R v Garay (No 4)
[2022] ACTSC 138
•10 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Garay (No 4) |
Citation: | [2022] ACTSC 138 |
Hearing Dates: | 22 October 2021, 4 March 2022 and 10 June 2022 |
DecisionDate: | 10 June 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [229] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sexual offences – act of indecency on young person – sexual intercourse with a young person – s 35(4) Sentencing Act – discount for assistance in investigation – consideration of principles in Newby – COVID-19 – hardship and effect on offender’s family and dependants |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 65, 92E, 92K |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 |
Parties: | The Queen ( Crown) John Paul Garay ( Offender) |
Representation: | Counsel S Jerome ( Crown) M Jones SC ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 117 of 2020; SCC 118 of 2020 |
LOUKAS-KARLSSON J
Introduction
on 31 August 2021, following an approximately three-week judge alone trial before me, conducted pursuant to s 68B of the Supreme Court Act 1933 (ACT), I found John Paul Garay (the offender) guilty of the following offences:
(a) six counts of an offence of act of indecency upon a person of or above the age of 10 years but under the age of 16 years, contrary to s 92K(2) of the Crimes Act. The maximum penalty for these offences at the relevant time was 10 years imprisonment.
(b) two counts of an offence of sexual intercourse with a person of or above the age of 10 years but under the age of 16 years, contrary to s 92E(2) of the Crimes Act. The maximum penalty for these offences at the relevant time was 14 years imprisonment.
By way of background, on 23 June 2021, I granted a no case application in relation to one of the counts on the indictment and entered a verdict of not guilty for that charge (count 7). I published my reasons for that decision on 31 August 2021, where I indicated that, in my view, there was insufficient evidence to establish that a second trip to Thredbo had taken place and that the application should be granted with respect to count 7: R v Garay (No 3) [2021] ACTSC 215 at [336] (Garay (No 3)).
On 23 June 2021, I refused the no case application that had been brought by the offender against counts 1-6, 8-12 and 18: Garay (No 3) at [224]-[371].
On 31 August 2021, I found the offender not guilty of the remaining counts on the indictment.
I must also sentence the offender for the following offence. In May 2020, in the Magistrates Court, the offender had pleaded guilty to the following offence:
(a)An offence of possess child exploitation material, contrary to s 65 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 7 years imprisonment or 700 penalty units, or both.
The court committed the offender to the Supreme Court to be dealt with under s 90A of the Magistrates Court Act 1930 (ACT).
History of Sentencing Proceedings
The proceeding was first listed for sentencing submissions in late 2021. After that hearing, I adjourned the matter part-heard to 31 January 2022 primarily to enable the offender to make necessary arrangements for his elderly mother who is in her eighties and who, as will be explained later in these reasons, relied upon him for her care, and for the parties to address the court on outstanding issues, including the impact of COVID-19 on prisoners in the ACT (T, 22 October 2022, 84; T, 4 March 2022, 2). Regrettably, the matter had to be relisted for 4 March 2022 due to my unavailability.
The matter returned before me on that date. Despite the fact that the offender had the benefit of an additional month to make suitable arrangements for his elderly mother, no arrangement had been made for his mother’s care. Counsel for the offender indicated in response to a question as to what would occur if arrangements were not made when the matter was before me for sentencing: “at the end of the day, if she can’t be accommodated, it will be a matter of ringing an ambulance … and then she will have to go through the public health system and then it will be their problem” (T, 4 March 2022, 9.22-25).
No revocation of bail was sought by counsel for the prosecution at that time and the matter was listed for sentence hand down on 31 March 2022. A decision on a separate application made by the offender to stay the sentence being handed down was listed earlier on that same day, 31 March 2022, before McCallum CJ.
The offender attended this Court for the handing down of the stay decision, in which McCallum CJ dismissed the offender’s application. There was no application by the prosecution at that time to refuse bail and, in any event, the offender was to return to Court that afternoon for his sentencing.
The offender did not attend Court for his sentencing that day, and I made an order issuing a bench warrant for his arrest. The matters leading to the offender not attending Court that afternoon will be discussed later in these reasons. Relevantly for present purposes, the offender was located and returned before the Court early the next week and orders were made revoking bail and permitting counsel for the defendant to provide the Court with a further psychological report and for the parties to provide further written submissions limited to the application of the Verdins principles to the offender.
The time necessary to prepare such a report meant that the matter was listed finally for sentencing on 10 June 2022.
Facts for Offences Against Victim
The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court’s role in sentencing and interpreting a jury’s verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at 377-378). While the verdicts in this case arose from a Judge alone trial rather than a jury trial it is nevertheless apposite to have regard to relevant general principles articulated there: see also Filippou v The Queen [2015] HCA 29; 256 CLR 47 especially at 71.
I take those principles into account in making the findings of fact below in relation to the offences against the victim.
Following the judge alone trial before me, I convicted the offender of eight counts on the indictment, which can be briefly described as follows:
· Count 2 – the offender used his hand to masturbate the victim’s penis until ejaculation.
· Count 11 – the offender used his hand to masturbate the victim’s penis until ejaculation.
· Count 12 – the offender used his hand to masturbate the victim’s penis until ejaculation.
· Count 13 – the offender used his hand to masturbate the victim’s penis.
· Count 14 – the offender penetrated the victim’s anus with his penis.
· Count 15 – the offender used his hand to masturbate the victim’s penis until ejaculation.
· Count 16 – the offender penetrated the victim’s anus with his penis.
· Count 17 – the offender used his hand to masturbate the victim’s penis until ejaculation.
I found the offender not guilty of the remaining counts on the indictment because, in my view, there were issues concerning the specificity of the dates of the events in question: see Garay (No 3) at [826]-[829] with the prosecution having tied those counts to specific occasions.
The following facts summarise the victim’s evidence, which I accepted beyond reasonable doubt, regarding the counts the offender was convicted of.
In relation to count 2, the victim’s evidence was that on the night of SD’s 21st birthday party he stayed at the offender’s house and slept in his bed. At some point during the night the offender masturbated the victim until the victim ejaculated.
In relation to count 11, the victim’s evidence was that on the night of the surprise party he went to sleep in the offender’s bed and the offender pulled the victim’s penis out of the slit in his pants and masturbated the victim until he ejaculated.
In relation to count 12, the victim’s evidence was that the night after the surprise party, he again slept in the offender’s bed. At some point the offender then pulled the victim’s penis out of his pants and masturbated the victim until he ejaculated.
In relation to counts 13, 14 and 15, the victim’s evidence was that he went to visit the offender’s house at some point while he was in year 7 but slept in the spare bedroom the first night. The next day the offender was angry about this, and the victim moved his bags to the offender’s room. That night they watched a movie while in the offender’s bed, and the offender pulled the victim’s penis out of his pyjama pants and masturbated him while the victim watched the movie (count 13). Subsequently, while the offender continued to do this, the victim could feel the offender’s erect penis on his anal cavity through his pants. The offender pushed his penis into the victim’s anus along with the victim’s pyjama pants (count 14). This penetration was “not very deep” as the victim was still wearing his pyjama pants. Later that evening, the victim pretended to sleep, and the offender pulled his penis out of his pants and masturbated the victim until ejaculation (count 15).
In relation to counts 16 and 17, the victim’s evidence is that this occurred the night after the conduct relating to counts 13, 14 and 15. On that evening the offender and the victim watched a movie together in the offender’s bed. The offender rubbed his erect penis against the victim’s anal cavity through the victim’s pyjama pants. The offender’s penis penetrated the victim’s anus (count 16). The penetration was not very deep due to the victim’s pyjama pants. The victim then went to the toilet and on his return pretended to go to sleep. The offender then pulled the victim’s penis out of the slit in his pants and masturbated him until the victim ejaculated (count 17).
As is apparent from the above, counts 14 and 16 involved the offender’s penis penetrating the victim’s anus. Counts 2, 11, 12, 15 and 17 involved the offender masturbating the victim’s penis with his hand until the victim ejaculated and count 13 involved masturbation without the victim ejaculating.
Agreed Facts for Child Exploitation Offences
In relation to the child exploitation material offence, the parties have supplied a Statement of Agreed Facts, which forms part of the Amended Crown Tender Bundle. The agreed facts may be summarised as follows.
On 20 December 2019, police officers executed a search warrant on the offender’s house during which they located a USB device which contained child exploitation material. The device was plugged into the back of a television in the offender’s bedroom.
During the search warrant interview, the offender admitted that he had downloaded and viewed the child exploitation material on the USB device.
On 24 December 2019, a police officer examined the USB device and located 16 video files that were identified as child exploitation material. It is worth noting that there was a slight inconsistency in the Statement of Agreed Facts as to whether 16 or 17 files were located. The prosecution indicated that their understanding was that there were 16 files, and I have approached the matter accordingly. That officer subsequently categorised 15 of the video files using the ANVIL Scheme Categorising system. There is no explanation in the Statement of Agreed Facts or in the parties’ submissions as to why one of the videos was not categorised. I provided the opportunity to the parties to provide any submissions on that point and no submissions on that point were received. In my view, nothing turns on which category the 16th video should be placed into.
Of the videos categorised by the officer, six were in Category One (that is they involved no sexual activity but were sexually suggestive), four were in Category Two (involving solo/sex acts between children) and five were in Category Four (involving penetrative sexual acts between children or adult/child). In this case penetrative sexual acts between children.
