a Form 1, and occurred at the prisoner’s residence after cannabis was smoked, and the prisoner performed fellatio on the complainant. The sequence 8 offence, which is another matter on the Form 1, involved the prisoner placing his finger into the anus of the complainant and then placing his penis into the anus of the complainant, that latter act being sequence 9. The complainant again, on this occasion, complained that this hurt and the activity stopped. This is a matter for sentence. The sequence 9 offence.

17. On 24 March 2017 the complainant went to the prisoner’s residence, they smoked cannabis, the prisoner performed fellatio on the complainant, which is a matter for sentence, being the sequence 10 offence, and a further matter for sentence, which is the sequence 11 offence, is an act of fellatio performed by the complainant on the accused consensually. I hasten to say there is no suggestion of an absence of consent on the part of the complainant.

18. The prisoner was arrested in relation to these matters, as I earlier mentioned, on 5 April 2017. Arising out of the contact the prisoner had with the complainant and other matters, including exchanging text messages and the like, the prisoner committed the sequence 12 offence of failing to comply with reporting conditions having an obligation to notify the relevant authority of the details of the child with whom he had contact.

19. These various offences that I have described by sequence number relate to a series of charges, obviously brought shortly after 5 April 2017. The subsequent charging of the prisoner in September 2017 led to another series of charges with sequence numbers attached to a different ‘H number’, as it is described, than the ‘H number’ for the earlier charged offences.

20. The investigations of police following the initial charging led to the identification of four other persons to whom I have referred. The activities of the prisoner involving these children include grooming conduct such as providing cigarettes, buying drinks, driving the children around the town where the prisoner lived, and other contact which the prisoner was all obliged to report but failed to do so, thus committing the further offences on the Form 1 attached to the sequence 12 offence in relation to the first victim.

21. This behaviour by the prisoner in relation to these four people was classic grooming behaviour, certainly at least in relation to the boys to whom the prisoner had a sexual attraction. This occurred all between December 2016 and April 2017. During this period, the prisoner committed the two offences of indecent assault on a person under the age of 16, each involving one of the two young boys to which I made specific reference earlier.

22. The first offence occurred it would appear, in a public area during the school holidays, over the Christmas period 2016 to 2017. In that matter - this is the indecent assault matter - the prisoner spoke to one of the young people, who was 14 years of age whilst he was sitting in the front passenger seat of the prisoner’s vehicle. The prisoner offered him a rolled cigarette. The prisoner asked him how old he was turning that year and the boy said, “15.” He then placed his hand on the child’s upper thigh next to his genitalia and said, “So do you have pubes,” to which the child did not reply. The child then left the company of the prisoner.

23. The second indecent assault matter involved a male aged 15. The prisoner had earlier spoken to this child during a time when he was driving him in his car and told the child that he heard that he was “gay” and that they could be “best friends.” Later on, this young person smoked cannabis at the prisoner’s property. He was asked by the prisoner if he had ever considered having a relationship with an older male. I point out the child at various times had told the prisoner that he was various ages, ranging from ten to 18, until ultimately he told the prisoner he was in fact 15 years of age.

24. The indecent assault of this person occurred on 1 April 2017. The child was turning 16 later that month. The prisoner was with the child at his property. He was walking with the complainant and he put his hands on the complainant’s buttocks. The child responded by saying, “What the fuck?” They continued walking to a caravan occupied by the prisoner, where they had a conversation. About ten minutes later, the prisoner suggested to the complainant that he and another person could be involved in a threesome but the child said he was not interested.

25. The prisoner then asked the child to take a note to a third person, which the child declined to do. Later on, the prisoner drove the complainant to his home and on the way purchased $20 credit for the child’s mobile phone and gave him some tobacco, asking the child to keep in contact with him.

26. After the prisoner’s arrest, a search of the prisoner’s property found a handwritten note referring to the name of the person the subject of the prisoner’s conversation with this last-mentioned complainant. They also found some cannabis. This evidence is of a supportive nature to the claims of that particular complainant and, in respect of the cannabis, other complainants. The prisoner was arrested in relation to these latter charges, as I said, on 26 September 2017. Then he was in custody bail refused in relation to the earlier matters.

27. So far as other evidence in the case is concerned, beyond what I have identified from the agreed statement of facts and the various judgments and other documents relating to prior convictions, I have a number of reports. I have a report from Dr Nielssen, to which I have referred, I have a report from Dr Susan Pullman dated 16 September 2017, and I have two reports from the Justice Health service under the hand of Dr Jacques Ette, the first report dated 5 July 2019, the second report dated 21 August 2019.

