R v Dorsett

Case •

[2023] NSWDC 537

•

09 June 2023

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Dorsett [2023] NSWDC 537
Hearing dates: 5 June 2023, 6 June 2023
Decision date: 09 June 2023
Jurisdiction:Criminal
Before: King SC DCJ
Decision:

Indicative sentences:

H664-1 – [JL 2022/00029377/001] - 2 years

H664-4 – [JL 2022/00029377/004] – 2 years, 6 months

H408–1 – [JL 2022/00080450/001] - 2 years, 6 months

H664-6 – [JL 2022/00029377/006] - 2 years, 6 months

H408-3 – [JL 2022/00080450/003] - 2 years, 6 months

H866-1 – [JL 2021/00313238/001] - 9 months

H362-2 – [JL 2021/00313247/002] -

+ Form 1 H362-3 – [JL 2021/00313247/003] 6 years NP 3 years

H362-6 – [JL 2021/00313247/006 ] - 2 years, 6 months

Aggregate sentence:

Special circumstances found – 1st time in custody, need for a very lengthy period on supervised parole to assist him in respect of sexual offending and to return to a law-abiding life in the community.

Sentenced to a term of imprisonment for 10 years comprising a non-parole period of 5 years to commence on 4 November 2021 and to expire on 3 November 2026, upon which date the offender is eligible for release to parole, and a balance of term of 5 years to commence on 4 November 2026 and to expire on 3 November 2031.

Catchwords:

CRIMINAL – sentence - sexual intercourse with a child aged 14 and under 16 years (x 6) – 4 victims - intentionally sexually touch child aged 10yrs & under 16yrs – Form 1 matter – offender aged 21-23 years at time of offending – mild intellectual disability - contextual relevance of uncharged offences – Victim Impact Statements - general and specific deterrence – subjective matters

Legislation Cited:

CrimesAct 1900

Crimes(SentencingProcedure)Act1999

Cases Cited:

Attorney-General’s Application Number 1 of 2002 (2002) NSWCCA 518

Ibornone v R [2017] NSWCCA 144

R v Nelson [2016] NSWCCA 130

Category:Sentence
Parties: Regina
Dorsett, Benjamine
Representation:

Counsel:
Defence: Ms M Cusack

Solicitors:
ODPP: Ms A Mifsud, Ms E Lyte
Defence: Ms T Randall Randall Legal
File Number(s): 2021/00313238 2021/00313247 2022/00080450 2022/00029377
Publication restriction: NPO in respect of the names of the complainants and anything that might tend to identify them.

JUDGMENT

  1. HIS HONOUR: Benjamine Dorsett appears for sentence in respect of a number of offences. There are six offences contrary to s 66C(3) of the Crimes Act 1900. The maximum penalty provided for any offence of that nature is ten years’ imprisonment and there is no relevant standard non-parole period. There is a further charge contrary to s 66DB(a). The maximum penalty in respect of that offence is ten years’ imprisonment and there is no standard non-parole period. There is one offence contrary to s 66C(1) and also another offence of exactly the same nature to be taken into account on a Form 1. The maximum penalty in relation to offences contrary to s 66C(1) of the Crimes Act is 16 years and there is a relevant standard non-parole period of seven years.

  2. I will first refer to the individual offences and when they occurred. There are four victims of the offending. I will anonymise their names.

  3. The first 2 offences are sexual intercourse with a child aged 14 and under 16 years, the victim being AA, 15 years of age. That was between 1 February and 29 February 2020.

  4. The second period was 1 February to 30 March 2020, and the offence is sexual intercourse with a child aged 14 and under 16 years, BB.

  5. The third offending period was between 1 March and 30 April 2020. It is, again, an offence contrary to s 66C(3) of the Crimes Act, in relation again to AA, and there is a further offence in that period in relation to BB.

  6. The next period was 1 January 2021 to 30 April 2021. The offence is contrary to s 66DB(a) of the Crimes Act in respect of CC.

  7. The next period was 1 August to 30 August 2021 in relation to the victim, DD, and that is the offence contrary to s 66C(1) of the Crimes Act, and in relation to which there is also a Form 1 offence to be taken into account.

  8. The last period was 1 October to 30 October 2021, and there is a single offence contrary to s 66C(3) in respect of DD.

  9. The facts are agreed and are as follows:

1. The offender is Benjamine Dorsett, born 4 May 1998, aged 21-23 years at the time of the offending.

2. The victims in this matter are: AA, born August 2004. BB, born June 2004, CC, born June 2008, and DD, born September 2007.

The AA & BB Charges

3. AA was born in August 2004 with female genitalia and identifies as male. He has not undergone any gender reaffirming surgery or procedures.

4. BB was born in June 2004.

5. AA and BB were friends. In early 2020, AA and BB lived together in Port Macquarie. They were both aged 15.

First incident with AA

6. AA met the offender in February 2020 through mutual friends. At that time, the offender was residing with his grandmother in Port Macquarie, and AA was residing with BB in Port Macquarie.

7. The night after AA and the offender first met, they both attended a birthday party for a mutual friend’s 15th birthday. The party was held at the mutual friend’s house. AA and the offender were drinking alcohol that had been purchased by the offender.

