R v Eldridge

[2022] NSWDC 621

District Court

New South Wales

Medium Neutral Citation:

R v Eldridge [2022] NSWDC 621

Hearing dates:

23 September 2022 and 18 November 2022

Date of orders:

9 December 2022

Decision date:

09 December 2022

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1) In respect of the offences to which the offender has pleaded guilty, the offender is convicted.

(2) I impose an aggregate sentence of imprisonment for 3 years and 6 months to date from 18 October 2021 and to expire on 17 April 2025.

(3) I impose a non-parole period of 2 years to date from 18 October 2021 and expiring on 17 October 2023.

(4) The earliest date the offender is eligible to be released to parole is 17 October 2023.

Catchwords:

CRIME – sentencing - sexual intercourse with a child of or above the age of 14 years and under the age of 16 years

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A (2), 53A

Crimes Act 1900 (NSW), s 66C (3)

Cases Cited:

Aslan v R [2014] NSWCCA 114

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Franklin v R [2013] NSWCCA 122

R v AJP (2004) A Crim R 575

R v Burchell (1987) 34 A Crim R 148

R v Gavel [2014] NSWCCA 56

R v Hudson (unrep, NSWCCA 30/7/1998)

R v King [2009] NSWCCA 117

R v Lulham [2016] NSWCCA 287

R v Sea (unrep, 13/8/1990, NSWCCA)

R v Wright [2017] NSWCCA 102

Category:

Sentence

Parties:

Rex
Kaileb Eldridge

Representation:

Counsel:
B Walker (Offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Walker Criminal Lawyers (Offender)

File Number(s):

2021/296219

Publication restriction:

There is to be no publication of a name that identifies or is likely to lead to the identification of the complainant.

JUDGMENT

Remarks on sentence

1. The offender appeared at the Central Local Court on 30 June 2022 and pleaded guilty to two charges, namely two counts of have sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years, contrary to s 66C (3) of the Crimes Act 1900 (NSW). The pleas of guilty were adhered to at the sentence hearings on 23 September 2022 and 18 November 2022.

2. The maximum penalty for the offence of having sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years is 10 years imprisonment.

3. Admitted on behalf of the Crown was the following:

1. Notice of Committal (Ex C1)

2. Charge certificate and CANs (Ex C2)

3. Agreed facts signed by offender (Ex C3)

4. Criminal History (Ex C4)

5. Victim Impact Statement of the complainant dated 7 September 2022 (Ex C5)

6. Custodial History (Ex C6)

7. Sentencing assessment report dated 10 November 2022 (Ex C7)

8. The case note report dated 25 August 2022 (Ex C8)

9. Facts sheet in respect to the previous offence in relation to CAN H 65671485 (Ex C9)

4. Admitted on behalf of the offender was the following:

1. Letter from Anita Pesa dated 5 September 2022 (Ex O1)

2. Letter from Kylie Eirth dated 4 September 2022 (Ex O2)

3. Letter from Sarah Eldridge dated 23 September 2022 (Ex O3)

4. Redacted psychological evaluation of Mr Istvan Schreiner dated 18 September 2022 (Ex O4)

5. Letter from Steven Warwood dated 21 September 2022 (Ex O5)

5. In determining the appropriate sentence, I acknowledge that I am involved in a one-step process in which it is necessary to have regard to all of the relevant facts and circumstances as are known to the Court including the facts surrounding the commission of the offences, those matters affecting its relative seriousness and the offender’s subjective circumstances.

Agreed facts

6. At the time of the offending the offender was 24 and the victim was 14.

7. On the afternoon of 15 October 2021, the offender, using the Snapchat handle, sent the victim a friend request which was accepted. A conversation thereafter ensued during which the offender told the victim he was 18 years old, and the victim stated she was 14 “but basically nearly 15". Photographs were exchanged including the offender sending a photograph to the victim of his penis.

8. The offender and the victim agreed to meet in person at Sutherland the following afternoon.

9. At 12:46pm the following day (16 October 2021) the victim caught a train from Engadine to Sutherland, staying in contact with the offender in the meantime. The offender collected the victim by car from the train station following which the offender started pointing out places they could have sex such as parks and ovals.