28. I have already referred to part of Dr Nielssen’s report and I do not propose to dwell upon matters of personal history. I have taken what the prisoner has said about his personal history into account. There does not seem to be any controversy about the detail of his upbringing and other statements he has made in the course of the reports made by the doctor and by the psychologist.

29. The ultimate upshot of the report from Dr Nielssen is that when he last saw the prisoner there had been some physical deterioration of the prisoner in the context of a history of medical issues, including myocardial infarction and emphysema. He noticed that the prisoner had lost weight, seemed more frail than when last seen, and walked with a stick. He did not notice any obvious signs of neurological disorder, such as prominent tremor or loss of verbal fluency, but the prisoner’s hearing was impaired, he was stooped, his mood was flat and some of his remarks were “nihilistic.” He made some observations about the prisoner’s manner which I need not repeat for the purposes of this judgment.

30. He formed the view, in his report of October 2018, that there was no obvious loss of inhibition or gross impairment of social judgment, that he did not formally test his cognitive function. The diagnoses he made were, firstly, of a longstanding chronic depressive illness which had been diagnosed many years before. He said that that diagnosis rested upon not only what the prisoner’s version of his history reflected but also long-term treatment with antidepressant medication and his clinical presentation on other occasions.

31. He made a diagnosis also of “substance abuse disorder,” reflecting upon a history of heavy drinking. He said there was a possibility that the prisoner has age-related cognitive impairment, most likely due to cerebrovascular disease. Largely, in the context of it being raised before, because of his poor judgment and self-defeating behaviour. He thought, however, that the prisoner was not “significantly different in his mental function, apart from the effect of frailty relating to his poor physical health.” He also said he did not have “obvious impairment and orientation, memory, communication and reasoning ability.”

32. He was asked a number of specific questions, some of which I have already quoted in terms of the answers given by the doctor. So far as any causal connection with the depressive illness, he said his depressive illness may have contributed to a lack of concern about the potential consequences of his behaviour. The substance abuse disorder may have contributed to impaired judgment in committing the offences. So far as future matters were concerned, he reflected upon the fact that the prisoner had had the most intensive counselling available in the course of his preparation for release on the last occasion as a condition of his extended supervision order without any change in his primary sexual interests or, it seems, in his willingness to abide by the law in order to remain at liberty.

33. He noted a previous trial of libido-lowering medication but that was unsuccessful. The prisoner did not like the effect of the medication and stopped it when it became apparent that he was not going to be granted parole, and it was not a condition of his ESO during the years he was at liberty to take the medication. He said that, in any case, given the nature of his offences and the state of his health, the prospects of community treatment at some stage in the future, is hypothetical. He said that he did not anticipate any great change in CF’s sexual interests or personality style at this late stage. He was able to look after himself in the community despite his many restrictions, treatment with libido-lowering medication in the future might reduce his interest in social interactions that have sexual connotations.

34. He said, so far as being in custody was concerned, that the prisoner is “quite habituated to prison” given the time that he has spent in prison and the time in prison as part of the preventative detention regime for dangerous sexual offenders. He noted the usual restrictions upon protection prisoners with restricted access to healthcare and additional difficulties arising from his age relating to his health conditions. He did not believe that the cognitive dysfunction was a significant matter in his presentation on clinical examination.

35. There is some other evidence, though, about cognitive dysfunction arising from progress notes during his time in the care of Justice Health in more recent times and I particularly refer to notes that are summarised in the report of Dr Pulman at p 5 of her report. I should point out that I do have another report from Dr Nielssen dated 4 April 2018, but that is overtaken by the later report.

36. Dr Pulman conducted some psychological testing of the prisoner but extensively reviewed the Justice Health notes and other medical notes which I do not believe Dr Nielssen specifically refers to or analyses in his various reports. I think I should, by reference to the report of Dr Pulman, just summarise what she refers to arising out of the two reports from Dr Ette.

37. Dr Ette reflects upon the fact that the prisoner has a myocardial infarction in March 2011. He also had another percutaneous coronary insertion to his right coronary artery in 2016 and he takes medication for blood thinning. He has hypertension for which he is treated with particular medication. He has also what is described as hypocholesterolaemia for which he is taking statin-type medication. He has an abdominal aortic aneurysm which was repaired at the Prince of Wales Hospital on 17 June 2019 and he was awaiting a ventriculoperitoneal shunt to reduce pressure on the brain caused by fluid accumulation.