8. The offender sat next to AA on the lounge and started to cuddle him. The offender then kissed AA and AA told the offender that he was 15 years of age and a virgin. The two discussed having sex that night.

H 664/1 - sexual intercourse with AA aged 15 years - s 66C(3) Crimes Act - between 1 February and 29 February 2020

9. Later in the evening, the offender and AA went to the bathroom at the party and locked the door. The two started kissing in the bathroom. AA said to the offender, “I’m going to suck your dick.” The offender then pulled down his underwear and exposed his erect penis. AA then bent down and began to suck the offender’s penis with his mouth. This continued for a few minutes.

10. A number of attendees at the party were alerted to the fact that the offender and AA were in the bathroom. They banged on the door and yelled, “What are you doing? He’s only 15 and you’re 21.” AA stopped sucking the offender’s penis. They then exited the bathroom and joined the party.

11. Around ten minutes later, the two left the party and walked alone down to the Town Green, Port Macquarie. The Town Green is an outdoor public picnic area. The offender and AA walked to the disabled toilet in the park and locked the door. The offender and AA had a discussion and agreed to have sex with each other.

H 664/4 - sexual intercourse with AA, aged 15 years - s 66C(3) Crimes Act - between 1 February and 29 February 2020

12. They both removed their clothing and AA lay on the floor of the bathroom. The offender positioned himself between AA’s legs and had penile/ vaginal intercourse with AA. They changed positions several times throughout this incident. The offender did not wear a condom during the sexual intercourse and did not ejaculate. The incident lasted about an hour.

13. AA was aged 15 years and seven or eight months. The offender was aged 21 years and nine or ten months.

Car Park Incident

14. Two weeks after the previous incident, the offender arrived at BB’s and AA’s home. The three started drinking alcohol and became intoxicated. Later that evening, the offender suggested that they go for a walk around town together. BB was intoxicated and was having difficulty walking.

15. AA passed out on the footpath between the courthouse and Port Central Shopping Centre. BB and the offender continued walking. BB lay down on a ramp out the front of the Port Central Shopping Centre. After a short period of time, BB got back up and found the offender at the opposite end of the car park adjoining the shopping centre. BB and the offender started kissing each other while in a standing position.

H 408/1 - sexual intercourse with BB aged 15 years - s 66C(3) Crimes Act - between 1 February and 31 March 2020

16. BB and the offender then lay on the path, with the offender on top of BB. The offender pulled his pants down exposing his erect penis. BB was wearing loose pyjama shorts. The offender pulled BB’s shorts to the side, inserted his penis into her vagina and had penile-vaginal intercourse with her. Whilst having intercourse, the offender placed his hand on the front of BB’s neck, placing pressure on her neck. After a period of time, the offender removed his penis from her vagina, got onto his knees and masturbated until he ejaculated.

17. BB and the offender then got up and walked to find AA. Once they located him, the three walked back to AA and BB’s house.

18. BB was aged 15 years and eight or nine months. The offender was aged 21 years and nine or ten months.

Town Beach Incident

19. There was an occasion when AA and BB went for a drive with the offender, and he drove them to the car park at Town Beach. The offender bought them alcohol and put the backseats down, and the three drank in the boot of his Ford Territory. It was dark and there were no other cars in the car park.

20. AA and BB became intoxicated. The offender encouraged them both to kiss. BB and AA started to kiss and touch each other. The offender alternated kissing BB and AA.

21. The offender then moved his hand inside AA’s pants and started to penetrate his vagina with his fingers. The offender continued to kiss BB as he did this. After a few minutes, the offender then swapped and started to kiss AA while he inserted his fingers inside BB’s vagina.

H 664/ 6 - sexual intercourse with AA aged 15 years - s 66C(3) Crimes Act - between 1 March and 30 April 2020

22. The offender then lay on his back and AA positioned himself on top of the offender with the offender’s penis inserted into his vagina. They had penile-vaginal intercourse.

H 408/3 - sexual intercourse with BB aged 15 years - s 66C(3) of the Crimes Act between 1 March and 30 April 2020

23. The offender then had penile-vaginal intercourse with BB.

24. The offender alternated between having sexual intercourse with AA and BB. The three then fell asleep underneath the blanket. The next morning, the three woke up, the offender drove BB and AA back to their residence and he left.

  1. . AA was aged 15 years and eight months. BB was aged 15 years and 11 months. The offender was aged 21 years and ten or 11 months.

Report to police in March 2020

26. On 30 March 2020, police received a report indicating sexual activity had occurred between the offender and AA.

27. On 1 April 2020, police contacted the offender’s mother and they spoke with the offender. They explained the legal age of consent and the implications if AA were to make a complaint against him.

28. On 3 April 2020, police made contact with AA who declined to be interviewed regarding the matter. AA informed police that he and the offender were friends and not sexually involved.

Move to Laurel Street, Port Macquarie

29. In early May 2020, the offender and AA moved in together. The lease for the unit was in the offender’s name. AA made rental payments. During the time AA and the offender were living together, the offender was visited by his NDIS support worker who observed AA to be living at the address.