10. The offender passed a park next to the victim's house and they walked into the bush. The offender took his pants down and pushed the victim's shoulders down gently, so she was on her knees, inserting his penis into her mouth. The victim asked the offender to film the act. The video, lasting 3 minutes 44 seconds, was subsequently viewed by police.

11. In the video the victim stands up and, at the offender's request, turns around to face the offender who pulled the victim’s pants and underwear down to her ankles. The offender used his right hand to rub the victim’s vagina in a circular motion, using two fingers which were inserted past her labia. The offender then told the victim to turn around and bend over. The offender removed his fingers from her vagina and rubbed his penis. After further conversation the offender again inserted his fingers into the victim’s vagina and made an observation that the victim was “really tight". At the offender's suggestion, the victim turned so that her back was to the offender and got on the ground on her hands and knees. The offender stepped towards her and inserted his fingers into her vagina on two occasions. The offender subsequently tried to put his penis into the victim’s vagina but was unable to do so.

12. The victim and offender then drove to the victim's home and went to a veranda which was relatively private, backing onto bush and looking over a yard. At the offender's direction, the victim took off her shoes, jeans and underwear and raised her legs. The offender then inserted his penis into the victim’s vagina for several minutes and ejaculated inside her vagina whilst not wearing any protection. The victim took a short video of the offender during this incident which, lasting 14 seconds, was subsequently viewed by police. The video showed the victim on a lounge on a veranda on her back with both legs in the air and knees around her head. The victim was naked from the waist down and the offender was kneeling on the floor in front of the lounge and was shown inserting his penis into the victim’s vagina, engaging in penile/vaginal intercourse. The offender is heard to say “I’m worried of getting close with how tight you are" to which the victim did not respond.

13. After the offender left, the victim subsequently contacted friends and one of the friends told her mother. As a consequence, the victim reported the matter to police and was subsequently examined at Randwick Children's Hospital. The offender's DNA was identified on underwear belonging to the victim.

14. During an interview with police the victim stated that whilst the offender was discussing different places to have sex, she felt uncomfortable and scared. She was similarly scared when the offender parked the car and walked into the bush. She stated that she filmed the sexual act on her phone under excuse of it being "hot" so she would have proof of what happened. The victim stated she didn’t know what to do because the offender was an adult and bigger than her. When the offender was trying to put his penis into the victim but could not do so the victim stated that she could feel it and didn't like it. In relation to the sexual intercourse on the couch, the victim stated that she did whatever the offender said as she was scared. It was the offender that suggested to the victim that she attend her house from the bushes and said that he would meet her there in a few minutes, so it did not look suspicious.

15. The offender was arrested on the evening of 18 October, cautioned, and conveyed to Springwood Police Station. The offender participated in the electronic record of interview during which he admitted to committing the offences.

The ERISP

16. The offender admitted that he had met the victim randomly on Snapchat and that she had stated she was 15. A conversation ensued of a sexual nature and the offender alleged that it was the victim who asked to meet him. The offender admitted that he had picked up the victim in his car and that it was the victim who mentioned something about sex. The offender claimed that he said they would only do “feet stuff” as she was 15. The victim responded that she was actually 17. When the accused asked for identification, the victim said she didn't carry any. The offender alleged that the victim had told him that her parents were not home and for this reason they drove to Engadine. When parked outside the front of her house the victim said that he could not follow her into the house because if the neighbour saw they would call her father. The offender agreed that the victim looked like she was 15 although accepted her explanation that she was 17 and didn't carry identification. The offender claimed that he told the victim a number of times “we don't have to do this if you don't want to" to which the victim replied, “no I want to do it because I want to get it on video".

Subjective material

O1 – Letter from Anita Pesa dated 5 September 2022

17. A reference has been provided by Anita Pesa, a children and families community development officer with Canterbury Council, who has known the offender and his family for a period of 20 years. The offender and Ms Pesa’s daughter attended school together and also played in the same mixed soccer team. One year, Ms Pesa coached the soccer team and observed the offender to “renounce" inequity and discrimination, proudly supporting players regardless of race, sex or ability. He also showed a respectful attitude towards organisers, referees and the opposition. Whilst the interests of the respective children meant that they grew apart to some extent, they continued to “share a warmth and care for each other”. Ms Pesa observed that the offender was a kind, gentle person that was generous and supportive of others, especially those who for whatever reason, had less than himself.

