R v George Young (a pseudonym)

[2019] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:	R v George Young (a pseudonym) [2019] NSWDC 55
Hearing dates:	1 March 2019
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of seven years with a non‑parole period of four years four months.
Catchwords:	CRIMINAL – sentence – Sexual intercourse child under 10 - groom child under 14 – aggravated act of indecency child under 16 - step-father – Form 1 matters - admission of unknown guilt - Ellis discount - immediate admissions - very early guilty plea - assessment of objective serious - victim impact - mental illness – remorse - aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Alvares v R (2011) 209 A Crim R 297 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Butters v R [2010] NSWCCA 1 Cameron v The Queen (2002) 209 CLR 339 Clarkson [2011] VSCA 152 CMB v Attorney General for the State of NSW [2015] HCA 9; (2015)256 CLR 346 Courtney v R [2007] NSWCCA 195 DPP (NSW) v Mawad [2015] NSWCCA 227 DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 Hameed v R (2001) 123 A Crim R 213 Hili v The Queen (2010) 242 CLR 520 Hoare v The Queen (1989) 167 CLR 348 Imbornone v R [2017] NSWCCA 144 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Newman v R [2018] NSWCCA 208 Nguyen v The Queen [2016] HCA 17 Panetta v R [2016] NSWCCA 85 Pfitzner [2010] NSWCCA 314 R v AA [2017] NSWCCA 84 R v Carter [2003] NSWCCA 243 R v Gavel [2014] NSWCCA 56 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v MAK [2006] NSWCCA 381 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 R v Winchester (1992) 58 A Crim R 345 Roff v R [2017] NSWCCA 208 Ryan (2001) 206 CLR 267 Sutton v R [2004] NSWCCA 225 Thompson (2000) 49 NSWLR 383 Weininger v The Queen (2003) 212 CLR 629 Williamson v R [2015] NSWCCA 250 Windle v R [2011] NSWCCA 277
Texts Cited:	Does the Custody Based Intensive Treatment program for sex offenders reduce reoffending? Hallstead, I. (2016) (Crime and Justice Bulletin No 193. Sydney: NSW Bureau of Crime Statistics and Research The social dynamics and impacts of institutional child sexual abuse - Dr Kenny D.T, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8. What you can change and what you can’t, Martin Seligman, Random House, 1994.
Category:	Sentence
Parties:	George Young (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser (Public Defender for the Offender)   Solicitors: Mr M Ward (for the Offender) Ms A Kerr (for the Director of Public Prosecutions)
File Number(s):	2018/00118065
Publication restriction:	No publication of any information that might identify child complainant. The complainant is to be referred to by a pseudonym.The Offender is referred to in this judgment by a pseudonym

Judgment

Pseudonyms have been used for the names of the child and her mother. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child. Identifying information has been removed from this version of the judgment to comply with the statute.

Introduction

1. George Young, a pseudonym, has admitted his guilt and must be sentenced for seven very serious offences:

1. Sexual intercourse child under 10 – 66 A Crimes Act 1900: maximum penalty- life imprisonment - standard non-parole period 15 years.

2. Groom child under 14 years for sexual activity – s66EB(3) Crimes Act 1900: maximum penalty 12 years imprisonment- standard non-parole period 5 years.

3. Aggravated commit act of indecency x 5 – s 61O(1) Crimes Act 1900: maximum penalty 5 years imprisonment.

2. When I sentence Young for the sexual intercourse offence I will also take into account the following matters, for which guilt has been accepted:

1. Aggravated indecent assault – s61M(2) Crimes Act 1900.

2. Aggravated act of indecency towards child under 16 years - s61O(1) Crimes Act 1900

3. Incite child under 16 years to commit act of indecency – s61O(1) Crimes Act 1900.

Facts for sentence

3. The complainant, Helen Hulme, a pseudonym, was born in 2007 and was, at all relevant times, under ten years old.

4. The offender is forty-two years of age. He was Helen’s stepfather.

5. On the morning of 13 April 2018, after the offender left home for work, Helen Hulme disclosed to her mother, on the evening before, the offender had masturbated in front of her and made her suck his nipple. Helen then went to school. As a result of this disclosure Helen’s mother sent a text message to the offender informing him what she had been told. The offender then came home from work. He was visibly upset. He said to Helen’s mother, "I'm sorry. It should never have happened. I don't know why it happened".

6. The offender then contacted Wollongong Police Station and asked that police attend his address. He told police he had been doing things of a sexual nature to his step-daughter. Police attended and the offender made admissions to masturbating in front of Helen Hulme. He was placed under arrest. 

7. On the same day Helen attended the Child Abuse Unit with her mother and met with detectives. She provided an electronic statement and disclosed that since the age of eight, the offender had been masturbating in front of her. The most recent incident occurred on 12 April 2018.