38. He has chronic obstructive pulmonary disease and emphysema and has sleep apnoea, has chronic lower back pain and his mobility is impaired by back pain, and his frailty is a significant fall risk. He has also said, in Dr Ette’s report in July 2019, to be suffering from depression. He also suffers from “cognitive impairment.” He is serviced by nurses and medical officers who are “able to provide primary care services.” All the resources of the State’s public health system, including its hospital inpatient, diagnostic outpatient, Allied Health and Public Health Services are available for use in his treatment.

39. The second report dated 21 August 2019 dealt with four specific questions that I was requested by counsel for the accused to pose to Justice Health and I do not propose to go through the detail for that beyond making this observation: that the prisoner, as I understand it, is awaiting some treatment in relation to his hydrocephalus condition - that is water on the brain. It has been cancelled on one occasion in August 2019.

40. The fluid accumulation on his brain does affect his mobility, but otherwise, it is said that his cognition has not been affected by the condition. His condition is described as “independent with activity of daily living.” He “mobilises” slowly in a wheelchair. He is alert and oriented. He has had falls in custody in the prison hospital since returning from Prince of Wales Hospital, and so far as his back pain is concerned, he is being reviewed by an orthopaedic surgeon. He has been diagnosed with osteoarthritis in the L5-S1 facet joint and will be reviewed after the shunt is prepared. What is self‑evident from the reports from Justice Health is that they are familiar with his conditions and they believe that they can provide a reasonable standard of care.

41. Coming back then to Dr Pulman’s report as it is relevant to the matters that are said to arise from it relevant to this sentencing exercise, Dr Pulman, at p 8 and following, sets out what her clinical opinions are, noting his physical immobility. She formed the opinion that his pre-morbid level of intellectual functioning was estimated to be within the average range. There was a limitation upon tests she could conduct but the results that she was able to obtain suggested deterioration in his cognitive function. Deficits were evident in verbal reasoning, attention and concentration, processing speed and executive functioning.

42. I note, of course, her assessment occurred on 15 September 2019. She noted a previous assessment on 20 November 2018 noted a score of 13/30 on the Montreal Cognitive Assessment Tool, indicating cognitive impairment. It is likely, she said, that his cognitive deficits are the result of his history of cardiovascular risk factors. She said further assessment is required after he is provided with the relevant shunt. She noted his level of hearing impediment. She believed his deficits in cognitive function related to attention and concentration, information processing, verbal reasoning, executive function, which fell below pre-morbid estimate, although she cannot give a quantitative assessment of the extent to which it does.

43. She believed that there was evidence to suggest the presence of cognitive deficits most likely associated with a developing neurodegenerative disease. She said he was a vulnerable person in the context of his current stage of health, being frail, wheelchair-bound and unable to “mobilise independently.” He claimed to have some limited use of his hands. I have taken her report into account and I will come back to its relevance in this sentencing exercise.

44. In assessing the objective seriousness of the offending with which I am concerned by reference to the facts, for the moment putting aside irrelevant “purposes of sentencing” to that assessment as they are identified in s 3A Crimes (Sentencing Procedure) Act 1999 - hereinafter to be referred to as “the Act” - there are a number of matters raised by the parties in their submissions required to be noted for the purposes of that assessment.

45. The accused’s counsel submitted that the sexual intercourse offences involving the same victim were clearly less serious than the worst case in the category and with that assessment I agree. The Crown submits that in the context of the prisoner’s prior history, the age difference between the prisoner and the complainant, the prisoner being 68, the complainant being 15 at the time, and the character of the exploitation, bearing in mind the context of the prisoner’s life experience, the offending was “above the mid-range of objective seriousness.”

46. In this regard, I am referred by the Crown in terms of general principle, not necessarily specific to these offences, to the observations in the Court of Criminal Appeal in the decision of ABS [2005] NSWCCA 255 at [26]. In that judgment there is reference to the need to impose salutary penalties for offending against children and the exploitation of them with particular significance to general deterrence.

47. There is need, however, in each offence for sentence to consider these matters in the context of the relevant maximum penalty, bearing in mind a consideration of where the offending sits in the range of offending relevant to people of the age of the victims in this matter, and also in consideration of general and specific provisions, legislatively and otherwise, relating to aggravating and mitigating circumstances when assessing the objective seriousness of the offending.

48. Also, there is to be taken into account in such assessments, the relevance of existing mental health issues as they relate to the assessment of moral culpability or the matters adverted to in the submissions of counsel for the accused, to which I will come in a moment.

49. I appreciate in relation to these offences there are no standard non-parole periods. So the expression, “middle range of objective seriousness” as it arises under s 54A(2) of the Act does not directly arise. But it has become a means of expression of trying to categorise the seriousness of offending in a non-legislative way.