18. The reference was provided in full knowledge that the offender was pleading guilty to having sex with a child aged 14. Ms Pesa notes that it has been a difficult time for the whole family since the offender’s arrest.

O2 – Letter from Kylie Eirth dated 4 September 2022

19. A reference has also been provided by the offender’s godmother, Kylie Eirth who confirmed that she had been involved in the offender’s life for a period of 25 years. The reference was written in knowledge that the offender was facing charges of having sex with a minor of 14 years which struck Ms Eirth as being “completely uncharacteristic". Having spoken to the offender in respect to the charges, it was apparent that it had been a source of intense embarrassment and sincere regret and remorse. The offender had apparently taken full responsibility for his transgressions as a consequence of the plea of guilty. Ms Eirth stated that she has visited the offender whilst in custody on numerous occasions as well as video contact most weekends. She states personally from the conversations that the offender was working towards moving on so he could make a positive contribution to society and to “repair" the damage and impact on his future and family.

O3 – Letter from Sarah Eldridge

20. A reference has been provided by the offender’s mother, Sarah Eldridge, who is aware of the offender’s charges. Ms Eldridge has confirmed that the offender will reside with her at her Tahmoor address, and that she will enlist the help he needs, and support him upon his eventual release.

O4 – Psychological evaluation of Istvan Schreiner dated 18 September 2022 – Withdrawn and replaced with redacted copy on 18 November 2022

21. The offender relies on a psychological report completed by Istvan Scheriner following two audio-visual consultations. The offender reported that since his arrest he had felt emotionally down, and it had taken him approximately two months to adjust to being in custody. The offender reported often suffering low mood and was predominately reporting cognitive and emotional symptoms such as negative thoughts, pessimism, hopelessness, and subjective feelings of sadness.

22. The offender reported that he was the older of two siblings with a younger sister. He was raised in a relatively protected environment and was not allowed to be independent until his late teenage years. He had had two long-term relationships and several short-term casual relationships. At around the age of 18 or 19 he had started to distance himself from his family.

23. The offender completed year 12 but did not sit HSC examinations. He completed an apprenticeship in glazing and glass fitting before transitioning into the transport industry. The offender was working as a truck driver at the time of the offending.

24. The offender reported that before his arrest he was addicted to steroids which at times were sourced through associates at the gym he attended.

25. The offender reported that he had suffered from depression at the age of 16 years following medication for acne. He also reported suffering from anxiety. The offender reported excessive alcohol use between the ages of 18 and 21 although since the age of 21 he had reduced his alcohol use. He also reported intermittent cannabis use which he ceased at the age of 19, although returned to cannabis use at the age of 24 during a romantic relationship.

26. On psychological testing the offender returned a severely elevated result for depression, although normal results were returned on anxiety and stress. On the Beck Depression Inventory, the offender achieved a score placing him in the severely elevated range.

27. Based on the offender’s history, presentation, and assessment results, it was evident that he suffered from recurring depressive symptoms in the past. Mr Schreiner was of the opinion that characteristics of the offender, with respect to this diagnosis, could lead to acting impulsively and making poor decisions. Mr Schreiner believed that the offender would benefit from ongoing cognitive behavioural therapy based treatment for depression and symptoms of anxiety.

28. Mr Schreiner observed that the offender accepted full responsibility for his actions, and he did not attempt to attribute blame to anyone else or to other factors, such as mental health issues or drug addiction for his offending behaviour.

O5 – Letter from Steven Warwood

29. The offender further relies upon a reference provided by his former employer, Steven Warwood. Up until the time of his arrest, the offender had been working for Mr Warwood in the capacity of a truck driver, having initially started as a truck offsider. Mr Warwood described the offender as a hard-working and invaluable employee who was an asset to the team. The offender’s arrest and subsequent custody has resulted in the loss of a key employee, at a time when the effects of the COVID-19 pandemic had made it increasingly difficult to find and hire skilled workers. Mr Warwood confirmed that he would welcome the offender back into a position of employment upon his eventual release, and that his reemployment would mean the company was gaining an experienced and reliable employee.