  1. . The offender and AA had a relationship that lasted approximately 12 months and involved regular sexual intercourse. The two kept their relationship a secret until AA turned 16 years of age on 20 August 2020.

  2. . Throughout the duration of the charged incidents, AA was aged 15 years and the offender was aged 21 and 22 years.

32. AA and the offender ended their relationship on 25 March 2021.

CC Charges

34. CC was born on 14 June 2008.

35. CC was friends with DD. They both attended the same school. In 2021, DD was in Year 8 and CC was in Year 7.

36. CC met the offender through a mutual friend in early 2021. The following incident occurred whilst AA was still residing with the offender at Lauren Street.

H 866/1 - intentionally touch CC, a child aged 12 - s 66DB(a) Crimes Act – between 1 January 2021 and 30 April 2021 at Port Macquarie

37. On an occasion at the offender’s residence in Laurel Street, the offender and a number of CC’s friends were gathered socialising and drinking alcohol together.

38. CC was sitting down when the accused rubbed her inner thigh and grabbed her bottom over her clothes. When CC was walking from the kitchen into the lounge room, the accused grabbed her breast with his hand. CC looked at him and he let go. The accused repeated the action again and CC told him, “Stop it.” The accused replied, “All right. All right.”, and he stopped. [I note that in the course of submissions, it was accepted that the act relied upon as the sexual touching was the grabbing of the breast.]

39. CC was aged 12 years and six to ten months. The offender was aged 22 years and eight to 11 months.

DD charges

40. DD was born on 23 September 2007.

41. DD was friends with CC. They both attended the same school. DD was in Year 8 and CC was in Year 7 in 2021.

42. Around March 2021, CC introduced DD to the offender. When they first met, the offender asked DD how old she was. DD told him she was 13 years of age.

43. Around August 2021, DD and the offender started texting and Snapchatting. It was around this time CC and DD skipped school to meet up with the offender during the day. The offender would often drive DD and CC around and buy them cigarettes and alcohol. During these car rides, the offender would touch and kiss DD, which was conduct witnessed by CC.

44. On 15, 23 and 27 August 2021 and 3 September 2021, police located DD and the offender in public areas in contravention of public health orders in place at the time. During one of these incidents, police questioned DD about the age gap between herself and the offender. DD insisted they were only friends.

Camping Trip to Wauchope

45. In August 2021, the offender drove CC and DD to a camping area in Wauchope beside the Hastings River. After they arrived, CC and DD went for a swim while the offender set up his tent for the three to sleep in.

46. During the afternoon, CC went for a walk along the river. DD and the offender were lying on some blankets inside the tent. The offender and DD had a discussion about having sex. The offender grabbed DD, pulled her closer to him and began to kiss DD and touch her breasts and thighs.

H 362/2 sexual intercourse with DD, aged 13 years - s 66C(1) Crimes Act - between 1 August and 30 August 2021

47. The offender positioned DD so she was lying on her back and he got on top of her and removed their pants and underwear. The offender inserted his penis into DD’s vagina and had sexual intercourse with her for a period of time. The offender was not wearing a condom. The offender then ceased, kissed DD and said, “Oh, thank you, baby”, and left the tent.

48. The three of them stayed at the location overnight.

Form 1 offence - H 362/3 sexual intercourse with DD aged 13 years - s 66C(1) Crimes Act - between 1 August and 30 August 2021 at Kew

49. The following day, they packed up and the offender drove the girls to a camping ground at Kew. Whilst at the Kew camping ground, the offender had penile-vaginal intercourse with DD.

50. DD was aged 13 years and 11 months. The offender was aged 23 years and three months.

Incident at the grandmother’s house

51. On a date in October 2021, the offender invited DD and CC over to his grandmother’s house in Port Macquarie where he was staying. DD and CC arrived at the house. Shortly afterwards, CC left to attend an appointment.

H 362/6 sexual intercourse with DD aged 14 years - s 66C(3) Crimes Act - between 1 October and 31 October 2021

52. After CC had left, the offender asked DD if she wanted to watch a movie in his bedroom. She agreed. DD and the offender lay on the offender’s bed. After a short period of time, the offender started to cuddle DD. The offender removed his pants and DD’s pants and had penile-vaginal intercourse with her. The offender was not wearing a condom.

53. CC then returned to the residence and told DD that they needed to leave as Headspace wanted to speak to her too. DD and CC left the residence.

54. DD was aged 14 years, one month. The offender was aged 23 years and five months.

Relationship Evidence

55. DD and the offender had sexual intercourse on a number of other occasions.

Investigation

56. On 15 October 2021, the offender attended DD’s home and spent some time with DD’s mother. All parties consumed alcohol over the course of the evening and the offender admitted to DD’s mother that he was in a sexual relationship with her daughter. DD’s mother subsequently reported the matter to police, who commenced an investigation.

57. On 1 November 2021, DD and CC visited the offender at his apartment. CCTV footage captured the three of them entering the foyer and taking the lift at 8pm. The offender was informed that DD was to be interviewed by police the following day. The offender told her to just lie.

58. On 2 November 2021, DD participated in an electronically recorded interview with police.

59. On 3 November 2021, CC participated in an electronically recorded interview with police.

60. On 4 November 2021, the offender was arrested and charged in relation to DD’s and CC’s allegations.

61. On 14 December 2021, AA provided a statement to police. On 1 February 2022, the offender was charged with the matters arising from AA’s allegations.