50. Both parties in relation to these offences draw my attention to the fact that the complainant was aged just over 15 years of age, therefore slightly above the midpoint of the range of ages covered by the section; both parties draw my attention to the difference of age as a relevant factor. I have already referred to that difference in age. I should point out, of course, that on my understanding of the matter, the prisoner now is 72 years of age.

51. The advanced maturity and experience of the prisoner is a relevant matter in the sentencing exercise. This is not a case of sexual experimentation or exploration by a naïve or immature offender which may make such offending less serious. The defence submits that whilst the age difference is significant, it makes no difference whether the age difference is 50 years, 40, 30, 20 or ten years. It may be correct to say that a 50 year age difference is not an exacerbating factor by comparison to a significant age difference such as 30 or 40 or 20 years. But I cannot agree that, depending upon the facts of the case, that a lesser age difference is not a relevant distinguishing factor from the circumstances of an older offender.

52. This offender was not only of significant greater age, but more importantly, was of enormously greater experience than the victim, making deliberate decisions in the seduction of a person with whom or in respect of whom the law forbids any type of sexual contact. This is aspect of the matter is to be seen also in the context of the relevant aggravating factor that arises under s 21A(2)(d) of the Act, a factor that is relevant to the assessment of the objective facts. That is, that the prisoner had a record of previous convictions, particularly appearing for sentence in relation to an offence to be regarded as a serious personal violence offence, having previously had convictions for such offences.

53. It was conceded in submissions by the defence that the issue of consent is not a relevant factor. A relatively modest maximum penalty compared to offences with other aggravating features for children of the same age reflects this. Particularly those offences where lack of consent is an element of the offence. But there is absent as a factual context, it must be conceded, any suggestion of threats, intimidation, coercion or even surrounding violence, allowing for the fact that such matters may give rise to additional charges or provide a more sinister context than is currently the case in relation to the offending.

16. It is to be remembered in respect of the matters that I am concerned with, that there is a progression on the particular occasions in the character of the offending and the nature of the sexual intercourse performed. This offender did not start off offending towards this victim with a clear record, arriving at the time of the commission of the last offence, at a point where he was an unconvicted sexual offender. But as each offence was committed his prior conduct, convicted or unconvicted, became incrementally more salient.

17. Another relevant factor in assessing the seriousness of this offending is that in the circumstances of the prisoner’s grooming of the victim and his contact with the victim, the prisoner was acting illegally. His plea to the offence contrary to s 17 of the Child Protection Act reflects this. A matter raised in submissions in respect of this matter, as it may be relevant to the objective facts for the principal offences for sentence, was whether the sexual intercourse offences and also the indecent assault offences were committed in breach of conditional liberty, contrary to s 21A(2)(j) of the Act. This was, it seemed to me in most respects, the most contentious matter of dispute between the defence and the Crown. The conditional liberty being the restraint of the ‘Child Protection’ legislation.

18. As an aggravating factor, it is certainly relevant to the fixing of the appropriate sentence and the assessment of the objective seriousness. Ordinarily, if taken into account as an aggravating factor, it would require an increase to the otherwise appropriate sentence for a particular offence, all other factors taken into account, depending, of course, upon the nature of the breach of conditional liberty. A breach of parole granted in respect of similar offending may be seen as more serious than offence committed whilst on bail in relation to an offence that was of a minor character and may not necessarily lead, by itself, to a deprivation of liberty.

19. The Crown submitted that conditional liberty was not confined to circumstances where the foundational offence giving rise to the conditional liberty is one of itself which must be punishable by a term of imprisonment, citing R v Porter [2008] NSWCCA 145, at [86]. The Crown also, properly, referred me to the decision of Archer [2017] NSWCCA 155, which held, amongst other things, that a breach of an apprehended violence order could constitute a breach of conditional liberty.

20. Accepting that this is so, and accepting that the foundational offence giving rise to the conditional liberty does not have to be punishable by a term of imprisonment, that does not necessarily mean that failing to register his contact with the child, contrary to the Child Protection Act, is itself a breach of conditional liberty as an additional aggravating factor. The defence submissions seemed to concentrate on the risk of breach of an extended supervision order and it was put in writing by learned counsel for the prisoner that a breach of an extended supervision order would not immediately or necessarily result in the deprivation of his liberty. I suppose the same submission could be made in relation to a breach of the Child Protection Act provisions for which the prisoner appears for sentence.

21. It was submitted by counsel for the prisoner that there were matters arising out of the Crimes (High Risk Offenders) Act for consideration that themselves did not necessarily reflect upon a breach of conditional liberty. It was submitted, in essence, that his liberty was only conditional if convicted of an offence under the section and the acts of the prisoner giving rise to a potential breach of the section were the very acts for which he was for sentence in any event. In other words, as I understood that submission to interpret it, it could not be an aggravating factor if it involved a ‘double-dipping’ exercise.