8. On the same day the offender participated in an electronically recorded interview with Police, where he made full admissions to the offences now before the court. Not all of those matters, in particular those relating to the sexual intercourse, had been revealed by Helen in her interview. As a consequence of these admissions a number of charges were laid. A plea of guilty to each count and acceptance of responsibility for the Form 1 matters came very early. As a consequence Helen did not have to be reinterviewed nor was she required to attend court and give evidence.

9. The offender told police that the offences occurred at the family home in the Wollongong area. Helen’s mother was never home when the offences occurred, as she worked casually.  Helen’s older brother (aged 13) would often be at home, but upstairs playing video games with headphones on.

10. In his interview, the offender openly admitted that he was grooming the child and that he knew his actions were wrong. He said his behaviour was escalating and said that all his actions were for his sexual gratification. He agreed that at the time of the offences, Helen was under his authority. That fact is the circumstance of aggravation relied on for the five aggravated act of indecency charges.

11. Seven offences were particularised and the agreed facts set them out in some detail. That detail need not be set out in these remarks.

Sequence 1 - Between 4th December 2015 and 3rd December 2016

12. When Helen Hulme was eight years old, the offender gave her a massage.  Helen was wearing no clothes. The offender was clothed. While rubbing Helen’s bottom the offender became sexually aroused. During his interview, the offender told police that his thumb went into the child’s anus. He told police he intended she feel pleasure and ask for him to continue. Helen however indicated to the offender that it hurt.

Sequence 3 - Groom Child under 14 years for unlawful sexual activity

13. The offender admitted to Police that he started to groom Helen by having open conversations with her about sexual activity. He then introduced her to adult pornography material and sex toys. The offender would get Helen to watch adult pornography. The offender often masturbated in front of Helen.

Sequence 4 – commit act of indecency with a child under 16 years- Between 4th December 2017 and 12th April 2018

14. On this occasion the offender watched a pornographic movie with Helen. She was 10 years old. The offender told her what dildos were used for. He had her hold a dildo to, and in, his mouth, while he masturbated.

Sequence 6 – commit act of indecency towards child under 16 - Between 4th December 2016 and 3rd December 2017

15.  Helen was nine years of age on this occasion. The offender became sexually aroused and started to masturbate in front of Helen. He asked Helen to kiss him while he did so. She knew how to kiss due to pornography she had been exposed to. The offender told police during his interview it was a “passionate kiss”. Afterwards Helen said to the offender “that was disgusting.”

Sequence 8 - commit aggravated act of indecency towards child under 16 years - Between 1ST January 2018 and 12th April 2018

16. Late one evening the offender went into Helen’s bedroom. He was watching pornography on his phone. Helen sat next to the offender while he masturbated to ejaculation. Helen was ten years of age at the time.

Sequence 9 – aggravated act of indecency towards child under 16 years - 12th April 2018

17. On the 12 April 2018 at around 8pm, the offender had just showered. Helen was sitting in the lounge room watching a movie. The offender kept pausing the movie to talk to Helen about “dicks”. While watching the movie the offender started to masturbate in front of her.

Sequence 10 - Aggravated act of indecency with child under 16 - 12th April 2018

18. The offender then took Helen to the spare room. He asked her to take off his underpants. He then asked Helen to take off her nightie. She began to cry. She told the offender she didn’t want to. He got mad at her - so she complied, however she left her underwear on. The offender began to masturbate in front of her. He then asked her to suck his nipple. She told the offender that she really didn’t want to do this, however the offender got angry so she agreed. The offender also asked her to touch him on his testicles whilst he masturbated and she did so.  The offender then ejaculated.

The Form 1 matters

19. The Form 1 matters each involved instances where events were contrived so that the offender and Helen were alone together. Sequence 5 involved him masturbating while both were in or near the shower. As the offender was about to ejaculate he tried to touch Helen on top of the head, however she moved away from him.

20. During the record of interview, the offender told police that on another occasion when he was giving Helen a massage, he rubbed her breasts with his hands. Helen was nine years of age: Sequence 13.

21. Sequence 14 occurred after sequence 9, the incident while the movie was playing; but before Helen went to bed. The offender asked her to pull out his penis from his pants, which she did. Before she went to sleep the offender went into her room. He told Police he did this to see if he could further feel sexually aroused. He commenced to massage her hand and kissed her hand. However, after playing with her hand he didn't feel anything and decided not to pursue it any further. The offender told her that next time he masturbated in front of her, he would ejaculate on her bottom and wanted her to lick it off.  