Offender’s evidence - 18 November 2022

30. The offender gave evidence on the sentence hearing. The offender’s understanding of his psychological assessment was that he had been diagnosed with depression and had since sought help for his mental health issues through the nurses whilst in custody. However, he was still awaiting treatment. Upon his eventual release, the offender intended to seek treatment for his diagnosis.

31. When asked how he felt about his offending, the offender said that he did not feel very good, and that when reading the fact sheet, and knowing what he had done, he realised he had hurt himself, the victim and others. He had thought about his behaviour during his time in custody and, knowing what he had done, and what he had put the victim through, claimed to look at himself in disgust.

32. The offender claimed to have turned his life around during his time in custody, stating that he now calls himself a Buddhist, has lost close to 50kg, is a lot healthier and cleaner, has stopped eating red meat and has started meditation. The offender spoke with the Chaplin in custody who has allegedly provided him with approximately 10 books about Buddhism, from which the offender has learnt Buddhist deeds and pre-sets such as no verbal misconduct and no sexual misconduct. The offender explained to the Court that these deeds and pre-sets are similar in function to the commandments in Christianity.

33. Upon his eventual release from custody, the offender intends to become a vegetarian and continue practising Buddhism by attending the Buddhist centre located near his home. The offender told the court that Buddhism has turned him into a more relaxed, and a better person. He further cited the pre-set of no sexual misconduct, which he claims deals directly with the offence.

34. Upon his eventual release, the offender will live in Tahmoor with his mother and sister and plans to return to his prior occupation of truck driving. The offender also expressed interest in getting involved in personal fitness and training.

35. The offender told the court that he is ashamed of his actions, is sorry for the stress he has caused the victim and hopes that the victim does not face many repercussions later on in her life. When asked how he felt when hearing the victim read out the Victim Impact Statement, the offender said it was difficult to hear, especially when he was going into the cell that night and nights after that. He stated that at the time of the offending, he had not anticipated the harm that would be caused as a result of his actions.

36. During cross-examination, the offender provided insight into his steroid use prior to, and at the time of the offending, explaining that at the time of the offending, he would have been using steroids for approximately two months on a cycle. The offender agreed that he first communicated with the victim via Snapchat. He could not remember whether he had lied about his age during these initial communications, however conceded that if that fact is contained in the agreed facts, then he had.

37. The offender conceded that the victim had told him she was fourteen turning fifteen, and that he knew there was a significant age difference. The offender had allegedly ceased communication with the victim once he knew her age, however continued communicating with her after she had sent him another message. The offender further conceded that despite knowing the victim was a child, he had still sent her pictures of his penis, and made arrangements to meet up with her the following day.

38. The offender later told the court that he did not know the victim was a child when he was arranging to meet up with her, and that despite the victim initially telling him she was fourteen, she later told him she was seventeen, and it was after this that they arranged to meet in person. However, the offender eventually conceded that when arranging to meet the victim in person, he knew that she was fourteen, turning fifteen. This concession was made only after the offender was taken to paragraph 23(c) of the agreed facts, which outlined the offender’s account to police that the victim had told him she was seventeen after they had met in person.

39. When asked why he had decided to meet with the victim, knowing she was a child, the offender said that he did not know. The offender agreed that he is now aware that the victim was scared during the period of intercourse, and that she was filming the events as a means of proof of what was occurring. At the time of the offending, the offender weighed approximately 105kg, and described the victim as being slight in stature.

Crown evidence:

Sentencing Assessment Report (Ex C7)

40. A Sentencing Assessment Report dated 18 November 2022 (Ex C7) was completed on 10 November 2022 and provided to the Court by author, Mr Jonathon van den Bovenkamp.

41. Mr Eldridge acknowledged his guilt regarding the offences, however claimed the victim had told him she was 17 before he had agreed to meet up with her. The offender conceded that his motivation was to engage in sexual intercourse with the victim.