According to the officer’s statement (as referred to in the Statement of Agreed Facts), the video files involved male children between the ages of 9 and 16 engaging in solo masturbation, masturbation of others, fellatio and penetrative sexual acts with other children. The total length of all of the videos is approximately three and half hours.
Victim Impact Statements
Two Victim Impact Statements were read at the sentencing hearing, one from the victim and one from his wife. Their statements include details regarding the significant impact that the offender’s conduct has had on the victim and his wife. In particular, the victim’s statement details the effect that the abuse had on his education, career and wellbeing over the course of his life.
The victim’s statement also details his battle with diagnosed post-traumatic stress disorder and major depression. He was diagnosed with these conditions in 2010 and was medically discharged from his employment as a police officer in mid-2011.
[Redacted]
Counsel for the offender acknowledged the significant therapeutic benefit in allowing the Victim Impact Statements to be read in full at the sentencing hearing, however correctly submitted that there were some limits on the use of the evidence contained in those statements in relation to several matters.
First, counsel for the offender submitted that the statements include details concerning the impact of the offending on the victim’s primary schooling years, a period which predates the offences that the offender has been found guilty of. On this basis, counsel for the offender submitted that the impact of my earlier findings prevents the use of that evidence in determining sentence. The prosecution did not offer any contrary submission, and consequently I do not have regard to the evidence of the impact of the offending on the victim’s primary schooling years.
Second, counsel for the offender submitted that both victim impact statements refer to the victim’s lengthy battle with two serious mental health conditions and the impact that those conditions have had on his life and on those around him. Counsel for the offender submitted, and I accept, that the statements also acknowledge that the offender’s conduct was not the sole cause of those conditions, with the victim also facing significant trauma from his work environment.
On that basis, counsel for the offender submitted at the sentencing hearing that the Court could not be satisfied that the offending was the sole or primary cause of those conditions and that, accordingly, the use of the statements “must be confined to the harm that is caused because of the offence[s], and in terms of the psychological issues … it [will not] be possible on the evidence … to attribute the cause of that [harm]”. The prosecution did not advance any argument contrary to counsel for the offender’s submissions in that regard.
Third, counsel for the offender raised a number of other matters contained in the statements that in their submission ought not be considered by the Court or should be given less weight. These included the bequeathment of money to the victim by the victim’s uncle which was less than some of his other family members received, the harshness of the cross-examination the victim referred to, and the impact of the offending on the victim’s ability to earn money. This final matter arose on counsel for the offender’s submission as similar to the victim’s mental health conditions, there seemed to be multiple possible causes for his loss of earning capacity.
The prosecution largely accepted those submissions but correctly submitted that the offending did affect the victim’s education post primary school and this had a “flow-on affect … [on the victim’s] ability to gain employment”.
Accordingly, I have had regard to both of the statements except for the material relating to the issues discussed above.
The Court recognises the serious, long-lasting and tragic effect of the crimes on the victim. It must be stated that the Court in this case acknowledges the devastating impact that the offences have had on both the victim and his wife. The Court further acknowledges the importance of what both the victim and his wife have expressed in their victim impact statements.
Objective Seriousness
In relation to the sexual offences against children, the authorities have stated that the following factors are relevant in making an assessment of the objective seriousness:
· Whether the conduct involved penetration: R v Horton-Hegarty [2018] ACTCA 22 (R v Horton-Hegarty) at [69].
· The age difference between the offender and complainant: R v Horton-Hegarty at [69].
· The age of the complainant, with offending against younger victims being more serious: R v Goboly [2016] ACTSC 322 at [59]-[62].
· Whether the offender is in a position of trust or authority with regard to the complainant: R v Pretorius (No 2) [2016] ACTSC 358 at [17]-[18].
Sexual offences of this nature cover a wide spectrum of criminal culpability. In Jurj v The Queen [2016] VSCA 57 at [80] the Court identified various features as relevant generally to the assessment of objective seriousness, stating:
A review of those decisions reveals that the features which are typically taken into account by sentencing courts … in assessing the gravity of a particular offence of rape are as follows:
·whether the offence was premeditated;
·whether the offender acted alone or in company;
·how long the attack lasted and whether the victim was raped more than once;
·whether the offending involved violence or threats of violence;
·whether a weapon was used;
·whether the victim was injured in the course of the rape;
·whether the victim was humiliated or degraded;
·whether the offender used a condom;
·whether the victim was particularly vulnerable; and
·whether the offender ignored warnings or protests by the victim.
(Footnotes omitted)
The features relevant to the assessment of objective seriousness include:
· The approximately 14-year age difference between the offender and the victim;
· The emotional vulnerability of the victim due to his age;
· The fact that the victim was abused while sleeping in the offender’s house;
· The offender being in a position of trust as a family friend and a father figure to the victim;
· The fact that the victim was in the offender’s care at the time of the offences;
· The fact that the offending occurred over a significant period of time, with the offending being premeditated and for the offender’s sexual gratification;
Counts 14 and 16 are the most serious as the counts involve the penetration of the victim’s anus by the offender’s penis. While the prosecution accepted that the penetration was not deep, the prosecution submitted that the acts were not momentary (in the sense that the overall sexual offending “on each occasion was not momentary”) and that the victim did experience discomfort. I accept this submission.
Counsel for the offender submitted that the features relevant to the assessment of objective seriousness of the sexual intercourse offences include:
· That the offences involved the offender rubbing his penis against the clothing of the victim and that, at no stage, did the offender attempt to remove the victim’s clothing or underpants;
· That the actual penetration of the victim’s anus was, according to the victim’s evidence, brief and “of limited duration”;
· In terms of extent, the fact that the penetration was minor;
· The fact that, based on the victim’s account, each instance involved two acts of penetration;
· That the offender was not otherwise violent towards the victim, and, in particular, that he did not pin down the victim or assault him physically;
Having reviewed those factors, counsel for the offender submitted that the sexual intercourse offences while serious are less objectively serious than other forms of penetration covered by the offence such as more extensive anal penetration.
It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]. I accept the features identified by both the prosecution and the offender as set out above and take them into account in sentence. The submissions of the prosecution and the offender concerning the objective seriousness of the penetration offences emphasised different aspects of the offending. Nevertheless, they are not in conflict and can logically stand together.
In relation to the acts of indecency offences, counsel for the offender conceded “that masturbating the [victim] is a more serious example of the offence when compared to touching the genital area” however submitted that the features relevant to the assessment of objective seriousness of the acts of indecency offences include that the acts of masturbation in counts 2, 11 and 12 were not accompanied by the offender engaging in any other sexual acts and that the offender did not use any physical force. There is no contrary prosecution submission, I accept this submission. There is no evidence that any force was used by the offender.
In relation to the child exploitation material offence, the prosecution submitted that although the number of videos was low compared with other cases, the videos were lengthy and involved real children. The prosecution referred to the case of R v Mitchener [2019] ACTSC 351 at [13].
The prosecution further submitted that the offender downloaded and viewed the child exploitation material for his sexual gratification. I accept the prosecution’s submission.
In relation to the child exploitation material offence, counsel for the offender correctly accepted that child exploitation material offences are serious and are not victimless crimes. Counsel for the offender submitted, however, that the number of videos (in comparison to other cases that come before the courts) was low. Counsel for the offender further submitted that as the videos depicted only children, with the majority of the videos showing children masturbating themselves or other children, and the remaining videos involving fellatio, the seriousness of the offence was less than other cases that have come before the courts.
In relation to the offender’s conduct regarding the child exploitation material, counsel for the offender submitted that he located the videos on the internet and did not intend to share the material with anyone else or sell it online. As such counsel for the offender submitted that the offence was less serious than other cases that had come before the courts.
I accept the features identified by both the prosecution and the offender as set out above concerning the acts of indecency offences and the child exploitation material offence and have had regard to them in determining the appropriate sentence. Again, the submissions of the prosecution and the offender concerning objective seriousness are not in conflict and can logically stand together in the assessment of identifying factors for the purpose of assessing objective seriousness.
I note that the offence concerning child exploitation material is at the lower end of the spectrum of objective seriousness. The other offences are clearly much more objectively serious as is obvious from the discussion of the identifying features outlined above.
An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. However, it is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality as discussed above at [40]. What is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. The relevant facts, matters and circumstances concerning all offences have been discussed above.
Subjective Circumstances
In evidence before me is a pre-sentence report (PSR) which includes the following in relation to the offender’s subjective circumstances.
The PSR was prepared by ACT Corrective Services and is dated 20 October 2021. The report notes that the offender was not known to Corrective Services prior to completion of the report, and that he has no prior criminal convictions.
The PSR records that the offender engaged appropriately during interviews with ACT Corrective Services.
In his interviews with the author of the PSR, the offender described a positive upbringing by his family. The offender indicated that he was raised primarily by his grandmother as his parents were often away for work commitments. The offender described that he continues to have a close relationship with his mother and brother, both of whom he resided with at that time. The offender was, prior to going into custody, the full-time carer for both his mother and brother.
The offender’s brother expressed shock on hearing of the charges, however, he advised that his support for his brother “would not wain” were he to be convicted of some or all of the offences. The offender’s brother and mother both stated that were the offender placed on an ICO he could continue to reside in the family home.