62. On 15 March 2022, BB provided a statement to police. On 16 March 2022, the offender was charged with the allegations arising from BB.

  1. [I note that I am sentencing the offender only in respect of those offences with which he has been charged, although there is evidence in the facts of other offending on different occasions, or of further offending on an occasion in relation to which there is a charge. The additional evidence of other offending is provided as part of the context to the actual offending, and to demonstrate that the individual offences charged did not occur in isolation. I note by way of example, paras 12, 15, 16, 21, 24, 31, 38, 43, 46 and 55.]

  2. The evidence before the Court indicates that the offender was always aware of the age of the victims and that it was an offence for him to have sexual intercourse or sexually touch them, as referred to in the charges. The offending occurred between 1 February 2020 and 30 October 2021. The first count was one where while he and the victim were in the bathroom, it was made clear to him by other persons outside the bathroom yelling out that the victim was underage and significantly younger than him.

  3. Material before the Court indicates that his mother on occasion informed him that he was having inappropriate relationships with young persons, at least in the sense of the age difference. He was spoken to by police officers on 1 April 2020, who explained to him the legal age of consent (which in fact, on the evidence, he already knew) and the implications of what might happen to him if, in particular, AA made a complaint against him. It is of serious concern that after 1 April 2020, he continued to commit offences, at least in respect of CC and DD, and that he had moved into premises with AA in early May 2020 after being spoken to by the police, and the facts disclose that during the period from early May 2020 until AA turned 16 years of age on 20 August 2020, there was, “regular sexual intercourse.”

  4. On the material before the Court, the offender had an expectation that his offending against AA would not be disclosed by AA, and that he was to some extent upset that AA had in fact eventually disclosed it. After the conclusion of his relationship, or in the latter period of his relationships with AA and BB, he moved on to offending against CC and DD, aged respectively 12 years and 13 years. It causes serious concern that the offender, knowing that he was committing offences, having been informed clearly of the seriousness of such offending - that despite all of those things being known to him, he continued to commit criminal offences of a like nature, moving on to younger victims. That is particularly relevant for the prospects of reoffending and rehabilitation, which I will deal with later.

  1. In the circumstances, as outlined in the facts, I regard all the offences as being of a serious nature, with of course the sexual touching being the least serious of all of the offences, particularly in the circumstances where he desisted when told to. The offending ranged between fellatio with AA and otherwise penile-vaginal intercourse, on some occasions in the absence, as indicated in the facts, of a condom, such as H 664/4 in relation to AA and H 362/2 in relation to DD and H 362/6 in relation to DD. Some of the other individual offences do not specify whether a condom was in use or not.

  2. I note that Victim Impact Statements have been provided by DD and CC. There is no Victim Impact Statement from AA or BB. The Victim Impact Statements that have been provided indicate the effects on the victims of the offender’s offending. While the impact is individually significant, it is in each case entirely within the realm of what might be expected as the usual consequences of an underage person being engaged in sexual activity before they have reached an appropriate age. With the exception of the sexual touching offence, all the other offences can be reasonably referred to as being not opposed. Consent is, of course, not relevant to any of those charges. A lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. In R v Nelson [2016] NSWCCA 130, it was stated:

“The Courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.”

  1. I note that having perused the Victim Impact Statements from CC and DD, those comments appear to be entirely apposite. While I do not have a Victim Impact Statement from AA or BB, I have no doubt that the offending against them as they mature will have a significant impact of an adverse nature on them. How long that might continue for will depend on what assistance they obtain to deal with it, but it is not unusual in relation to offending of this nature for the effect on the victim to last for years, if not for the remainder of their life, particularly in relation to their ability to relate to other persons and particularly males.

Subjective Matters

  1. The offender at the time of the offending was aged between 21 and 23. He is now some 25 years of age. He was arrested on 4 November 2021 and has been in custody since that date and only in respect of these matters. Accordingly, he is entitled to a 25% discount for the utility of the plea alone and such a discount has been provided. In relation to subjective matters, the offender did not give evidence on sentence, and subjective matters must be drawn from the material provided otherwise. That includes, of course, untested out of court statements made to third parties which must be treated with caution as referred to in Ibornone v R [2017] NSWCCA 144 at [57] where particular statements from various cases derived from the authorities are set out.

  2. Otherwise, the Court has available the offender’s criminal history which indicates that in November 2020, he was dealt with for an offence of drive motor vehicle while licence suspended and received a Conditional Release Order of 12 months without a conviction. In view of that, the offender has no previous criminal history that is of relevance to determining the sentence or sentences in respect of these matters.

  3. Having been in custody since the date of his arrest, I note that the New South Wales Department of Corrective Services Convictions, Sentence and Appeals Report indicates that he has no record of offending against prison regulations.