22. Helen complained to her mother the next day.

Objective seriousness

23. There is an absolute prohibition on sexual activity with a child. This prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. Every act that involves the sexual exploitation of a child is serious: see Clarkson [2011] VSCA 152, & R v Gavel [2014] NSWCCA 56. The damage done to children, so abused can be, and undoubtedly often is, profound. The shame and distress associated with being exploited, when young and vulnerable, may leave a lasting impact. This is one important reason for the high maximum penalties and high standard non‑parole periods fixed for some matters. Both are important guides to the exercise of my sentencing discretion.

24. The variety of abuse experiences means that the outcomes of child sexual abuse are diverse. The effects of child sexual abuse depend on many factors, including the age and gender of the child, the age and gender of the perpetrator, the nature of the relationship between the child and perpetrator, and the nature, number, frequency, and duration of abuse experiences. Symptom constellation varies, depending on the age of the child, family environment, the amount of support and love the child feels, the degree of disruption to the family that follows the abuse disclosure, and whether or not the child is believed by significant others in the child’s life, in particular, the mother: The social dynamics and impacts of institutional child sexual abuse - Dr Kenny D.T, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.

25. When assessing the objective seriousness of sexual offences against children the actual character of the act involved and the entirety of the facts and circumstances are important. While there is no hierarchy of seriousness of the kinds of sexual intercourse, and the form of forced sexual intercourse does not necessarily determine objective seriousness, it remains important; particularly as a standard non-parole period applies to the first offence.

26. Of significance, when assessing the objective seriousness of sexual offences involving children, is: the degree of physical contact involved; the time over which the acts occurred; and, whether any harm, hurt or injury, physical or psychological, resulted. Other matters bearing upon the assessment include the relationship between the child and the perpetrator and the age difference between them together with the age of the child relative to the range encompassed by the offence - "the younger the child the more serious the offence": R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42].

27. The indecent assault offences have with them a circumstance of aggravation that mean a higher maximum sentence applies. The offender because of his relationship with Helen’s mother had assumed the role of her step-father. He exercised parental authority over her. He was responsible for her well-being, not just when her mother was at work. It should be obvious, but it needs re-stating, that anyone having authority over children must exercise that authority responsibly. Immediately there are indications of inappropriate feelings for a child arising, the obligation is on the person in authority to remove themselves from the relationship and at the very least, immediately to seek expert counselling.

28. That all said, a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances:" Hoare v The Queen (1989) 167 CLR 348 at 354.

Assessing objective seriousness

29. The seriousness of an act of digital anal penetration on a naked 8 year old by an adult step-father under the pretext of a massage is evident from those facts alone. The act, while apparently of short duration and involving minimal penetration, hurt the child. It was carried out for the offender’s sexual gratification and part of a course of conduct over two years. However, as against the type and duration of penetration often encountered for such very serious offences, objectively it falls at the bottom of the range.

30. The grooming offence is also serious. When viewed individually, given the time and effort made by the accused to accustom the child to his sexual interests and desires and what was done to her, what she was exposed to and the escalation of activity, this offence falls objectively within the middle of the range. I must take care here, as the assessment of each of the other offence’s seriousness took into account that the actions of the offender were part of a course of conduct designed to accustom the child to sexualised behaviour. Care should be taken not to double count such matters, one reason, which along with the guilty plea and the subjective case for the offender justifies departure from the standard non-parole period.

31. While a strict classification is not required, each of the other indecent assault offences are serious examples of their type. In each case the offender as part of a course of conduct exposed a child of 9 or 10 to gross sexual activity generally kept private. While different and individual all require a similar penalty.

Form 1

32. The matters on the Form 1 do operate to increase the sentence that would otherwise be appropriate for the sexual intercourse offence. So much was made clear by the High Court in Markarianv The Queen (2005) 228 CLR 357. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 at [39] – [42]. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for the sexual intercourse offence I take these matters into account as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen at [51]-[54].

Victim Impact

33. Helen did not come to court for the sentencing proceedings. Her handwritten letter to me was tendered without objection as a Victim Impact Statement: Exhibit B. I read that statement to the Court and the offender. On her behalf I read:

“Dear Judge - I need someone upstairs when I go to sleep. I have nightmares regularly.

Sometimes I cry a lot. I feel lonely because no one understands how I feel.

I hate that my teachers had to be told what had happened to me so they could help when I have my wobbly moment.

I suffer flashbacks of what you did to me even at school.

It’s been really hard at school because I feel different.

I have nightmares regularly.

I still don’t feel safe even in my home.

[My brother] and I don’t get along very well anymore.

For me it’s been hard to trust men/males, even family members.

It’s having to learn how to talk about it in counselling.”

34. A Victim Impact Statement may be received or considered by a court. In the case of a primary victim, it must relate to “any personal harm suffered by the victim as a direct result of the offence:” s 26 Crimes (Sentencing Procedure) Act 1999. I will take into account the undoubted harm that this offence caused. What Helen said in her letter reflects the terrible, and all too common, consequences of crimes such as these.