The family home in which the offender resides with his brother and mother is mortgaged to the offender. The offender has been paying the mortgage since 1997.
The offender successfully completed his Year 12 certificate in 1977, before attending university. He did not complete the university course, however later attended TAFE to obtain a welding certificate in 1993.
The offender was gainfully employed for a period of 37 years in a number of different professions. He ceased employment in 2013 when he first began to provide in-home care for his elderly mother. Subsequently (although the report does not include the precise date), his brother’s health began to deteriorate, and the offender began to provide in-home care for his brother as well.
The offender, in his interviews with Corrective Services, reported that he had never used illicit substances, and that he had never had a problematic relationship with alcohol. The report noted that information from ACT Health indicated that the offender had occasional acute (situational) alcohol use at specific points in time.
The offender also stated in his interviews that throughout the period leading up to the report he had been busy at home caring for his mother and brother. He also reported that he gambled regularly with his mother to allow her to socialise with other members of the community.
The PSR sets out several details regarding the offender’s health condition, including as to his emotional and mental health. The offender suffers from several physical health issues, notably, hypertension, cholesterol issues and Type II diabetes. He also suffered a heart attack in 2019 which required a stent to be put in.
In relation to his mental health, a report was provided to Corrective Services by ACT mental health which indicated that the offender has been diagnosed with Adjustment Disorder and Cluster B personality traits. On 31 September 2020 the offender was taken by ambulance to an emergency department he was, however, unwilling to wait for a formal mental health review and self-discharged the following day. The PSR notes that the offender had an earlier incident where he attempted suicide in January 2020 which led to him being admitted to the ICU. There had also been a number of earlier suicide attempts.
The PSR records that the offender disagreed with the AFP Statement of Facts and that while he acknowledged that he had spent some time with the victim, he “remains adamant he had not engaged in sexual intercourse or committed any acts of indecency with the victim and had not committed any offence”. It also notes that, in his discussions, the offender “was focused on the unfairness of the legal process on himself as the defendant”.
The PSR includes a detailed opinion by the assessor which relevantly concluded that the offender was at a low risk of general reoffending and an “average risk of sexual reoffending requiring intervention”. This is discussed further at [95]-[97].
The assessing officer assessed the offender as suitable for a Good Behaviour Order requiring a medium level of intervention by ACT Corrective Service and suitable for an Intensive Correction Order. The officer found that the offender was not suitable for a Community Service work condition due to the high level of care he had to provide to his family members.
Mental Condition
It is appropriate to turn to consider the offender’s mental health condition in light of the further submissions provided by the offender. As I outlined above, at the hearing on 5 April 2022 I granted leave for the offender to file a psychological report and to file further written submissions directed to the Verdins principles. This was done in circumstances where the offender had not attended Court on 31 March 2022 for his sentencing and had been found having attempted suicide.
A psychological report was subsequently prepared by Ms Rita Sosich, a clinical and forensic psychologist and tendered by counsel for the offender. No objection to the report was made by the prosecution.
In her report dated 30 May 2022 Ms Sosich addresses the following questions:
(a) If Mr Garay suffered from mental illness, and if so, the diagnosis.
(b) In light of any mental illness Mr Garay suffers, would a sentence of imprisonment way more heavily on him.
(c) In light of any mental illness Mr Garay suffers, is there a serious risk of imprisonment having an adverse effect on his mental health.
Ms Sosich, in her report, refers to the offender’s mental health history, some of which has already been discussed above. Ms Sosich noted that the offender has been admitted to hospital on six occasions in the last 16 years following five suicide attempts and once for suicidal ideation. Ms Sosich identified in her report that his most recent suicide attempt was made in response to an identifiable stressor: the criminal justice process and an accompanying civil claim made by the victim.
Ms Sosich ultimately diagnosed the offender with an “adjustment disorder with mixed disturbance or emotions and conduct which is … chronic”. She also noted that the offender has anxiety with depression symptoms.
Ms Sosich noted that the offender presents with several known suicide risk factors which are outlined in detail in her report.
Ms Sosich concluded that a sentence of imprisonment would weigh more heavily on the offender and that imprisonment would have an adverse effect on his mental health.
Counsel for the offender submitted that these matters where relevant to consideration of s 33(1)(m) of the Sentencing Act which requires the Court to take into account the mental condition of the offender. Counsel also referred me to the principles outlined in R v Verdins (2007) 16 VR 240 which are applicable in the ACT: Ngata v The Queen [2020] ACTCA 18 at [18]-[21]; Higgins v The Queen [2022] ACTCA 26 (Higgins) at [40]-[43].
In Higgins the Court made clear that “where one or more of the circumstances identified in Verdins exists, a discretionary evaluation as to its significance takes place as part of the broader sentencing exercise”.
Counsel for the offender submitted that Ms Sosich’s report enlivened Verdins principles five and six in that a sentence of imprisonment will weigh more heavily on him and there is a serious risk of imprisonment having a significant adverse effect on him.
In particular, counsel for the offender submitted that the report noted that the offender “demonstrates a range of mental health symptoms … assessed with extremely severe depression and anxiety symptoms” and that it is more difficult for the offender to seek and receive assistance from others.
Counsel for the offender further submitted that Ms Sosich’s report indicated that she was of the opinion that there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health. In particular, counsel submitted that the offender may inflame other prisoners due to his interpersonal difficulties and will require high levels of observation, review and management.
Counsel ultimately submitted that in light of the offender’s repeated suicide attempts and the expert assessment the Court would be satisfied that Verdins principles five and six are established and are matters that should be taken into account on sentence.
Those principles are drawn from R v Verdins [2007] VSCA 102; 16 VR 240 (Verdins) at [32] where the Court stated:
Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
(emphasis added, footnotes omitted)
I accept the offender’s submissions. It is apparent from the report that the offender has several mental health conditions that will mean that a sentence of imprisonment will weigh more heavily on him. Further, it is apparent that the criminal proceedings have been a trigger for a suicide attempt and have, in general, led to a decline in his mental condition. So much is apparent from both Ms Sosich’s report and from the PSR.
The prosecution submitted that in making her assessment, Ms Sosich factored into her analysis matters separate to the offender’s mental health condition. In particular, the prosecution submitted that Ms Sosich’s assessment relied on several combined features and that the report does not indicate that the offender’s mental health symptoms were the “main or dominant feature of difficulties [the offender] may potentially face”.
For example, the prosecution submitted that at paragraph 29 of her report Ms Sosich, in concluding that there is a serious risk of imprisonment having a significant effect on the offender’s mental health, referred to the offender’s “interpersonal difficulties, and crime type, threats to him from other inmates whilst in gaol are likely and probably [sic] trigger more suicide responses”.
Ultimately, the prosecution submitted that less weight should be attributed to the Verdins principles in this case but that “some weight can be given to [the offender’s mental health] condition”.
The prosecution also referred me to the case of R v Fangaloka [2019] NSWCCA 173 (Fangaloka) at [64] where Basten JA stated:
Equally there is no doubt that a sentencing court must have regard to the personal circumstances of the offender but they should not divert the court from imposing adequate punishment having regard to the objective gravity of the offence.
I agree with the observations of Basten JA.
In my view, it is appropriate that the Verdins principles are taken into account concerning the offender’s mental condition. In particular, in the manner advocated for by counsel for the offender in relation to principles five and six. I note the comments referred by the prosecution in Fangaloka that the significance given to these matters is something to assess as part of the broader sentencing exercise. While, in my view, it is appropriate to factor these matters into the sentencing exercise, the offender’s mental health condition is not such that a sentence of imprisonment should not be imposed. I accept that a sentence of imprisonment will weigh more heavily on the offender and that there is a serious risk that a period of imprisonment will have an adverse effect on the offender’s mental health condition.
Remorse
The prosecution submitted that the offender has demonstrated no remorse regarding the sexual offending against the victim. The prosecution noted, in particular, that the offender has maintained his innocence in his PSR interviews. I note that no remorse has been expressed concerning the victim, therefore remorse is not a mitigating factor relevant to the sexual offences against the victim.
In relation to the child exploitation material offence, the prosecution submitted that a plea of guilty does not necessarily indicate that an offender is remorseful. The prosecution further submitted that the offender’s comments regarding his offending demonstrate a lack of insight and a failure to appreciate the extent of wrongdoing involved, noting that the offender was indifferent as to the gravity of his offending conduct.
In relation to the child exploitation material offence, I accept that the offender pleaded guilty to that offence at an early stage of the proceedings. A plea of guilty is not necessarily indicative of remorse: Miles v The Queen [2014] ACTCA 41. It is apparent the offender has not demonstrated insight into this offending and the impact of that offending on the victims who appear in the child exploitation material. I accept that the offender has not demonstrated remorse for his offending conduct concerning the child exploitation material, therefore remorse is not a mitigating factor relevant to the child exploitation material offence. Nevertheless, the plea of guilty is relevant to the sentence as discussed at [102]-[130].
Rehabilitation
The PSR assesses the offender as being of an average risk of sexual reoffending and of low risk of general reoffending. Such assessments are necessarily blunt instruments. Nevertheless, in my view, this is not a case where it can be said that the offender has overwhelmingly great prospects of rehabilitation.
The prosecution submitted that the offender has low to average prospects of rehabilitation given his attitude towards the offences and his possession of the child exploitation material.