  4. The defence relies upon the report of Dr Sally McSwiggan, dated 30 May 2023; the report of Dr Jim Kerr, paediatrician, dated 13 May 2014; the report of Karen Stevens from Freedom of Speech, dated 23 October 2014; the reports of Dr Brian Parsonage, dated 11 and 22 July 2019 and 3 March 2021; an NDIS plan approval, dated 31 May 2021 and a further NDIS plan approval dated 17 May 2022; the report of Christina Watts of the Hastings Mobile Rehab, dated 3 August 2021; the report of Dr Eric Carrasco, dated 7 January 2022; the affidavit of the offender’s mother, dated 31 May 2023, and a report from Angie Dellow of Hummingbird Services dated 29 May 2023. Subjective matters are drawn from that material.

  5. The offender is a 25-year-old indigenous person. While housed at the Clarence Correctional Centre in protection, he has had ongoing support from his mother and grandmother, who offer prosocial support and values. In custody, he commenced working as a sweeper before moving to laundry and then to grounds maintenance. He is said to have had a good relationship with custodial staff, and as already noted, not incurred any significant institutional misconduct. He has apparently lost a considerable amount of weight while in custody through diet and exercise and was pleased with that as a personal achievement.

  6. He has commenced some study within the gaol to improve his skills in writing and maths, such as learning how to write an essay, although as yet he has been unsuccessful in learning that skill. He described being in protection as difficult at times, given the sexualised content of interactions between other offenders in the pod. However, he recognised that sexualised conversations were morally wrong, and he actively distanced himself from the others.

  7. He has in custody commenced individualised psychology sessions with a Community Corrections psychologist and he reports a positive therapeutic relationship with her. He accepts that he will be in custody for a period of time and is planning to use that time positively by studying, exercising and working. His work while in custody is in fact his first experience of employment, and it has inspired him to want to continue to be employed when released, to make a contribution to the community and not live solely on a disability pension without any daily structure, as he was doing at the time of the offending.

  8. He is the second youngest of four siblings with two brothers and a sister. He lived with his father from ten years of age to 18 years of age. His father was physically and sexually abusive towards his mother and siblings, and he was the subject of physical, sexual and emotional abuse while he lived with his father. That appears to relate directly to his father’s partner’s older children - two boys - engaging him in sexual activity from the age of ten years, such activity eventually including penile penetration. He ceased contact with his father some four years ago.

  9. He was placed in the learning support unit at the Port Macquarie Primary School, and he transitioned to high school and completed his HSC on a modified program. After leaving school, he has failed to gain any employment, although he has since gained a driver’s licence. After leaving his father, he has had various places of accommodation, but his relationships and personal and support services have broken down and he eventually returned to live at his grandmother’s. He is not married and has no dependants. He has no physical problems or ailments and no history of psychiatric hospitalisation or psychiatric medication. He has indulged in some social use of cannabis and alcohol, but he has no significant history of abuse of substances, although at the time of the offending he is said to have been drinking reasonably heavily. He does not relate that drinking to his offending.

  10. Dr Kerr, paediatrician, in his report of 13 May 2014, diagnosed the offender at 16 years of age as suffering a mild intellectual disability, attention deficit hyperactivity disorder, conduct disorder and obesity, for which he was then thereafter receiving treatment. The speech pathologist, Karen Stevens, in her report of 23 October 2014, tested him and found that he met the criteria for moderate to severe expressive and receptive language disorder and that he required assistance with literacy and simplified language for comprehension.

  11. The three reports of Dr Parsonage of 11 and 22 July 2019 and 3 March 2021, which were prepared in relation to a civil claim arising from a car accident when he was 21 years of age and already a NDIS recipient, made no finding of mental illness or disorder but found that the offender was incapable of fully understanding the complexity of the civil case and that he would be unable to manage any funds he was awarded as a result of the proceedings.

  12. The NDIS plan approvals of 31 May 2021 and 17 May 2022 indicated that he was approved to receive funding to assist with his level of Adaptive Functioning.

  13. Christina Watts, an occupational therapist, in her report of 3 August 2021, obtained information from the offender’s mother, being a comprehensive Adaptive Behaviour Scale where he was demonstrated to be below most of his peers in practical use of academics (6%) and practical skills for life (4%) and social skills (12%). He was at the time then receiving 20 hours of formal support a week, although his apartment was reported to be in squalor.

  14. Dr Carrasco, psychologist, in his report of 17 January 2022, referred to the offender as having a childhood onset complex trauma of neglect and abuse, and moderate to severe levels of anxiety and depression with a history of self-harm and suicidality without plan or intent. He found that he presented with significant delays in social and interpersonal skills and that he did not maintain age-appropriate friendships, and that although he had received post-school support to transition into the workforce, he was not able to maintain secure employment. Although he had obtained some employment in supervised support work, he required frequent supervision with prompting and reminding him of what he was meant to do and was at the time receiving disability support from New Horizons and Kirrinari Services.

  15. Dr Carrasco found that on a comprehensive intellectual assessment, intellectual disability was not supported, and the offender was found to be in the low average general intelligence range with high average visual perceptual problem-solving skills, although he had significant weaknesses in language and short-term working memory that contributed to learning delays and his language and working memory skills were in the borderline disability range.