22. These matters raised by the defence by reference to the particular legislative provisions are not a relevant issue here. It seems that the offender’s offending occurred outside the period of the ESO. The Crown’s submission I think is accurate in that it says that the breach for conditional liberty arises out of his failure to comply with the ‘Child Protection’ legislation, although that gives rise, of course, to particular charges, either a principal offence or the matters on the Form 1.

23. To my mind, this interesting debate was somewhat semantic. I say that because the fact of the matter is when one is considering aggravating factors under s 21A(2), what this requires is consideration of aggravating factors to be taken into account in addition to matters that properly arise under s 21A(1) of the Act. It seems to me, as I have earlier pointed out by trying to portray the context of the offending with which I am concerned, that the character of the contact of the prisoner with this victim - and, for that matter, the other victims of the indecent assaults, because the observations I make are relevant to both the sexual intercourse offences and the indecent assault offences - properly needs to be considered not through the prism of an alleged breach of conditional liberty, but as a relevant matter arising under s 21A(1) of the Act. That is, the matter aggravating the offending was that the prisoner had contact with the victims in circumstances that were effectively prohibited by the restrictions placed upon him by the Child Protection Act.

24. He had to report his contact with such people, and if he reported that contact, he would no doubt have been directed to cease that contact. Whether he would have or not is another matter. Obviously, he did not report it because he knew that what he was doing gave him the opportunity to fulfil his sexual desires, which were self-evident in his own admissions to Dr Nielssen, and which in themselves involved illegal acts amounting to crimes. In these circumstances, I feel to regard the conduct as a breach of conditional liberty in the sense of being an additional aggravating factor would be, in effect, to ‘double-dip’ upon the same set of circumstances.

25. As to the two offences with standard non-parole periods by reference to the terms of s 54A(2) of the Act, there is a legislative requirement to assess in the fixing of the non-parole period, the relationship of the relevant offences to an offence that is “within the middle range of objective seriousness,” only having regard to the objective features of the case. In that regard, the Crown agrees with the defence that the offence is below the middle range of objective seriousness. In my view, clearly, this must be so for a range of reasons.

26. First of all, the relevant indecent assaults were brief and did not involve persistent touching of the relevant victim, as I have earlier outlined in the facts. Although there was a period of time of grooming. I bear in mind, of course, the age of the respective victims was close to the outer age for which an offence of this type could be committed. The section contemplates theoretically indecent assaults committed on a person a young as one day old up to an age of one day short of 16 years of age.

27. I note that the brief touching was in one instance outside the clothing with one child on the buttock, although an indecent assault, not the most serious type of indecent assault in its terms. The other touching was near the genitalia of another but not on the genitalia. The difference in age, of course, is a relevant consideration that I have earlier referred to. The additional aggravating factors taken into account relevant to this matter do not bring the matter or the matters within the middle range of objective seriousness.

28. Of course, these additional aggravating factors to which I have referred, the criminal history and the like, do not permit a finding that the offences are of the lowest or at the very low level of objective seriousness. I make this finding in the context of what I have earlier pointed out of the illegal character of the contact between the prisoner and the victims. The truth of the matter is that the ‘Child Protection’ legislation and the requirements of notification by the prisoner are designed to prevent offending, to deny the prisoner the opportunity to offend, which he clearly flouted.

29. So far as mitigating factors that arise under s 21A(3) of the Act, the plea of guilty to each matter is a mitigating factor for which the prisoner receives a discrete discount. Whilst I cannot find planning as an aggravating factor, I also cannot find lack of planning as a mitigating factor. It is quite clear that the grooming tactics of the prisoner in relation to all victims reflect a considerable premeditation on the prisoner’s part. None of the offences could be described, except for perhaps the tapping of the child on the bottom, as opportunistic or impulsive.

30. It is self-evident from the prisoner’s own statements, to for example, Dr Nielssen, that the prisoner has been driven by the same sexual urges involved in these offences for the past 50 years, and as Dr Nielssen observed, he really has never had any desire to mitigate these matters of his own motion, notwithstanding the attempt to use a medication to lower his libido.

31. The other outstanding matters arising from the evidence for consideration are the relevance of the mental state of the prisoner and his physical state, his depressive illness and the like, and any diminished cognitive impairment that can be found, as well as his vulnerability in custody to consideration of the weight to be given to general deterrence and/or personal deterrence. The prisoner has not given oral evidence in these proceedings. But I am prepared to still act upon the availability of evidence in the reports.