In my view, on the evidence, the offender’s prospects for rehabilitation cannot be said to be more than guarded.
References
No references were tendered in support of the offender.
In relation to the fact that no references were provided, counsel for the offender submitted that nothing should be drawn from that fact, as, in cases such as this one, it is difficult for referees to go on the public record due to potential issues if their names are linked publicly to the offending.
Criminal History
The offender has no prior criminal history. I take this factor into account in sentencing.
Counsel for the offender correctly submitted, and the prosecution conceded, that s 34A(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) does not prevent the offender’s prior good character from being considered in this case.
Plea of Guilty
The offender entered a plea of guilty for the child exploitation material offence at an early stage of proceedings. Self-evidently, the offender did not enter any pleas of guilty for the other offences that he was later convicted of.
Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
In relation to the plea, the prosecution submitted that while the plea does have utilitarian value, the evidence against the offender was “overwhelming” and on that basis a significant reduction in sentence is not warranted: s 35(4) Sentencing Act.
Counsel for the offender submitted that the plea was at an early stage of proceedings and was of utilitarian benefit. Counsel for the offender further submitted that the plea obviated the need for the videos to be viewed at the trial. Counsel for the offender initially submitted that a discount of 25% would be appropriate in those circumstances.
In my view, the plea was of utilitarian value, occurred at an early stage of the proceedings and avoided the need for the footage to be viewed at the hearing. However, despite this fact I must consider the prosecution submission that the case against the offender was overwhelmingly strong, such that s 35(4) of the Sentencing Act should apply. That section relevantly states:
However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution's case for the offence was overwhelmingly strong.
(emphasis added)
After initial submissions, the Court of Appeal delivered its reasons in R v Newby [2022] ACTCA 20 (Newby). Given the decision discussed s 35(4) and the meaning of “overwhelmingly strong”, I invited the parties to provide further written and oral submissions on the application of the case to this proceeding.
In R v Newby [2022] ACTCA 20 (Newby) the Court of Appeal discussed the meaning of overwhelmingly strong at [31], stating:
The Macquarie Dictionary defines “overwhelming” as being so great as to render opposition useless. That is the general sense in which that adverb is used in s 35(4). It does not mean that nothing other than a guilty verdict was possible.In context it suggests that an acquittal is realistically unlikely.It calls for a practical assessment of the reality of the situation. But it cannot mean so high a hurdle that it can never be met.
(emphasis added)
At [47] the Court of Appeal stated that “short of a confession, it is difficult to see how the prosecution case could have been much stronger”. In my view, this is such a case. The offender admitted during the search warrant interview that he downloaded and viewed the material, and that the USB device plugged into the television was his. Given those statements, while a guilty verdict was perhaps not certain, adopting the language used by the Court in Newby it suggests that an acquittal at that point was “realistically unlikely”. Given those admissions, the only remaining possible defence would be that the images were not child exploitation material.
Counsel for the offender submitted in further written and oral submissions that this case is distinguishable from Newby and that the prosecution case was not “overwhelmingly strong”. In particular, counsel for the offender submitted that the Court in Newby did not consider the reasoning of the Court of Appeal in Monfries v The Queen [2014] ACTCA 46 (Monfries).
Counsel for the offender submitted, in particular, that:
[w]ithout admissions … it would have been difficult for the police to prove possession in a situation where Mr Garay resided with two other people. It is submitted that s 35(4) is not directed at the case where an offender cooperates with police and makes full admissions. Fully co-operating with police should not disentitle an offender from a discount due to the operation of s 35(4).
I am bound by Newby. In my view, Newby is not distinguishable on this point. I note that the Court at [47] stated that “short of a confession, it is difficult to see how the prosecution case could have been much stronger”. There is no relevant distinction in this context between a confession and an admission to a questioning officer for the purpose of s 35(4). This was conceded by counsel for the offender in oral submissions (T, 10 June 2022, 10.39-46).
There is nothing in the Court of Appeal’s reasons that would suggest that the Court in assessing whether the prosecution case was “overwhelmingly strong” excluded the offender’s admissions.
Nor is there anything in the language of the section or the Explanatory Statement that would support an approach that would permit this Court to exclude certain evidence in its assessment of the strength of the prosecution case. Counsel for the offender did not draw my attention to any language in the statute or authority in this Court or any other court that supports the submission that admissions must be excluded from assessing the strength of the prosecution case.
It is concerning from a jurisprudential perspective that this militates against the utility of admissions for offenders. Nevertheless, unless the legislature or a subsequent Court of Appeal holds otherwise, I am bound. I will discuss the application of s 36 later in this judgment.
Accordingly, I accept the prosecution’s submission that the case against the offender was overwhelmingly strong. As outlined at [26] above, the offender admitted during the search warrant interview that he had downloaded and viewed the material. In those circumstances, the case against the offender was overwhelmingly strong.
While, perhaps, on the standard of beyond reasonable doubt, a defence may have been run, an acquittal on the charge cannot be assessed as anything other than “realistically unlikely” to use the phrase from Newby. As in Newby it is hard to imagine a stronger prosecution case than one where the offender, as in this case, makes clear admissions in a search warrant interview. As to the content of the material, the nature of the material is unequivocal.
Despite that finding, it is nevertheless correct to state that the plea of guilty has utilitarian benefit: R v Williams [2019] ACTSC 298 at [3] (Murrell CJ) as endorsed by the Court of Appeal in Blundell v The Queen [2019] ACTCA 34) in obviating the need for the Court to view at least some of the child exploitation material or for witnesses to be called to give evidence in relation to the material. As Newby makes clear, in cases where the prosecution case is overwhelmingly strong a significant reduction of the sentence is not permitted by the operation of s 35(4). In my view, in light of the circumstances, and, in particular, the utilitarian benefit in not requiring the Court to view the material, the appropriate discount is 15%. But for the finding that the prosecution case was overwhelmingly strong, I would have awarded a 25% discount.
In my view, there is some tension between Newby and previous Court of Appeal decisions such as Blundell which highlighted the importance of assessing the utilitarian benefit of a plea of guilty in determining an appropriate discount. I note that the Court in Newby did not consider Blundell in its reasoning. Counsel for the offender in written submissions also referred to the case of Monfries at [44]-[45] submitting that “it is arguable there is some conflict between” the two Court of Appeal decisions. In oral submissions counsel further submitted that the decisions were inconsistent and that the Court in Newby did not refer to the decision of Monfries. I note that the decision of Monfries was concerned with a strong but not overwhelmingly strong prosecution case: Monfries at [44]. I note further that the Court in Newby indirectly referred to Monfries by quoting the decision of Toumo’ua which referred to Monfries: see Newby at [32].
The Court in Newby followed the approach outlined in Toumo’ua where the Court of Appeal stated at [70]-[71]:
The rationale for importing this consideration into s 35, which is otherwise largely focused on the timing of the plea of guilty and its associated utilitarian value, is unclear. The Explanatory Statement does not elaborate on the purpose of including s 35(4) …
In any event, in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty. In Monfries at [44] Murrell CJ (with whom Burns and Ross JJ agreed on this point) said:
Despite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case.
(my emphasis added)
Importantly, the Court of Appeal in Toumo’ua did not state that there was no utilitarian benefit of a plea of guilty in light of an overwhelmingly strong prosecution case, merely that where a case was “strong” as opposed to “overwhelmingly strong” there was no reason to reduce the discount given for the utilitarian benefit of the plea.
In Newby the Court also referred without further elaboration to the decision of Williams v The Queen [2018] ACTCA 4; 83 MVR 505 (Williams) where the Court of Appeal observed at [53], [56]-[57] that:
Turning to s 35(4), this subsection may be seen as a fetter on the general discretion that the court exercises in sentencing an offender. When the subsection is applicable, it would generally be accepted that the sentencing judge would specifically refer to it, if it was productive of a decrease in the discount that would normally be applied. When one examines the above quoted passage from his Honour’s judgment concerning the discount that does not seem to have been the case here.
…
This case perhaps provides a salutary lesson to persons advising clients on pleas of guilty that a 20% or 25% discount for an early plea in the Magistrates Court might not be forthcoming if the Crown’s position is that the offender is facing a case that falls within the bounds of s 35(4). An enquiry of the Crown could be in order.
It also highlights the need for judges to clearly address any specific submission that the prosecution case is “overwhelmingly strong” within the meaning of s 35(4) so that offenders may understand why they did not receive a ‘normal’ discount for their plea of guilty.
In Newby the Court held that the primary judge erred in awarding a discount of 20% (at [75]) and resentenced the offender to a head sentence of 24 years’ imprisonment (reduced from 25 years) in light of his plea of guilty and some co-operation. This resulted in only a 4% reduction in the overall sentence by the Court of Appeal.
One challenge that is apparent from the approach taken in Newby is that it may have the effect of encouraging an accused to pursue a case to trial even where acquittal is “realistically unlikely”. Faced with such a scenario, an accused person may well decide that a remarkably low discount on sentence is not worth the loss of the possibility (however remote) of an acquittal at trial. Indeed, as noted in Coggan v The Queen [2013] ACTCA 49 at [20], it is not unknown for an apparently overwhelming prosecution case to fail.