  16. An Adaptive Functional Assessment found very low life skills with below average social adaption. Dr Carrasco considered that he had a specific learning disorder, and at the time he was then receiving two hours of support for five days a week through the NDIS. The NDIS recommendations included support with daily lifestyle needs, work/educational opportunities, social health and financial support and allied health supports to enhance his language skills, build age-appropriate social interpersonal skills and develop emotional regulation and better coping strategies.

  17. He was found to not be globally intellectually impaired, but rather his language had failed to develop at the same rate as his cognitive skills, impacting on his academic achievement and rates of life skill maturation. He had below age-appropriate levels of adaptive functioning and he was found to meet the criteria for Mild Intellectual Disability.

  18. Dr McSwiggan opined:

“Mr Dorsett fulfils criteria for a paraphilic disorder, namely Paedophilic Disorder non-exclusive type (meaning not only attracted to children 13 years and under) and sexually attracted to females based on sexual activity with a prepubescent female (13 years and under) and the range of age difference (>five years).”

  1. In her report, she outlines that he was aware of the age of consent and that he was committing criminal offences at the material times. During her interview with him, he expressed concern for the complainant’s psychological wellbeing. She noted that his conditions are developmental and not able to be treated, although he could possibly improve on his adaptive functioning skills with education and training. She opined that his mild intellectual disability reduced the likelihood of his being accepted by same age peers, given their intellectual superiority, and that this made him vulnerable to engaging socially with younger persons and accordingly, vulnerable in engaging with those young people when seeking a sexual relationship.

“Mr Dorsett reported he identifies as ‘pan-sexual’ which he describes as being sexually attracted to a “personality” rather than a particular gender. This would mean he has sexual interests in males and females, increasing his cohort of victims…Mr Dorsett’s mild intellectual disability means he will struggle to make friendships in protection. I note, however, that many offenders have low intellectual abilities. He appears to have no issue with following custodial rules and has not had any personal issues or clashes with the other inmates that he reported. He has decided to isolate himself by choice to focus on his self‑improvement goals.”

  1. I note that on initially perusing the material in this matter, I suspected that the offender would not do well in custody. However, that assessment appears to be entirely incorrect. The offender was residing in a structured environment in the community with the support of his mother and grandmother and also with the support of NDIS, which was providing structure and assistance in circumstances where he would have difficulty otherwise. Being in custody appears to have provided him with a stable and known environment where he can in fact function without having to be concerned with the daily life stresses of work and finding funding to support himself.

  2. It appears that being in custody is in fact something that suits him, and while in custody, he is making efforts to improve himself both physically and mentally. The extent to which he can achieve improvement is of course unknown at present, but he will of course always remain with a mild intellectual disability. In my view, considering those circumstances, although this is the offender’s first time in custody, there is a risk that he will become institutionalised to some extent because his time in custody will by comparison with his life when not in custody, appear beneficial to him.

  3. Dr McSwiggan indicated that he had expressed his regret and remorse around his offending. She does not, however, indicate exactly how that was expressed rather than the conclusion she reached. She went on to say:

“His capacity to identify with his victims and the impact of his offending was still developing, likely due in large degree by his developmentally delayed maturation, despite his awareness of his unlawful actions. He has limited self-awareness of his poor choice of younger peers to fulfil his social and sexual needs, secondary to the difficulties he has with intimate and non-intimate relations with same age peers.”

  1. I note the offender has been on a support pension since 2015. His mother indicates that he has the tendency to think of the next five minutes in life and not beyond that. She describes him as impulsive, although she also describes him as having one of the biggest and kindest hearts she has ever seen, always prepared to lend a hand and in circumstances where his friends frequently take advantage of him, particularly in relation to lending them money or doing such things as subscribing to mobile phone plans in his name for them. What money he has is in fact managed by the New South Wales Trustee and Guardian. She states:

“I was aware that Ben was starting to socialise with younger people, and I spoke to him about that on a number of occasions at that time and in particular stressing that it wasn’t appropriate, but I seemed to be unable to get through to him the appropriateness of that conduct.”

  1. She otherwise indicates her continuing support.

  2. Angie Dellow of Hummingbird Services indicates that his current NDIS package includes support for a speech therapist and psychologist and that that support is being provided by way of audio-visual link to the Clarence Correctional Centre. He apparently has a disability support worker who has regular contact with him via video and face to face. She states that when he is released from the correctional centre, she will continue to liaise with NDIS and ensure that a plan is obtained that is relative and reflective of his support needs. She states:

“Since being incarcerated, I have observed Benjamine taking ownership of his well-being and positively embracing routines.”

  1. In addition to all of that material, the Court has a Sentencing Assessment Report under the hand of Amber Jeffery who notes the ongoing support of his family and that it is prosocial support. Under “Attitude” she has recorded:

“Mr Dorsett claimed attitudes of remorse, however, mixed this with self‑concern, rationalisation and normalisation of his actions, disclosing being, ‘sexually attracted’ to younger people…he demonstrated a rejection of societal values and moral standards through his statement that he was aware of the ages of the victims. Furthermore, he said he was exceptionally hurt over one of the victims coming forward, as they had an agreement to, ‘never tell anyone.’”

  1. He had stated to her that at the time of his offending, his primary social interactions were with children aged 12 to 16 years of age and that he had befriended a cohort of vulnerable young people who were marginalised through dysregulated home lives or struggling with sexual identity. And although he referred to consuming alcohol daily often to the point of blackout at the time of the offending, he did not relate that to his offending behaviour.