32. The Crown submits in an overall way that the prisoner’s ill health may be a mitigating factor where it establishes that prisoner will be more burdensome because of the state of his health, or that the imprisonment will have a gravely adverse effect on the prisoner’s health. I pause to point out that it is clear that the state of the prisoner at the present time will suggest that imprisonment will be more burdensome than it would be for a person of ordinary health. Although I cannot conclude that imprisonment will gravely affect his health. The Crown pointed out that the handling of illness or disability is a matter for prison authorities and they have the responsibility to ensure the prisoner is not subjected to undue hardship, citing various authorities for that proposition, and I accept that that is so.

33. The defence submission is that both the cognitive impairment and the longstanding depression require lesser weight to be given to general deterrence and that there is no requirement for greater weight to be given to specific deterrence, having regard to the prisoner’s condition, and particularly the unlikelihood of him being able to commit further offences given the time that he will spend in custody and the diminished character of his health.

34. Two authorities were cited. One, the decision of Hulme J when sentencing a man called Chong [2012] NSWSC 1309, particularly citing [40] of the judgment. I do not propose to quote the particular passage because it is quite clear, as was submitted in oral submissions by defence counsel who skilfully represents her client’s interests, that Mr Chong’s situation is substantially different than that of this particular prisoner.

35. A more relevant judgment was the decision of Jomaa [2019] NSWCCA 98, which was cited again by learned counsel for the prisoner. I refer generally to the summary of principles again by Hulme J, this time in the Court of Criminal Appeal at [33]-[42]. The decision of Jomaa needs to be seen in a particular context. First of all, there is the decision in the matter De La Rosa [2010] NSWCCA 194, particularly at [177]-[178] in the judgment of McClellan CJ, who was then the Chief Judge of the Common Law Division.

36. He noted in that judgment that where an offender was suffering from a mental illness, intellectual handicap or other mental problems the principles that are derived from the authorities that he cites can be summarised as follows. Firstly:

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

95. I pause for a moment to point out that there is no evidence upon which I could conclude that the prisoner’s mental health has contributed to his offending in a “material way,” other than the matter identified by Dr Nielssen, which is not really a matter of great substance. He went on to say:

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

96. I pause for a moment to point out that by reference to that particular principle in that context, the depressive illness of the prisoner does not appear to me to be a relevant matter to justify a reduction to the weight to be given to general deterrence on that basis alone. His Honour went on to point out that:

“A custodial sentence may weigh more heavily on such a person. Because of the mental condition, the sentence will be more onerous for that person during the length of the term of imprisonment.

97. I pause for a moment to point out that whilst I do not believe the depressive illness will make the burden of a term of imprisonment more onerous for this particular prisoner, the cognitive impairment which I am satisfied is established, although at this stage unable to be properly quantified, will have an effect upon the custodial sentence and may, to some extent, get to be more burdensome for the prisoner, as will his physical deterioration, which will probably be of more significance in that regard.

98. The nature of the condition may reduce or eliminate the significance of specific deterrence. The depressive illness, in my view, does not eliminate the significance of specific deterrence. Again, in my view, the unmeasurable diminution in cognitive facilities does, to some extent, reduce but certainly does not eliminate the need for specific deterrence. There is the issue of whether the prisoner’s conditions make him a more dangerous person in the community. I do not believe the conditions, bearing in mind they are not materially contributive to the offending, present him as a danger to the community.

99. I turn to Jomaa just for the moment to note that these various matters identified by McClellan J were the subject of comment by Hulme J at [33], However, he also noted other authorities such as the decision of Wright, dealing with “health”, if I could use that expression in a more general sense, that reflected upon the fact that the interests of society do not require persons with significant health disabilities to be punished as severely as persons without those disabilities because such severity may be inappropriate to the circumstances of the case.

100. He reflected upon a range of decisions, including the High Court judgment in Muldrock. Cases, I hasten to say, involving significant intellectual disability having a material relationship to the circumstances of the offending, which does not arise here. In the decision of Jomaa, the Court determined that the finding of the sentencing judge that there should be no diminution to general deterrence having regard to the evidence was a finding perfectly open to the Court. But the Court went on to say that the finding of the judge in relation to specific deterrence was not correct.

101. It was concluded by the Court, having regard to the facts of that matter, that specific deterrence was not a matter the judge should have taken into account, even at a reduced level, and thus, there was an error in the judge’s conclusion in that specific matter. However, it is important to note in relation to the decision of Jomaa that the cognitive or intellectual disability of the prisoner in that matter was significantly greater and more easily measurable than is the situation here. As I ultimately conclude, whilst there may be some unlikelihood of the prisoner re-offending, having regard to his physical health and the time that he would be required to serve in prison, it is not a matter that is, to my mind, significant such as to require significant reduction in the weight to be given to specific deterrence in this case. It is still clearly a relevant matter for the purposes of this sentencing exercise.