Further, even where a prosecution case is overwhelmingly strong, a plea of guilty still affords the range of factors that form part of the utilitarian benefit of a plea, namely, as discussed in Blundell at [13]:
The utilitarian value includes a range of factors including savings of time and cost, relieving witnesses from giving evidence (often being people who will find giving evidence very difficult) and the avoidance of often prolonged pre-trial applications …
Nevertheless, I am bound to apply the principles outlined in Newby and must not “make any significant reduction” in sentence on account of the plea: s 35(4) of the Sentencing Act. In my view, however, and for the reasons I have expressed above, on the facts of this particular case and the significant utilitarian benefit in not requiring the Court to view child exploitation material a 15% discount for the plea of guilty is not a “significant” reduction in sentence where otherwise the discount would have been 25%.
While the Court in Newby afforded a lower percentage discount, in my view, what may be described as a significant discount is a matter that turns on the facts of a particular case. The Court in Newby did not state that a discount greater than 4% could never be awarded, or that any particular mathematical range was required. Rather, the Court held that in light of the strength of the prosecution case which included extensive admissions, an eyewitness account and DNA evidence 4% was an appropriate discount in that particular case.
Separately, I note that the Court in Newby was concerned with the impact of a discount on a head sentence of 25 years. Viewed in this way, a discount of 20 to 25% would be a four to five year reduction in sentence, which is objectively significant. In this case, I am considering the impact of a discount on a head sentence that will likely be a matter of months, making the difference between a 5% or 15% discount to the head sentence or non-parole period a matter of weeks or days.
Indeed, in Williams the Court of Appeal was concerned with a decision where the sentencing judge had awarded a discount of “approximately 15%” for a plea of guilty that occurred at an early opportunity. Before the sentencing judge, counsel for the defendant had not advanced a submission against the proposition that the prosecution case was overwhelming. On appeal a mathematical error made by the sentencing judge in relation to the discount was corrected, however no issue was taken by the Court in relation to the 15% discount. No comment was made by the Court of Appeal suggesting that the adoption of a 15% discount in such a case was outside of an appropriate range. Rather, as I highlighted above at [122], the Court indicated in its reasons that the case was an indication that defence counsel should be careful in advising clients that they would receive a 20 to 25% discount for an early plea of guilty where the prosecution was submitting that a case was overwhelmingly strong.
I therefore adopt a discount of 15% rather than 25% for the offender’s plea of guilty in light of Newby and s 35(4).
Discount for Co-operation
Counsel for the offender submitted in further written and oral submissions that if the offender was disentitled to a significant discount for his plea of guilty by operation of s 35(4) due to the admissions he made to the police in the search warrant interview, then regard must be had to whether he is entitled to a discount under s 36 of the Sentencing Act. Given my findings above, it is appropriate to consider a standalone discount under s 36.
Section 36 relevantly provides:
Reduction of sentence—assistance to law enforcement authorities
(1) This section applies if—
(a) an offender is convicted or found guilty of an offence; and
(b) the offender assisted, or undertook to assist, law enforcement authorities in—
(i) preventing, detecting or investigating the offence or any other offence; or
(ii) a proceeding in relation to the offence or any other offence.
Counsel submitted that the offender made admissions to possession of the USB and knowledge of its contents and submitted that this is a form of assistance to law enforcement authorities in investigating the offence.
I note that the Court in Newby discussed assistance to authorities in the context of admissions, stating at [63]-[64]:
The Crown placed some weight on the following observations in Browning v R [2015] NSWCCA 147 (Browning) per Garling J with whom Gleeson JA and Johnson J agreed at [123], concerning the substantially identical provision to s 36 of the CSA in s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW):
Here, the evidence did not suggest any provision of assistance to authorities. It merely suggested that the applicant, having been arrested, agreed to participate in an electronically recorded interview, and gave an account of the incident. Beyond that, there is no factual material to support any conclusion of co-operation or assistance. The mere fact that an applicant participates in an electronically recorded interview about the incident, the subject of the offence, even though not obliged to, is not a matter which is entitled to any weight, of itself, in mitigation of any sentence. If it were otherwise one would, in effect, be running the risk of imposing a punishment upon someone who exercised their right to silence.
The reasoning in Browning may be accepted. But that is not the present case, and the reasoning does not so readily apply either to surrender or to participation in forensic procedures that can be compelled in the absence of cooperation. There is at least a discretionary basis for not using s 36 to give a discount for assistance merely because a suspect who becomes a defendant foregoes their right to silence by voluntarily participating in a record of interview.Admissions or confessions will generally be taken into account positively on sentence, as well as negatively to the extent that the seriousness of the offending or some other feature of is revealed, but this is best not done under the rubric of assistance for the reasons that Garling J expresses in Browning.
(emphasis added)
I note that the comments in Newby in relation to participation in a record of interview were made by the Court in obiter. I further note that there may be some tension with the Court’s statement that “admissions or confessions will generally be taken into account positively on sentence … but this is best not done under the rubric of assistance” where, as in this case, the admissions have created a situation where the crown case is “overwhelmingly strong”. Regarding [63]-[64] of Newby, counsel for the prosecution and for the offender both submitted that this case is distinguishable from the case of Browning. I accept that submission. I further accept counsel for the prosecution and counsel for the offender’s submission that the legislative regime in the ACT differs from that of NSW.
The Court in Newby did not consider the later NSW Court of Criminal Appeal decision which discussed discounts for admissions: Le v R [2019] NSWCCA 181 (Le). I note that the equivalent NSW provision has similar wording to s 36, nevertheless, as discussed above, it must be said there is a different legislative context. Counsel for the prosecution submitted that Le could be distinguished from the present case given that different legislative context. Given that submission, and the fact that the Court in Newby did not consider Le it is neither necessary nor appropriate to have further regard to that decision.
In their further written and oral submissions the prosecution expressly conceded that the offender “should receive credit for his co-operation with authorities pursuant to s 36” of the Sentencing Act.
In conclusion, the legislative regime in the ACT differs from that in NSW, specifically NSW does not have a s 35(4) equivalent. Counsel for the offender referred to the NSW regime and the mandated discounts for pleas of guilty depending on when the plea is made. Given the different legislative regimes, the prosecution’s express concession that s 36 applies on the facts of this case to the admissions made by the offender, and the fact that otherwise the admissions will not be taken into account “positively on sentence”: Newby at [64], it is appropriate, in my view, to accord the offender a discount on account of his assistance to the authorities.
While on one view it may be argued that this “punishes” (see: Browning) individuals who choose to exercise their right to silence, the alternative would be a criminal justice system where offenders who make admissions or confessions against their interest are disentitled to significant discounts for a plea of guilty and are not otherwise entitled to a discrete discount for the admissions they have made: s 35(4) Sentencing Act; Newby at [47].
Taking the above matters into account and the extent of the admissions in this case it is appropriate, in my view, to award a 10% discount on sentence to the offender pursuant to s 36.
Time in Custody
The offender has spent 88 days in custody referable to these offences.
Comparable Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. I also note s 33(1)(za) of the Sentencing Act. I further note that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
The prosecution referred me to statistics from the ACT Sentencing Database which indicate that all sentences imposed for offences under s 92E(2) of the Crimes Act were for terms of imprisonment from 13 months to six years. The prosecution also referred me to some statistics concerning s 55(2) of the Crimes Act (which is the equivalent provision to s 92E(2) after the section was moved in the Crimes Act), namely, that only 80% of sentences imposed for those offences involve imprisonment and are “often in the range of one and a half to three and a half years”. In relation to the statistics, Counsel for the offender submitted that bare statistics are not very helpful, but that the offence provisions are the same and that the statistics should be considered together.
The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
I was referred to five cases by the prosecution in relation to the act of indecency and sexual intercourse offences. The relevant facts of those cases are summarised below:
(a)R v Payne [2015] ACTSC 345 where the offender pleaded guilty to two offences (engaging in sexual intercourse with a person under 16 years of age and committing an act of indecency on a person under 16 years of age). The offences related to an incident where the offender digitally penetrated the victim’s vagina and then later grabbed her bottom over her clothing as she was leaving. The offender was sentenced to a head sentence of three years imprisonment with a non-parole period of one year and 10 months. But for the plea of guilty, the sentencing judge indicated that an additional 7 month period would have been added to the head sentence. The prosecution submitted that the offending in Payne is less serious than the current matter as it did not involve penile penetration of the anus, was an isolated incident and did not “carry the risk of transfer of disease”.
(b)R v Stone [2016] ACTSC 231 where the offender was found guilty of seven counts of indecent assault of a child. The maximum penalty at the relevant time was five years imprisonment. The victim was a family friend of the offender, with the offending occurring during two incidents over a two-year period while the child was seven and nine years old. The first instance occurred when the offender fondled the child’s penis and fellated him while masturbating. The offender returned later to again fondle the child’s penis. The second incident occurred approximately two years later while the victim was asleep at the offender’s house. On that occasion the appellant fondled the child’s penis and fellated the child while masturbating. The offender later returned, fondled the child’s penis and attempted to insert his penis into the child’s anus. There was a significant impact on the victim. The offender was 73 at the time of sentence, and had some criminal history. He was held to have good prospects of rehabilitation and suffered from grave health issues. There was a significant delay between the offending and the court process. The offender was sentenced to three years and nine months imprisonment, to be suspended after nine months and the offender placed on a good behaviour order. The prosecution submitted that the offending in Stone was less serious than in this case as there was only one occasion of attempted anal penetration. The prosecution also noted that the maximum penalty was lower (five years compared to 10/14 years).