  2. Ms Jeffery opined that:

“There appear to be elements of both opportunistic abuse and planned grooming.”

  1. That is particularly relevant in relation to the latter two victims where he was collecting them from school, it would appear, during the time that they were supposed to be attending at school, to drive them around and supply them with cigarettes and/or alcohol. He had a similar relationship with both AA and BB. I accept that there is an element of planned grooming, but the individual offences were, when committed, relatively opportunistic. The offender appears to have endeavoured to create close relationships with particular young females, and I accept that this was in circumstances where he would have had difficulty in forming close relationships with individuals of his own age bracket. He was assessed as being at an average risk of sexual reoffending.

  2. In addition to the offender’s ongoing developmental problems it has long been recognised that most males do not fully mature until their mid-twenties and with his longstanding difficulties continuing into the future when and to what extent he might fully mature is not determinable.

  3. Alexander Kranez, senior psychologist with Community Corrections, provided a structured case note finding that his actuarial risk was assessed as falling in the average risk range. As for the prospect of any appropriate intervention while in custody, he opined that, having applied the technical criteria of the Sex Offender Programs Most Appropriate Program, Pathway, that the offender’s score on Static-99R deemed him ineligible for custody-based programs. It would appear that he is not likely to receive any significant assistance in that regard while in custody. It is more probable that he can receive assistance in that regard while on parole.

  4. Ms Jeffery opined that he now understood the legal implications of his actions, but stated:

“Despite being given multiple opportunities throughout assessment, Mr Dorsett displayed minimal insight into his offending. He expressed remorse at any emotional hurt he may have hurt caused his victims, however failed to identify the implications of his actions.”

  1. I accept that the offender has had a difficult childhood, particularly while residing with his father and half-brothers. I accept that his intellectual limitations have created ongoing problems for him and that those intellectual limitations can never be resolved. The offender is likely to always require, in my view, support from NDIS or charitable organisations concerned with supplying assistance to persons like the offender. I accept that he is at average risk of reoffending, particularly in the circumstances as previously outlined, as to his always being aware that he was committing offences and continuing to commit offences even when spoken to directly by police to ensure that he was aware of the possible consequences.

  2. Even when he was finally arrested, it appears that he failed to really appreciate what he was doing, even though all of those matters I have referred to had occurred. He disclosed to the mother of DD that he was in fact in a sexual relationship with her daughter, and it was when she reported the matter to the police that they were finally able to act when they obtained information from DD and CC, and of course that caused them to go back to AA and BB.

  3. It causes serious concern that in those circumstances, the offender continued to commit offences. The prospect of rehabilitation is of course affected by the fact that he has been diagnosed by Dr McSwiggan as suffering from:

“A paraphilic disorder, namely Paedophilic Disorder, non-exclusive type (meaning not only attracted to children 13 years and under) and sexually attracted to females based on sexual activity with a prepubescent female (13 years and under) and the range of age difference (>five years).”

  1. In my experience, paraphilic disorders, however they might be specifically defined, are extremely difficult to treat, which means that specific deterrence is particularly important in relation to this offender. I accept that his past history, as previously outlined, allows for some reduction in penalty on the basis of a lower moral culpability than might be the case otherwise, even though he always knew that he was committing offences. In my view, he was particularly vulnerable where it was relatively inevitable that he would associate with underage juveniles, considering his limitations.

  2. Although the offender was subject to a Conditional Release Order of 12 months imposed on 26 November 2020 at Port Macquarie for the offence of drive whilst disqualified, I do not regard it as having any relevance in relation to determining the appropriate sentence.

  3. At least up until the first offence with which he is charged, he could be regarded as a person having been to that stage of good character. However, there is now a period from 1 February 2020 through to 30 October 2021 in relation to which he was committing offences on an ongoing basis in relation to four separate complainants, ranging in age from 12 to 15, at various times, at various locations and the facts disclose a significant number of uncharged acts, which of course I am not sentencing him for but which are relevant to such issues as the prospects of rehabilitation and remorse in the circumstances of his having ignored the advice and information provided.

  4. There is at least some indication of remorse, but the offender elected not to give evidence on sentence and so the only information in relation to remorse is from second hand statements. I will accept that there is some evidence of remorse, although I indicate that I do not find it is particularly strong in the light of the ongoing offending of a repeated nature.

  5. I accept, although no submission has been made in respect of it, but the offender has been in custody not only in protection, but during the course of the COVID lockdown, which has created significant problems for prisoners and their families in relation to being able to have ongoing contact with their loved ones from the community. I accept that the offender has been subject to a harsher form of custodial internment as a result of COVID-19, even though no submissions have been made in that respect, and no information as to any particular lockdowns has been provided to the Court.

  6. For the purposes of sentencing, I must have regard to s 3 of the Crimes (Sentencing Procedure) Act 1999 and take into account such as the aggravating factors and mitigating factors as set out in s 21A(2) and (3). I have referred to the relevant matters in the course of expressing my reasons. I have determined the sentence in accordance with s 25AA(1) and with regard to the trauma of sexual abuse caused to children in accordance with s 25AA(3) of the Act.