42. The offender acknowledged that he had been experiencing increased boredom due to covid-19 related restrictions at the time of the offending but did not report any significant mental health issues. He acknowledged that he had been in an intimate relationship with his partner of six months at the time of the offending but stated that the relationship was not the “healthiest”. The offender told the SAR author that he had an increased sex drive due to his steroid use at the time, which he claimed was a contributing factor to the offence. However, the psychological file review (Ex C8) noted that the offender was not using steroids at the time of his indecency offence in 2017.

43. Despite expressing remorse for his offending conduct and acknowledging that his actions could have significant repercussions on the victim, Mr Eldridge reiterated his belief in the victim’s claim that she was 17 years old.

44. The offender had been assessed at a low-medium risk of reoffending according to the Level of Service Inventory – Revised. However, Community Corrections had overridden the offender’s overall risk of reoffending to high, because of a sex offending assessment that was completed as part of the overall process.

The case note report dated 25 August 2022 (Ex C8)

45. This report was prepared by Ms Elizabeth Lawrence, a corrective services psychologist, based on file information and not by direct contact with the offender. The offender was measured on the STATIC-99R instrument, designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. Based on the available information on file, the offender’s STATIC-99R score placed him in the “well above average” risk range, relative to other male sexual offenders. This score was based on the offender’s age, no prior live-in relationship of two years’ duration, a prior conviction for a sexual offence, a non-contact sexual offence on record, and unrelated and stranger victims.

46. In relation to the offender’s risk of recidivism, Ms Lawrence strongly recommended specific intervention to address areas of dynamic risk including sexual self-regulation. There were both community and custody-based specialist treatment options offered by CSNSW Sex Offender Programs, which were prioritised for higher risk offenders.

Victim Impact Statement (Ex C5)

47. A victim impact statement (Ex C5) was provided and read by the victim at the first hearing on 23 September, which demonstrated the significant impact the offending has had on the victim’s mental health and life more generally.

48. Since the incident she has suffered depression and at times has wanted to die. She has recurrent nightmares, flashbacks and suicidal thoughts most days. She feels overwhelmed by everything she used to enjoy.

49. She no longer enjoys the things she used to and feels that her childhood has been stolen from her. As a result of incessant bullying, she has changed schools twice.

Crown Submissions

50. The Crown acknowledged that the offender was entitled to a full 25% discount for entering a plea of guilty at the earliest opportunity.

51. The Crown submitted that the seriousness with which the two offences were viewed by the community was evidenced by the maximum penalties attaching to the offences, being a period of 10 years. Sexual offences against children were well recognised as being subjectively serious and caused significant harm to victims, citing R v Gavel [2014] NSWCCA 56 at [110].

52. The Crown noted the older age of the offender, the absence of a criminal record, and the fact that offences may occur spontaneously as common features of child sexual assault perpetrated by adults. Citing R v Wright [2017] NSWCCA 102, the Crown further submitted that where these common features were present, either individually or collectively, a sentencing decision which does not involve a period of full-time custody would stand for nothing.

53. The Crown contended that any sentence imposed must include a substantial element of general deterrence, which was of prime importance in making the community aware of the courts’ attitude to child sexual offences (R v Burchell (1987) 34 A Crim R 148 (per Hunt J at 150 – 151)). Additional relevant principles in sentencing for child sexual abuse included denunciation and community protection.

54. While the nature of the intercourse that formed the basis of the charge was relevant, it could not be ranked into a hierarchy (R v King [2009] NSWCCA 117, and as such, the seriousness was determined by considering the entirety of the facts and circumstances (R v AJP (2004) A Crim R 575). The most significant matter which determined the objective seriousness of such an offence was the degree to which the offender was seen to have exploited the youth of the child (R v Sea (unrep, 13/8/1990, NSWCCA)).

55. The Crown submitted that the two offences for which the offender was convicted were very serious and fell within the mid-range of objective seriousness for offences of this type. The Crown highlighted the following matters as being relevant to the objective seriousness of the offending:

1. The offender was not well known to the victim.

2. The victim was fourteen years old, two years short of the threshold age for the offence.

3. The offender lied to the victim about his age, stating he was 18 when he was 24 at the time of the offending.

4. The significant age difference between the victim and the offender, namely 10 years.

5. The offences were not opportunistic and involved some planning, as evidenced by the Snap Chat interactions the night before.