(c)R v KS [2018] ACTSC 220 where the offender pleaded guilty to one count of indecent assault of a child under 16 years. The offence related to a single incident where the offender forced a child to perform fellatio on him. The offence carried a maximum penalty at the relevant time of five years imprisonment. The victim was aged between six and eight and the offender between 33 and 34 at the time of the offence. The offending involved a gross breach of trust and had a significant adverse impact on the victim. At the time of sentencing, the offender was 65 years old was remorseful and had no relevant criminal history and was of prior good character. The offender was sentenced to 12 months imprisonment suspended after three months with the offender being placed on a good behaviour order. The prosecution submitted that the offending in the case, was less serious than the current matter and involved a much smaller maximum penalty.
(d)R v Trezise [2018] ACTSC 135 where the offender pleaded guilty to nine counts of indecent assault of a child. The maximum penalty at the relevant time was five years. The offender was the leader of a youth group and committed the offences between 1974 and 1977 against three children who were members of the group. The offending generally included touching of the children’s genitals both inside and outside of clothing, sometimes while the offender masturbated himself. In relation to one of the victims, the offender also kissed the victim. The offending was held to be at a low-end of objective seriousness but did involve a significant breach of trust. Two of the victims reported adverse impacts from the offending. The offender was 79 years old at the time of sentence and had some criminal history, including offences for which he had received a good behaviour order in 1975. The offender was himself a victim of child sexual abuse, was remorseful and had declining health. There had been a significant delay between the offending conduct and the sentence. The offender was sentenced to three years, two months and six days suspended after six months with the offender entering into a good behaviour order. The prosecution submitted that this sentence was an example of one imposed for “low end offending on three victims when the maximum penalty was only 5 years imprisonment”.
(e)R v Marsh [2019] ACTSC 251 where the offender pleaded guilty to five counts of indecent assault of a child. The maximum penalty at the relevant time was five years imprisonment. The offender was in his mid-30s and was the victim’s football coach. The offending related to five instances of sexual abuse which included the offender touching the victim’s testicles, and, on two occasions the digital penetration of the victim’s anus and the victim masturbating the offender. The offender had no relevant criminal history, was 73 years old at the time of sentence and was not in good health. The offender’s mother was reliant on him for care. The offender was sentenced to four years imprisonment, with a two year non-parole period. The prosecution submitted that Marsh involved offending that was less serious than the current matter as it did not involve penile-anal penetration and did not carry the resulting risk of disease transfer. The prosecution also noted that the maximum penalty was lower, and the offender had received a 5% discount for pleading guilty to the offences.
As I outlined above, counsel for the offender referred me to several cases where a sentence other than a full-time custodial sentence was imposed for sexual offences. I have set out the relevant summaries of those cases below:
(a)R v Wyper (No 2) [2017] ACTSC 103 (Wyper (No 2)) which concerned an offender found guilty following a trial of engaging in sexual intercourse without consent. The offender had not shown any remorse, and had held the complainant down and inflicted some injuries during the assault. The offender was sentenced to two years and six months imprisonment to be served by way of an ICO. An additional community service condition was imposed, requiring the offender to perform 100 hours of community service within 12 months. The Court of appeal rejected a crown appeal against sentence on the ground that the sentence was not manifestly inadequate: see Wyper v The Queen [2017] ACTCA 59.
(b)R v DU (No 4) [2020] ACTSC 174 (DU (No 4)) where the offender was sentenced to a total of three years imprisonment to be served by way of an ICO for four counts of sexual intercourse with a young person under special care. The charges carried a maximum penalty of ten years imprisonment and the offender was 40 years old at the time of offending and the victim 16. The offender was the victim’s ten-pin bowling coach and was also a friend of her family. The offending conduct related to four occasions of penile-vaginal sexual intercourse, with the offender ejaculating on some of the occasions.
(c)The third example counsel for the offender pointed to was the case of R v DK [2016] ACTCA 7 (DK) which was the appeal judgment of a prosecution appeal against the underlying sentence. The offender in that case had pleaded guilty to five counts of indecency committed upon his 13 year old and 10 year old stepchildren. The incidents giving rise to the charges involved the stepfather going into his stepchildren’s bedrooms while they were asleep and putting his hands inside their clothing and fondling their genitals. The offender admitted to about 10 separate incidents involving his stepdaughter and 12 to 15 involving his stepson. A total sentence of 18 months was imposed with the sentences immediately suspended, with an appeal against sentence being dismissed by the Court. Counsel for the offender submitted that this case was an example of the range of sentences imposed by the Court for these types of offences, and that there is no “incontrovertible rule that a sentence of imprisonment imposed [in cases of this type] must be served by way of fulltime custody”.
The prosecution submitted that each of the cases referred to by counsel for the offender could be distinguished from the facts of this case. The prosecution submitted:
(a) In relation to Wyper (No 2) that the case concerned an isolated instance of digital penetration with an adult victim, which did not carry with it a risk of pregnancy or disease.
(b) In relation to DU (No 4) that the offending involved four acts of sexual intercourse which occurred over a far shorter period (one month), the offender pleaded guilty and had good prospects of rehabilitation and the victim was 16 years of age (rather than 12-13 as in this case).
(c) In relation to DK that while the offending involved two victims, it did not involve penetration of either child and the offender had pleaded guilty and sought counselling, improving that offender’s prospects of rehabilitation as compared to the offender in this case.
Ultimately, the prosecution submitted that the Court would fall into error were the sentence ordered to be served by way of an ICO.
In relation to the child exploitation material offence, counsel for the offender referred me to four comparable cases: R v White [2016] ACTSC 237; R v Kelly [2014] ACTSC 117 (Kelly); R v Francis [2021] ACTSC 212 and R v DB [2015] ACTSC 28. All four cases concerned a greater number of files/images. In three of the cases, the period of imprisonment imposed was immediately suspended. In the remaining case (Kelly), the offender was found guilty of three counts of possession of child exploitation material relating to 28 images and 3 other files which he had downloaded inadvertently when downloading a large quantity of adult pornography. The offender had become aware of the child exploitation material and chose to keep it. The offender had an extensive criminal history, including (most relevantly) a 2004 conviction for possession of child pornography. The offender had earlier been sentenced by a different judge for separate child sex offences to four years imprisonment with a two year and six month non-parole period. In relation to the child exploitation material offences, the offender was sentenced to nine months imprisonment, two months imprisonment (to be served concurrently) and two months imprisonment (to be served concurrently) on each of the charges respectively. The overall sentence imposed was made slightly cumulative on the earlier sentence and his current non-parole period was extended by three months.
The prosecution referred me to eight cases concerning offenders sentenced for child exploitation material offences: R v Appleby [2021] ACTSC 55; R v Barber [2021] ACTSC 78; R v Davison [2020] ACTSC 272; R v Mitchener [2019] ACTSC 351 (Mitchener); R v Walker [2019] ACTSC 172; R v Simonetti [2018] ACTSC 31; R v Sutton [2017] ACTSC 95 and R v Phoumthipphavong [2021] ACTSC 97 (Phoumthipphavong). Counsel for the offender correctly submitted that these cases were generally not comparable to the present case on two bases. First, counsel for the offender submitted that most of the cases involved a far greater number of child exploitation material files. Second, counsel for the offender submitted that most of the offenders had also been convicted of Commonwealth offences which had a higher maximum penalty than the present charge.
Similar to the cases provided by counsel for the offender, most of these cases concerned a far greater number of child exploitation material files and, accordingly, concerned more serious instances of this type of offending. As the cases demonstrate, there are a wide range of sentences imposed for these types of offences depending on the number of child exploitation material files and what conduct those files relate to.
Of the cases referred to by the prosecution, Phoumthipphavong was the case with the closest number of child exploitation material files to the present matter. In that case, the offender pleaded guilty to one charge of possession of child exploitation material. There were no other charges brought against the offender. The charges related to 28 non-duplicate image files and 15 non-duplicate video files. Burns J observed at [7] that:
It was accepted by the Crown that in determining the objective seriousness of this particular offence, I should accept that the quantity of files was relatively low compared to other cases of similar offending which come before this Court but I do observe that a number of the files which have been referred to contain material of particular heinousness.
At the time of the offence, the offender was 18 years old and had mitigating personal factors, including that he suffered from ADHD which the sentencing judge accepted (to a minor extent) had influenced the commission of the offence. The offender was sentenced to 12 months imprisonment to be served by way of an ICO.
In relation to Phoumthipphavong, counsel for the offender submitted that as most of the files contained child exploitation material relating to children aged between four and eight the case could be distinguished from the present matter.
In Mitchener, the offender pleaded guilty to and was sentenced for to one count of using a carriage service to access child abuse material contrary to s 474.19(1) of the Commonwealth Criminal Code and one count of possess child exploitation material. The possession offence related to 56 images, 20 in category 1, 2 in category 2, 7 in category 3 and 8 in category 4 (for some reason which is not explained in the sentencing judgment 19 files were not categorised). A 25% discount to the sentence was given for the offender’s early plea of guilty. The offender was sentenced to 9 months imprisonment for count 1 and 6 months imprisonment for count 2, with the overall head sentence being 12 months. The sentence was suspended after three months with the offender placed on a good behaviour order.