102. I agree with the Crown’s submissions that, simply because of the character of the custody arrangements for the prisoner, given the nature of the offending, it is not a matter of significance in the assessment of the appropriate sentence. Nor is it a relevant matter to the determination of ‘special circumstances’ pursuant to s 44 of the Act. It is also, in my view, correct to point out that the medical management of the prisoner, given the fact that he inevitably must serve a term of imprisonment, is a matter for custodial authorities. As I said earlier, the evidence available to the Court is that that is a matter, at least at a basic level, capable of being addressed by the authorities.

103. There is nothing in the material provided to the Court to show that the prisoner is substantially deprived or disadvantaged by the level of medical care that he is currently receiving. In fact, the reports from Justice Health suggest to the contrary. I appreciate that it is common knowledge that it is not necessarily the same level of care as is available in the wider community. But it is, prima facie, sufficient to handle the health issues for the prisoner as they currently stand. Although I expect that there will be some further deterioration in the prisoner in light of the evidence available which I have also had to take into account. I have concluded, by reference to some remarks I made earlier, that the prisoner will be more vulnerable in custody, primarily because of his physical deterioration, but possibly also because of greater cognitive deterioration, if that continues.

104. The prisoner is not to be regarded as more vulnerable, though, in custody because of the character of the offending. I accept, as I said, that he is more vulnerable in other ways. There are many authorities that now reflect upon the character of classification of offenders of this type, leading to the conclusion that the vulnerability that once existed is no longer there in that regard. Although I do accept that the prisoner does have fears for his safety. The circumstances of custody for this prisoner will be harsher because of his diminishing physical power primarily, but this does not arise in relation to his depressive illness.

105. Turning to s 3A of the Act, there must be a weight given to general deterrence and some weight given to specific deterrence. So far as the other purposes of sentencing under s 3A, in the context of his current ill health and his prevailing attitudes up until the time he was arrested in April 2017, all the purposes of sentencing are of varying relevance except for the promotion of his rehabilitation. In relation to that aspect of the matter, given his age and his attitudes, I do not believe that rehabilitation is possible. His relatively advanced age is a relevant factor for the sentencing exercise. But it has to be considered in the context of the fact that he was prepared to commit serious offences of a type of which he been previously convicted, committing those offences shortly up until the time he came back into custody.

106. Given the prisoner’s experience in the past, he knew well the risk for him of being returned to prison for committing such offences. Inevitably, there would be a return to prison on arrest and conviction of those offences. So far as specific deterrence is concerned, even allowing for the fact that he may have had better cognitive facility at the time of the offending that he has now, he committed the offences knowing the circumstances of custody that awaited him. Another feature of the matter is that obviously his previous terms of imprisonment had no deterrent effect on him whatsoever before committing the current offences.

97. I have dealt with the issue of the mitigating factors arising under s 21A(3). One matter, however, that I need to address is that there is no submission made that he is relevantly remorseful or contrite as a mitigating factor. Furthermore, his counsel submitted that given the length of any sentence that would be imposed upon the prisoner, having regard to his current age - I said earlier that he was 72; of course, he is 71 - and given his health, would mean that he was unlikely to re-offend.

98. Those particular matters advanced by the defence, in my view, do not justify the finding that he is “unlikely to re-offend” is a relevant mitigating factor. He certainly does not have “good prospects of rehabilitation.” Noting, of course, inquiries made by the prisoner about the availability of libido-suppressing medication in the past, it is clear that the prisoner clearly has had no interest in rehabilitation, and I think Dr Nielssen’s report makes that clear.

99. So far as he being unlikely to re-offend, this does not arise out of any desire or strategy on his part. He is unlikely to re-offend simply because of the effluxion of time. To be a mitigating matter it would seem to me it would require, at least on the part of the prisoner, some desire to avoid offending in the future. The reason he will not re-offend is that he most probably will not get the physical opportunity to re-offend, either by intervention of death or advancement of his physical frailty.