6. The offences were not fleeting and involved the commission of two separate offences in two separate locations on the same day.

7. Whilst the serious conduct contained at paragraphs 11 – 14 of the agreed facts was not the subject of any charge, and therefore cannot aggravate the sentence, it does evidence that the offences charged were not isolated acts.

8. In sequence 4, the intercourse was unprotected, and the offender ejaculated inside the victim’s vagina, causing a risk of pregnancy and possible transmission of disease.

9. The offender’s conduct gives rise to a compelling inference that he was targeting a child.

10. Notwithstanding the victim’s inability at law to consent, the victim told police that she did not willingly participate in the offences and felt scared during the offending.

11. That victim did not oppose the offending at the time does not mitigate the objective seriousness of the offending and is irrelevant to the present sentencing exercise.

56. The offending the subject of sequence 4, having been committed in the home of the victim, was an aggravating factor pursuant to s 21A (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offender’s written submissions contended there were no aggravating factors to the offending. In oral submissions, Counsel for the offender submitted that this aggravating factor was not applicable given that the offending occurred on the outside veranda of the victim’s home as opposed to inside the home.

57. The Crown submitted that the offender was not a person of prior good character, noting his previous conviction for an offence of a similar nature to the present offences, namely, commit an act of indecency with person 16 years or over, for which he was sentenced to a s 9 bond for 12 months. This previous conviction, and the current charges, were suggestive of a pattern of sexual deviancy and issues with sexual regulation. As such, the Crown contended that the offender’s prospects of rehabilitation would likely remain low, unless this specific criminogenic factor was treated. The Crown conceded that the offender did not appear to be at risk of reoffending in other types of offences.

58. The Crown contended that child sexual assault offences, even where physical harm was not suffered, were apt to produce psychological consequences, even if they did not manifest until sometime in the future (R v Hudson (unrep, NSWCCA 30/7/1998). The detrimental psychological effects that the offences had on the victim were outlined in the Victim Impact Statement (VIS), provided, and read to the Court. Noting that the VIS disclosed impacts consistent with that expected for victims of child sexual assault, the Crown did not submit that the VIS should be considered to establish “substantial harm” pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

59. The Crown submitted that should the offender rely on any mental disorder in mitigation of sentence, arising from the findings of Mr Schreiners psychological report, that the principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] were relevant. However, the Crown further submitted that this was not a matter where the principles of De La Rosa were engaged, with reference to Simpson J’s observations in Aslan v R [2014] NSWCCA 114 at [34].

60. The Crown submitted that the court would be cautious in making a finding of remorse.

61. The Crown conceded that a finding of special circumstances could be made in circumstances where this was the offender’s first time in custody, and that he would benefit from additional support and assistance upon his eventual release.

62. The Crown submitted that notwithstanding the offences occurred on the same day, the offender was to be sentenced for committing two offences, on the victim, on two different occasions. The Crown further contended that some degree of accumulation was warranted, in order to address the additional criminality reflected in the different acts, and in order for the totality of the criminality evidenced by the offences to be properly reflected.

63. The Crown contended that to properly address the need for specific deterrence, protection of the community, and recognition of the harm caused to the victim and the community, the court would impose a sentence of full-time custody.

The offender’s submissions

64. The offender submitted that the offences were low to mid-range in objective seriousness, and that there were no aggravating factors. As previously noted, in oral submissions, Counsel for the offender challenged the Crown’s submissions that the offending the subject of sequence 4, having been committed in the home of the victim, was an aggravating factor. This point was contested on the factual basis that the offending occurred on the veranda of the victim’s home, and not inside her home.

65. The offender relied upon subjective matters traversed in the report of Mr Istvan Schreiner.

66. In respect of mitigating factors, whilst it was submitted that the offender had good prospects of rehabilitation, and was unlikely to re-offend, this was based upon that part of the opinion of Istvan Schreiner which was ultimately withdrawn. Counsel for the offender also noted the offender’s early plea of guilty, his co-operation with police and voluntary interview, and his full admissions to the offences.

67. It was submitted that the offender had a “very limited criminal history”, briefly citing his prior conviction, and that aside from the offending the subject of this sentence, he was “otherwise a contributing member of society”. This submission is said to be corroborated by the character references tendered in support of the offender.