In relation to Mitchener, counsel for the offender submitted that the offending involved a greater number of images and the Commonwealth offence related to the transmission of child exploitation material.
Overall, counsel for the offender submitted that the most comparable case to the present matter, was Kelly which I discussed above at [149].
Impact of COVID-19 on Sentencing
Counsel for the offender referred to the ACT Court of Appeal decision in Bloxsome v The Queen [2020] ACTCA 52 (Bloxsome), where the Court considered the impact of COVID-19 when resentencing the offender at [49]-[54]. In that decision, the Court noted that it was “impossible” to predict how the pandemic would affect the offender while he was in custody: [49]. The Court went on, however, and reduced the sentence that it would otherwise have imposed taking into account the risk to the offender’s health were COVID-19 to reach the prison, the resulting anxiety that would cause and the potential impact of cessation of visits in prison (although that latter consideration was moderated by the fact that the offender did not receive many visits prior to the pandemic).
The Court in that case reduced the sentence it would have otherwise imposed by three months (with a corresponding reduction in the non-parole period): see Bloxsome at [54].
Counsel for the offender submitted that the current COVID-19 situation is different to that described by the Court in Bloxsome. In particular, counsel submitted that we are now in a position where COVID will circulate more readily in the community and there have been several positive cases amongst staff of ACT prisons and prisoners. On that basis, counsel for the offender submitted that the offender will face limits to visits from family members, noting, in particular, that if his mother and brother are living in a nursing home it is unclear how they will be able to visit him at all given the vulnerable setting they will be living in.
Counsel for the offender further submitted that the offender, as an older person with pre-existing medical issues is more vulnerable to contracting COVID-19 and that prison is a high risk location. While noting that the offender is vaccinated, counsel for the offender also referred me to a recent publication from the Scientific Advisory Group for Emergencies (England) titled: Duration of Protection of COVID-19 vaccines against clinical diseases and dated 9 September 2021. That report (in the offender’s submissions) noted that the efficacy of Astra Zeneca against symptomatic disease started waning from ten weeks after the second dose and (to a lesser extent) the efficacy of vaccination against serious disease also wanes over time.
The prosecution submitted that there was no evidence that the prison was a place of particular risk for the contraction of COVID-19 given the spread through the community. The prosecution further submitted that the authorities can appropriately manage COVID outbreaks in prison.
In my view, in accordance with Bloxsome, it is appropriate in this matter to take into account the impact of COVID-19 on sentence. Further, I accept that the consequences may be more severe where elderly people contract COVID-19.
Most of the COVID submissions predated the changes to the booster rollout that occurred in late 2021 and early 2022. Those changes now mean that the offender will be eligible for his booster dose significantly earlier.
In counsel for the offender’s further written submissions dated 28 March 2022, counsel submitted that the offender’s health conditions will continue to make the offender more vulnerable to the virus. Counsel for the offender also referred me to a NSW District Court Case: R v McCall [2022] NSWDC 78 where Haesler DCJ considered the restrictions in family visits caused by the pandemic as relevant to sentence (at [70]). Counsel for the offender generally pressed the submissions made at the earlier sentencing hearing.
I confirm that I have taken into account the impact of COVID-19 in sentencing as discussed above.
Delay
The prosecution submitted that there has been a delay of approximately 35 years between the offences occurring and the offender being sentenced for his conduct. Accordingly, the prosecution submitted that any rehabilitation or uncertain suspense experienced by the offender will need to be taken into account citing R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 at [16].
Impact on Family Members
In addition to the material contained in the PSR and ICO Reports concerning the impact of incarceration on the offender’s family members, I have before me letters written by the offender’s brother and mother outlining how the offender’s incarceration would affect them.
Counsel for the offender submitted that, pursuant to s 33(1)(o) of the Sentencing Act, the Court may take into account the “probable effect that any sentence … would have on any of the offender’s family or dependants”.
In support of their ultimate submission, counsel for the offender referred to the decision in R v BC (No 4) [2021] ACTSC 119 at [65]-[93] where I considered the provision. Counsel for the offender submitted that the following principles emerge from that judgment. First, that the Court is required to consider the impact, but the weight given to that factor is a matter for the Court: at [73]. Second, that there is no requirement that exceptional circumstances exist before the impact can be taken into account: at [78]-[82]. Third, that it is not appropriate to provide a defined discount on sentence as this would offend the instinctive synthesis approach: at [92]. I note that the decision in BC was appealed, and the non-parole period increased, nevertheless, the Court of Appeal did not overturn the principles as such outlined above, rather the application in the instant case.
Counsel for the offender submitted there is nothing in s 33(1)(o) that would prevent a court from considering how a sentence should be served, and that the likely impact on the offender’s family members supports their submission that any sentence be served by way of an ICO.
In assessing the impact on the offender’s family members, counsel for the offender submitted at the hearing that if the offender is sentenced to a term of imprisonment there will be no other option but for the offender’s mother (aged approximately 88) and brother (aged approximately 69) to go into full-time care in a nursing home. This would have a significant impact on them both.
Subsequently, on 4 March 2022, counsel for the offender indicated that the brother would have to be placed into care in any event as he had been diagnosed with a degenerative terminal condition and that the brother would need full time care (T3.6-7, 4 March 2022).
In further written submissions dated 28 March 2022, counsel for the offender indicated that arrangements had been made for the offender’s mother and brother to be placed into an aged care facility. Counsel for the offender submitted that the offender is “very unlikely to have visits from them while he is in prison … given the COVID-19 situation, and the care aged care facilities are taking with their residents”.
The prosecution submitted that it is appropriate for the Court to take into account the effect of the sentence on the offender’s family.
It is appropriate that I take into account in sentencing the offender the clear impact of sentencing on the offender’s mother and brother.
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
In cases concerning the sexual abuse of children, deterrence is of particular importance in sentencing. This has been underlined by the courts in many cases. In R v TW [2011] ACTCA 25; 6 ACTLR 18, Refshauge J (Lander J agreeing) at [21] adopted the approach of Maxwell J in Fisher v The Queen (1989) 40 A Crim R 442 where his Honour said at 446:
... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.
(emphasis added)
Similar remarks were made in R v BJW [2000] NSWCCA 60; 112 A Crim R 1, where Sheller JA stated at [20]:
The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the child.
(emphasis added)
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
It is worth pausing here to note that s 34A of the Sentencing Act states that when a court is sentencing an offender for sexual offences against a child, a court must:
a) sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and
b) not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence
I have already indicated the relevant maximum penalties that applied at the time the offences were committed: see above at [1]. I have discussed s 34A(b) above at [101].
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 (Cahyadi) at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
In relation to concurrency, the prosecution submitted that the sentence for the child exploitation material offence should be imposed partly cumulatively rather than concurrently. I consider that it should be partly cumulative. The prosecution correctly submitted that the sentences imposed for the act of indecency and sexual intercourse with a young person offences should be partly concurrent to avoid a “crushing” sentence.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO.
Intensive Correction Order Assessment Report
It is appropriate that I give consideration to the sentence being served by way of intensive correction order (ICO).
The ICO assessment report (ICOAR) concluded that the offender is suitable for an ICO. The report includes the following additional detail to the information contained in the PSR.
The ICOAR notes that the offender’s response to supervision during the assessment period was satisfactory, with the offender attending all appointments and, in addition to those appointments, was also contactable on his telephone during the relevant period.
The offender is reliant on a Centrelink carer’s allowance as his only source of income, but that the offender described his financial management as sufficient despite his home loan and other minor debts.
Both the offender’s mother and brother (who also reside at the home) have provided their consent for the offender to reside there if he is sentenced to an ICO. Though since this time, arrangements have been made for the offender’s mother and brother to be placed into an aged care facility.
If the offender is sentenced to an ICO, ACT Police have requested that additional conditions be imposed as part of the ICO conditions, namely, that the offender is “not to be in the company of a person under 18 years of age or within 100 metres of a school”.
The ICOAR noted that the offender has been assessed at a low risk of general reoffending and that a STATIC-99 assessment (itself conducted on 11 October 2021) indicated that the offender was at an average risk of sexual reoffending requiring some form of intervention.
In relation to the STATIC-99 assessment, counsel for the offender submitted that the assessment tool was a “very blunt tool” and that there was a limited basis on which a STATIC-99 assessment is made and that the Court should not put much weight on the risk of reoffending calculated using the tool. I have referred to the blunt nature of assessments of such a nature at [95].
In response to that submission, the prosecution submitted that the offender went on to commit a further relevant offence, namely possessing child exploitation material and that this would have been “considered by the pre-sentence report author at the time of concluding that he [the offender] was an average risk”. I take into account the submissions of both the prosecution and the offender in this regard. Both are valid.
Counsel for the offender submitted that, in the circumstances of the case, when sentencing the offender, I should do so by way of an ICO. Counsel for the offender submitted, in particular, that the offender’s lack of criminal record, prior good character and his role as a full-time carer for his mother and brother mean that an ICO should be imposed.
Counsel for the offender referred me to comments of Refshauge J in R v Ngerengere (No 3) [2016] ACTSC 299 where his Honour discussed ICO’s in detail at [17]-[24]. Counsel also referred me to comments made by Refshauge J in Wyper (No 2) at [7]-[8] where his Honour discussed how serving a sentence by way of an ICO was a punitive sentence.