100. Consistent with all the above findings, notwithstanding the fact that the totality of the sentencing exercise requires degrees of accumulation/partial accumulation, the overall sentence does not require a fixing of a non-parole period that reflects “special circumstances” pursuant to s 44 of the Act. The relationship between the non-parole period and the balance of the sentence and the anticipated period of parole supervision by such order, in my view, provides sufficient time and opportunity for the prisoner, if he survives his term of imprisonment I impose, to adjust to community living, to the extent that he can, and to receive such supervision and counselling that is deemed appropriate at the time of the conclusion of his non-parole period. There is no need to adjust the relationship of a non-parole period to the balance of sentence to reflect these matters. Of course, I am mindful of the fact that the prisoner was not released to parole on the last occasion he received a significant sentence. But that is no reason not to fix a non-parole on this particular occasion.

101. So far as fixing the aggregate sentences concerned, I do so in the context of the principles of totality that arise from decisions such as Pearce v R to which I referred, Hammoud (2000) 118 A Crim R 66, and the decision of Hall J in R v XX (2009) 195 A Crim R 38, particular at [52]. I also have regard in this respect to the decision of the High Court in Mill v R (1988) 166 CLR 59 at 63, which adopted what Street CJ had said in a decision of Holder [1983] 3 NSWLR 245 at 260. In that judgment, Street CJ said that:

“The principle of totality is a convenient phrase descriptive of the significant practical consideration of confronting a sentencing judge when sentencing for two or more offences, not infrequently a straightforward arithmetical addition of sentence is appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the sentences if each were viewed alone.”

112. Of course, the provision in the Act, s 53A, was obviously not available in the matter of Holder. It has only been in force now for some eight or nine years, but it provides a very practical way of giving effect to the totality of criminality.

113. One last matter that I refer to in this case in terms of the principles to be applied is that in considering the matters on the Form 1. I do so in accordance with the guideline judgment of the Court of Criminal Appeal in Attorney-General’s Application (No 1) of 2002 (2002) 56 NSWLR 147, noting the observations of the Court in respect of the need, for example, as observed at [18] to ensure that the entire point of the process is, in respect of matters taken into account on a Form 1, to impose a longer sentence than would have been imposed if the primary offence had stood alone. Sometimes the initial penalty should be small, sometimes it would be “substantial”. The Chief Justice said the constraining matters, however, are the maximum penalty for the principal offence and there is no requirement for the Court to consider identifying the extent to which the appropriate sentence has been adjusted to reflect the relevant matters to be taken into account when considering matters on a Form 1. The Court said the sentencing Court is concerned only with “the principal offence”. It is not the task of the sentencing Court to determine appropriate sentences for offences on a Form 1 or to determine what the overall sentence would have been appropriate for all the offences and then applying a discount for the use of the procedure. I generally refer to everything that was said by the Court between [18]-[44].

114. In the determination of the matters that I have identified, I have obviously taken into account all the submissions that were put before me in the helpful written and oral submissions of the parties, for which I am grateful.

115. [CF], it has taken a long time to get to this point but there was a great deal of territory to cover, particularly in a case such as yours, which is not without its complexities. You do not need to stand up, of course, but I now pronounce the orders.

116. In relation to the offences to which you have been committed for sentence and continue your pleas of guilty, you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act, I sentence you to an aggregate term of imprisonment of ten years’ imprisonment to commence on 5 April 2017 and to expire on 4 April 2027. I fix an aggregate non-parole period of seven years six months, expiring on 4 October 2024. The indicative sentences I impose are as follows.

In relation to the H63347930 sequences: 

For sequence 1 the indicative sentence I impose is three years’ imprisonment.

In relation to sequence 3, taking into account five matters on a Form 1, five years’ imprisonment.

In relation to sequence 4, three years’ imprisonment.

In relation to sequence 6, four years’ imprisonment.

In relation to sequence 9, four years’ imprisonment.

In relation to sequence 10, three years six months’ imprisonment.

In relation to sequence 12, that is a failure to comply with reporting conditions, taking into account the four matters on a Form 1, three years’ imprisonment.

In relation to the sequence numbers under H68209983: 

In respect of the sequence 4 offence, indecent assault of a person under the age of 16 years, two years’ imprisonment with a non-parole of 18 months.

In relation to sequence 6, indecent assault, two years six months’ imprisonment, a non-parole period of one year nine months.

I am required to fix a non-parole period for those offences, notwithstanding the fact that they are indicative sentences.

117. Thus the total sentence, as I said, is ten years’ imprisonment with a non-parole period of seven and a half years.

118. [CF], do you understand the sentence I have imposed?

119. OFFENDER: I think so.

120. HIS HONOUR: It’s ten years’ imprisonment with a non-parole period of seven and a half years. Those sentences date from the date you came into custody, which was 5 April 2017. Understand that?

121. OFFENDER: I do.

122. HIS HONOUR: Right. Thank you. You're excused.

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Decision last updated: 10 June 2020