68. The offender is considering going bankrupt as he has been unable to maintain his personal and car loan whilst being in custody. Upon his eventual release from custody, he intended to continue working as a truck driver, and planned to obtain his multi-combination truck driver’s license to drive bigger vehicles. The offender may also return to his glazing apprenticeship at some stage.

69. Whilst it is conceded that the court will need to consider general deterrence, denunciation of the conduct, and recognition of harm in sentencing the offender, Counsel for the offender submitted that when considering the offender’s lack of antecedents, combined with his early admissions to the police and early plea of guilty, specific deterrence was not a strong factor in terms of the synthesis of sentencing.

70. The Court was asked to take into account that the charges were capable of summary disposal. In the event the court finds no penalty other than imprisonment was appropriate, special circumstances applied, including:

1. It was the offender’s first time in custody, and he had found the adjustment difficult.

2. The offender’s risk of re-offending was low.

3. A longer period on parole would assist with rehabilitation opportunities.

71. The offender cited two comparable cases to assist in the sentencing process.

Consideration

72. At the time of the offending the victim was aged 14, being the youngest age for the element constituting the offence. There was a significant age difference between the victim and the offender, no doubt being a matter of which the offender was aware given the offender lied about his age when engaging with the victim. The offender was aware of the victim's age arising from the initial messages between the two.

73. The offending involved a series of acts of sexual intercourse, the second involving penile vaginal intercourse in circumstances where the offender ejaculated inside the victim’s vagina whilst not wearing any protection. Aggravating the significant age disparity was the weight disparity, with the offender weighing approximately 105 kg and the victim being of slight build. It is hardly surprising in these circumstances that the victim described being scared and generally intimidated, such that she felt compelled to comply with the offender’s directions.

74. The offending involved two acts of sexual intercourse within a relatively short period of time. I accept the Crown's submission that both offences fall within the mid-range of seriousness.

75. It is well recognised that offences against children are subjectively serious and cause significant harm to victims. As the court observed in Gavel at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives… Sexual abuse of children will inevitably give rise to psychological damage… The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.”

76. The sentence must reflect general and specific deterrence. Sexual offences against children are disturbingly commonplace and, in these circumstances, it is important that the court emphasise its abhorrence in respect to such offending. The accessibility of the internet, social media and messaging apps has made it all too easy for predatory behaviour, targeting young people such as the victim in the present case, to occur. The sentence must include an element of general deterrence in respect to such offending.

77. There must also be an element of specific deterrence in respect to the offender. The offender has a prior conviction of commit an act of indecency with a person 16 years or over from February 2017.

78. I accept an aggravating factor was that the offence was committed in the home of the victim. I do not accept the offender's submission that it was not committed “in the home”.

79. As Bathurst CJ (Beazley P agreeing) observed in R v Lulham [2016] NSWCCA 287 at [5]:

“The word “home” must be considered in the context in which it appears in the legislation. As was made clear in the Second Reading Speech, to which I have referred in Jonson v R at [14], the reason it can be taken into account as an aggravating factor is that an offence to which the subsection applies involves a violation of the victim’s reasonable expectation of safety and security in his or her home. It seems to me this expectation would extend not only to the actual physical residence but to the area on the same premises, at least reasonably adjacent to that building.”

80. As His Honour further observed it will be a matter for the sentencing Judge to determine whether, on ordinary sentencing principles, it does in fact aggravate the offence.

81. In the circumstances of the present case the offender had driven the victim to her home, having already engaged in sexual intercourse in a park nearby. Given the victim's vulnerability, age and size difference, the victim would have been susceptible to directions or suggestions of the offender. I am satisfied that in these circumstances the fact that the offence was committed in the home of the victim is an aggravating factor.

82. A further aggravating factor was that the offences involved a series of criminal acts, albeit occurring over a relatively short period of time. The offending involved a degree of exploitation of the victim's youth. I accept that the offending has had a profound impact on the victim, demonstrated by the contents of the victim impact statement and the emotion with which it was delivered.

83. The offender has pleaded guilty at the earliest opportunity and accordingly is entitled to the full discount of 25% reflecting the utilitarian value of the plea of guilty.