Counsel for the offender also provided me with a list of cases where an ICO was imposed when sentencing offenders for sexual offences, I have already discussed those cases in detail above at [86].
The prosecution submitted that due to the objective seriousness of the offender’s conduct, a full-time custodial sentence is warranted. In relation to the submission concerning the offender’s poor health, the prosecution submitted that his health conditions are no more severe than other individuals around his age, and that they can be appropriately managed in a custodial setting.
Sentence
It must be recognised by the Court that the offences committed against the victim have had a significant and grave impact upon him. Additionally, the Court underlines that the child exploitation offences are not victimless crimes. Both the short and long-term consequences of being a victim must be acknowledged for the offences.
At this juncture it is relevant to refer to the sentencing principles discussed in CX v The Queen [2017] ACTCA 37 where the Court stated at [39].
An offender’s age and physical and mental condition are relevant to the sentence imposed, including the nonparole period: s 33(1)(m) Sentencing Act. Imprisonment may be a greater burden because of ill health suffered by an older offender. However, a sentence (including the nonparole period) must appropriately reflect a variety of sentencing purposes, including those that relate to the objective culpability of the offender’s conduct: R v Smith (1987) 44 SASR 587; 589–590 per King CJ; Holyoak v The Queen (1995) 82 A Crim R 502, 507–508; R v Walsh [2009] NSWSC 764.
The Court went on to refer to GS v The Queen [2016] NSWCCA 266 where Gleeson JA (Fagan and N Adams JJ agreeing) stated at [94]:
... I am mindful that the need for general deterrence should be viewed in the light of the applicant’s age and ill health and the real risk that he will spend the remainder of his life in custody. However, the applicant’s offending, particularly considering the breach of trust which it involved, is of such a degree of seriousness that, taking into account all the circumstances, I do not regard the 2014 sentences as plainly unreasonable or unjust.
Fagan J (with whom N Adams J also agreed: see [103]) went on to state at [99]-[100]:
... It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him.
The necessity for the courts to impose penalties which reflect the community’s abhorrence of these crimes and which otherwise fulfil the purposes prescribed in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender. This was considered at length in Holyoak v R (1995) 82 A Crim R 502 at 507 – 508, again in R v DB [2001] NSWCCA 320 at [17], [18] and more recently in Wright v R [2016] NSWCCA 122 at [95] – [97] …
(emphasis added)
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters relevant to the offender, including the evidence as to his mental condition.
In Dawson v The Queen [2019] ACTCA 9 (Dawson), the Court of Appeal set out the approach that should be taken regarding concurrency and accumulation when sentencing an offender for multiple offences at [37]:
As to concurrence and accumulation, the principles were set out in O’Brien at [26], where this Court said:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at [623]-[624].
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at [63].
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
It has long been recognised by courts that the severity of a sentence of imprisonment is not linear.
In R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[18] (R v MAK), the New South Wales Court of Criminal Appeal discussed two issues under the rubric of the totality principle.
First, the Court outlined that the severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence.
The Court in R v MAK referred to R v Clinch (1994) 72 A Crim R 301 (R v Clinch) at 306-307, where Malcolm CJ stated, “a sentence of five years is more than five times as severe as a sentence of one year”. R v MAK and R v Clinch were subsequently referred to in Gore v R; Hunter v R [2010] NSWCCA 330 at [42]; Cavanagh v The Queen [2009] NSWCCA 174 at [16]. Nevertheless, on occasion very long sentences are required and it is not possible to determine whether inadequate weight has been given to what was said in R v Clinch until the court also reflects on other factors: Hampton v The Queen [2010] NSWCCA 278; 208 A Crim R 478 at [36]; see also Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1, Latham J (RS Hulme J agreeing) at [201], Basten JA at [185]-[189] dissenting.
The second issue, referred to by the court in R v MAK, above, at [17], is that the principle of totality has developed, in part, to avoid a court imposing a “crushing sentence”: see also the observations of King CJ in R v Rossi (1988) 142 LSJS 451 at 453.
Finally, in sentencing it is important to underline the countervailing sentencing factors discussed by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. There, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph is often quoted because it usefully summarises the nature of the sentencing discretion:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
The balance struck by a sentencer as an ‘instinctive synthesis’ is not used to “cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian at [37].
To achieve what I consider to be an appropriate overall sentence, I will deal with the charges otherwise than in numerical order.
The appropriate sentence for count 14 sexual intercourse with a young person (SCCAN2020/107) is two years of imprisonment. The sentence will be backdated to commence on 13 March 2022 to account for the time the offender has already spent in custody.
The appropriate sentence for count 16 sexual intercourse with a young person (SCCAN 2020/110) is two years and four months of imprisonment.
The appropriate sentence for count 13 act of indecency on a young person (SCCAN 2020/106) is 12 months imprisonment.
The appropriate sentence for count 15 act of indecency on a young person (SCCAN 2020/108) is 12 months imprisonment.
The appropriate sentence for count 17 act of indecency on a young person (SCCAN 2020/111) is 12 months imprisonment.
The appropriate sentence for count 2 act of indecency on a young person (SCCAN 2020/95) is 12 months imprisonment.
The appropriate sentence for count 11 act of indecency on a young person (SCCAN 2020/104) is 12 months imprisonment.
The appropriate sentence for count 12 act of indecency on a young person (SCCAN 2020/105) is 12 months imprisonment.
The appropriate sentence for the offence of possess child exploitation material (CC2019/13413) is 4 months imprisonment, reduced to 3 months on account of the discount for the plea of guilty and the standalone discount under s 36. Pausing here I note that the difference between a 5% or 15% discount for a plea of guilty would be 12 days.
Overall, there will be a sentence of five years imprisonment, with a non-parole period of three years taking into account the appropriate period of concurrency and accumulation and the principle of totality. There is significant partial concurrency relating to the acts of indecency offences associated with the charges of sexual intercourse in accordance with the principle of totality as discussed above in my discussion of Dawson and Cahyadi.
The non-parole period outlined above is 60% of the head sentence. This figure falls within the “usual” range adopted in this jurisdiction of 50-70%: Zdravkovic v The Queen [2016] ACTCA 53 at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v the Queen [2014] ACTCA 9 at [20].
As the Court of Appeal noted in Henry v The Queen [2019] ACTCA 5 at [36]-[37], citing with approval Millard v The Queen [2016] ACTCA 14; R v Bernath (1997) 1 VR 271 and Toumo’ua, the appropriate non-parole period is not decided by some mathematical relationship. Rather, a Court must consider a range of factors in determining the appropriate non-parole period including the need for rehabilitation, and general and specific deterrence. The Court in Henry summarised the view of the Court in Toumo’ua, stating at [37]: “the need for rehabilitation had to be balanced against the requirement that the sentence be of a severity appropriate in the individual case”.
In my view, taking into account the offender’s guarded prospects of rehabilitation and the importance of general and specific deterrence in this case, a three year non-parole period is appropriate.
As outlined in s 78 of the Sentencing Act, I can only impose an ICO for an overall sentence of four years or less. Accordingly, having come to the view that, given the seriousness of the offending in this case, the overall sentence imposed will exceed four years I will not proceed to further consideration of the sentence being served by way of an ICO. The sentence must be served by way of full-time imprisonment.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of sexual intercourse with a young person (SCCAN2020/107) the offender is sentenced to two years imprisonment commencing on 13 March 2022 and expiring on 12 March 2024.
(c)In respect of the offence of sexual intercourse with a young person (SCCAN2020/110) the offender is sentenced to two years and four months of imprisonment commencing on 13 November 2022 and expiring on 12 March 2025.
(d)In respect of the offence of act of indecency on a young person (SCCAN2020/106) the offender is sentenced to 12 months imprisonment commencing on 13 November 2024 and expiring on 12 November 2025.
(e)In respect of the offence of act of indecency on a young person (SCCAN2020/108) the offender is sentenced to 12 months imprisonment commencing on 13 January 2025 and expiring on 12 January 2026.
(f)In respect of the offence of act of indecency on a young person (SCCAN2020/111) the offender is sentenced to 12 months imprisonment commencing on 13 March 2025 and expiring on 12 March 2026.
(g)In respect of the offence of act of indecency on a young person (SCCAN2020/95) the offender is sentenced to 12 months imprisonment commencing on 13 May 2025 and expiring on 12 May 2026.
(h)In respect of the offence of act of indecency on a young person (SCCAN2020/104) the offender is sentenced to 12 months imprisonment commencing on 13 September 2025 and expiring on 12 September 2026.
(i)In respect of the offence of act of indecency on a young person (SCCAN2020/105) the offender is sentenced to 12 months imprisonment commencing on 13 January 2026 and expiring on 12 January 2027.
(j)In respect of the offence of possess child exploitation material (CC2019/13413) the offender is sentenced to 3 months imprisonment commencing on 13 December 2026 and expiring on 12 March 2027.
(k)I set a non-parole period of 3 years, commencing on 13 March 2022 and ending on 12 March 2025.
(l)I mark the offender as a prisoner at risk.
| I certify that the preceding two hundred and twenty-nine [229] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Andrew Ray Date: 16 June 2022 |
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