  7. Any sentence imposed must reflect the objective seriousness of the individual offence, and I must fix a sentence which will ensure that the time the offender must spend in custody reflects all the circumstances of the offences, including their objective seriousness as well as the need for general deterrence and specific deterrence. In this matter, specific deterrence is a significant factor to take into account, as I have already referred to.

  8. In my view, the offender is not a good vehicle for the expression of general deterrence, considering his personal limitations. However, a substantial sentence must be imposed, considering the period of time over which the offending occurred and the circumstances in which it occurred, and that it was in relation to four separate victims who were all children.

  9. I have taken into account all those matters, and I intend to proceed by way of an aggregate sentence, so I am required to provide an indicative sentence in relation to each individual offence charged. The indicative sentences are as follows:

1. H 664/sequence 1, s 66C(3) of the Crimes Act, sexual intercourse, child aged 14 and under 16, AA 15 years of age. Indicative sentence is two years.

2. H 664/sequence 4, AA, 15 years of age, sexual intercourse, child aged 14 and under 16 years. Section 66C(3): indicative sentence - two years, six months.

3. H 408/sequence 1, sexual intercourse, child aged 14 and under 16 years. BB, 15 years of age. Section 66C(3) of the Crimes Act. Indicative sentence: two years, six months.

4. H 664/sequence 6, sexual intercourse, AA 15 years of age, s 66C(3) Crimes Act, indicative sentence: two years, six months.

5. H 408/sequence 3, sexual intercourse, child aged 14 and under 16. BB, 15 years. Section 66C(3). Indicative sentence, two years, six months.

6. H 866/sequence 1, CC, 12 years. Intentionally sexually touch child aged 12 and under 16 years. Section 66DB(a). Indicative sentence: nine months.

7. H 362/sequence 2. DB, 13 years. Sexual intercourse, child aged ten and under 14 years. Section 66C(1) Crimes Act. Also taking into account the Form 1 offence attaching to it, being H362/sequence 3, being a further offence contrary to s 66C(1) in relation to DD. The matter on the Form 1 has been taken into account by giving additional weight to the principles of specific deterrence and retribution in accordance with the well-established authority, Attorney-General’s Application Number 1 of 2002 (2002) NSWCCA 518. The indicative sentence is six years, and I have found special circumstances warranting a reduction of the non-parole period from the standard relationship to 50% of the head sentence, that is, a non-parole period of three years.

8. H362/sequence 6. In relation to DD, 14 years of age, contrary to s 66C(3) of the Crimes Act. The indicative sentence is two years, six months.

  1. The aggregate sentence, having found special circumstances warranted, in my view, to ensure that the offender has a significant period on parole to assist him as much as possible in relation to sexual offending and returning to a law-abiding life in the community, the non-parole period will be a period of five years and the total term of the sentence is ten years. The sentence will date from 4 November 2021 when he first went into custody in relation to these matters, and the non-parole period will expire on 3 November 2026. The total term of ten years will expire on 3 November 2031.

  2. In my view, a very lengthy period on parole is necessary, considering the offender’s limitations, and my view that there will be a significant need for ongoing assistance, particularly in relation to providing assistance in respect of sexual offending once released, considering the expectation that he will not receive much assistance while in custody in that respect, as referred to in the reports, and in addition, of course, this is the offender’s first time in custody, and I have also taken into account that that may assist in avoiding any risk of institutionalisation, although I do regard that as a real risk in his circumstances, even though it is the first time in custody.

  3. HIS HONOUR: The total term of imprisonment will expire on 3 November 2031, for anyone who can’t add ten years to 4 November 2021.

LYTE: I think your Honour already said that anyway.

HIS HONOUR: I will adjourn. There’s no need to remain online. Sorry, I should say this, Mr Dorsett, whether you are released at the earliest opportunity, which is of course, as I have said, 3 November 2026 when you will first be eligible for parole, will depend on your conduct while in custody. So far, I note that you have been perhaps an exemplary prisoner. You have managed to obtain work in various areas within the prison, you’re making efforts to educate yourself and it is important that you continue to make such ongoing endeavours and to comply with prison regulations because when you first become eligible for parole, your conduct in custody will be relevant to whether the authorities feel it is desirable to release you at that time. They can in fact continue to retain you in custody after the expiry of the non-parole period. So, please, make every effort. You seem to have been doing exceptionally well so far. Please make every effort to make sure they let you out at the earliest date and you may then be able to obtain more reasonably the assistance you really require, because your attraction to underage males and/or females is not likely to be resolved by your period of time in custody and you will need ongoing help in that regard. It’s up to you, really, Mr Dorsett. Thank you.

OFFENDER: Thank you.

AUDIO VISUAL LINK CONCLUDED AT 11.52AM

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Amendments

09 July 2024 - "Benjamin" corrected to "Benjamine" throughout judgment.

Decision last updated: 09 July 2024

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Cases Citing This Decision

1

Dorsett v The King [2024] NSWCCA 192
Cases Cited

2

Statutory Material Cited

2

Imbornone v R [2017] NSWCCA 144
R v Nelson [2016] NSWCCA 130