84. The offender’s expressed remorse must be approached with some caution. The offender’s attempts to mitigate his offending when interviewed by police does not reflect well on his credibility or character. Whilst I take into account the offender accepting full responsibility for his actions at the time of the psychological assessment, again this must be approached with some caution. The Sentencing Assessment Report noted that whilst the offender had acknowledged his guilt, he continued to claim that despite the victim's initial statements that she was between 14 and 15 years of age, she had later indicated that she was between 17 and 18 before agreeing to meet up with her.

85. The offender gave evidence, again expressing remorse for his actions. However, in the course of evidence the offender again claimed that he did not know the victim was a child when arranging to meet with her in circumstances where, whilst the victim initially told him she was 14, she later told him she was 17. The offender only conceded, when taken to the agreed facts, that indeed when making arrangements to meet the victim in person he knew she was 14 turning 15. When specifically asked why he decided to meet with the victim, knowing she was a child, the offender claimed that he did not know. This is consistent with the offender not fully coming to terms with the level of criminality arising from his offending.

86. I take into account the observations of Istvan Scheriner, psychologist that it was likely the offender had suffered recurring depressive symptoms in the past. I take into account the psychologist's opinion that the characteristics of the offender with respect to this diagnosis could lead to acting impulsively and making poor decisions. Whilst I accept there are some prospects of rehabilitation, I do not accept the offender’s submission that such prospects are “good”. This is in circumstances where the offender continues to appear reluctant to admit the seriousness or degree of criminality involved in his offending.

87. I consider, given the sentencing assessment report, and the STATIC – 99R assessment, that the offender has a medium risk of re-offending.

88. Whilst there are two offences in respect to which the court is passing sentence, this is an appropriate matter for the court to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary for me to indicate what sentences I would have imposed had separate sentences been imposed.

80. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed the individual offences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

81. I accept the Crown's submission that there needs to be a degree of accumulation between the sentences imposed, given the offender is to be sentenced for committing two offences on the victim on two different occasions, notwithstanding that they took place on the same day. As Hoeben CJCL observed in Franklin v R [2013] NSWCCA 122 at [44]:

“There is no rule that sentences for offences committed on the same day, or as part of the same criminal enterprise, should be served concurrently. A sentence should not be "concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct" (R v Jarrold (Howie J at [56]). The question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence (Cahyadi v R). If not, the sentence should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R at [27]).”

91. I must take into account the purposes of sentencing provided in s 3A of the Crimes (Sentencing Procedure) Act including to ensure the offender is adequately punished for the offence, to prevent crime by deterring the offender and others from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.

92. I am satisfied that the s 5 threshold has been crossed and, having considered all possible alternatives, am of the opinion that no penalty other than imprisonment is appropriate.

93. In accordance with my earlier findings, the offender is entitled to a discount of 25% in respect to each offence.

94. In respect to count 1, sexual intercourse with a child over the age of 14 and under the age of 16 years (penis in mouth), the appropriate sentence is 3 years, from which is to be deducted the 25% for the utilitarian plea of guilty, resulting in a total sentence of 2 years and 3 months.

95. In respect to count 2, sexual intercourse with a child over the age of 14 and under the age of 16 years (penile-vaginal intercourse), the appropriate sentence is 3 years and 6 months, from which is to be deducted the 25% for utilitarian value of the plea of guilty resulting in a total sentence of 2 years and 7 months.

96. Taking into account the need for accumulation between sentences, a total aggregate sentence of 3 years 6 months is appropriate.

97. I find special circumstances given it is the offender’s first time in custody and that the offender would benefit from additional supervision, assistance and rehabilitation upon release. In the circumstances, I impose a non-parole period of 2 years.

Orders

1. In respect of the offences to which the offender has pleaded guilty, the offender is convicted.

2. I impose an aggregate sentence of imprisonment for 3 years 6 months to date from 18 October 2021 and to expire on 17 April 2025.

3. I impose a non-parole period of 2 years to date from 18 October 2021 and expiring on 17 October 2023.

4. The earliest date the offender is eligible to be released to parole is 17 October 2023.

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Decision last updated: 09 December 2022