35. It is important to note that the sentences imposed are only one indicator of the seriousness with which the court views the crime committed. A court sentencing an offender must take into account all relevant considerations. This means a direct correlation between harm done and the penalty imposed and time to be served in gaol is impossible. A victim should never equate or measure her injury with the punishment actually inflicted.

The case for the offender

36. The offender did not give evidence. The material about his background is set out in references from his father and sister and in a comprehensive report by Dr Richard Furst, Forensic Psychiatrist, dated 23 February 2019: Exhibit 1. That material is uncontroversial.

37. George Young is now 43. He has been in custody since his arrest on 13 April 2018. The offences occurred in the context of his four-year relationship with Helen’s mother. He met her in 2012. In 2016 he moved into her house in the Wollongong area.

38. Dr Furst gives a comprehensive personal and psychiatric history. That history and the conclusions drawn from it appear objective and valid. The opinions given do not rely on or attempt to parrot an exculpatory version of events given by the offender. To the contrary, Dr Furst carefully took what the offender has said to him, related it to known facts and analysed it professionally. His conclusions were not challenged.

36. Young was born in 1975. He lived with his parents and sister both in Hong Kong, England and Sydney. He reported no problems at school or within the family. He has always had the support of his family and that support will continue both while he is in custody and on his release. His sister, in her letter, indicated that she would do all she could to assist the offender with his reintegration into the community when eventually released.

37. Young left school at 15 to take up an electrical apprenticeship. He specialised in gaming machines and was employed in that industry for many years. He has a solid work history.

38. Socially and sexually he was a late developer. He describes himself as “socially isolated and shy.” In 1997 and 2000 he sought psychiatric help for depression and what was said to be a psychosis. He was prescribed antipsychotic medication, which he used for a number of years and then took intermittently, if stressed.

39. Young met his first wife in 2001. They married in 2002 and separated in 2004. He has a daughter, now a teenager. It appears, following the separation, that there was protracted litigation in the Family Court, which was a source of frustration to him. His only criminal conviction relates to a breach of an apprehended violence order in 2006, for which he was fined.

40. It would appear that one source of frustration was restrictions imposed by the Family Court on his access to his daughter. Young self-reported he was compensating for these problems by viewing pornography and abusing the drug amyl nitrate. This period corresponds with a decline in his psychosocial functioning. He stopped work in 2011 and for a period was living in his car. Some things seem to have improved when he formed the relationship with Ms Hulme in 2012, moved in with her family and found work.

41. The history Dr Furst received about the offending was similar to that revealed to Police on arrest. Full and open admissions were made, including to grooming and the escalation of activity for Young’s sexual gratification. Young acknowledged to Dr Furst that what he was doing to Helen was done to fulfil his sexual fantasies. He conceded that he was aware he was “stealing her innocence.” He said he was trying to, “fill a void” but that that he never wanted Helen to suffer. Dr Furst described this history as “convoluted and illogical.”

42. Dr Furst noted that on examination the offender appeared to be odd, rigid and obsessional and that he was expansive and over inclusive. This, Dr Furst said, was suggestive of a schizophrenic illness. He concluded the offender’s schizophrenic imbalance impaired his judgement and led to cognitive distortions. He noted that while the offending appears to have been almost entirely driven by sexual gratification, Young’s behaviour toward and attitude to his child victim was influenced by, or a product of, these “cognitive distortions.” He said that it was, “… also likely that periods of depression and other emotional symptoms caused by negative symptoms of Mr Young’s schizophrenia led to a maladaptive means of emotional sex self-regulation when he abused his stepdaughter for his own sexual gratification.”

43. Dr Furst explained:

“Schizophrenia is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty in processing information, prominent mood symptoms, and bizarre behaviour as a consequence of the illness… Schizophrenia is thought to be biologically driven because of abnormalities in dopamine transmission, differences seen in brain volume and genetic transmission”.”

47. Dr Furst notes that Young has accepted his guilt and regrets his actions. He recommends Young be referred to a clinical psychologist within the Department of Corrective Services and that he be assessed for participation in sex offender programs such as the Custody Based Intensive Treatment program (CUBIT). Dr Furst cautions however that a study by the Bureau of Crime Statistics suggests that participation in the CUBIT program does not decrease the risk of future offending, however there may be some secondary benefits to program participants: Does the Custody Based Intensive Treatment program for sex offenders reduce reoffending? Hallstead, I. (2016) (Crime and Justice Bulletin No 193. Sydney: NSW Bureau of Crime Statistics and Research.

48. Dr Furst concludes that the offender’s age, late offending history, employment capacity, and absence of obvious personality disorders (together with his scoring the lowest possible score on the Static – 99R test for recidivism), place him within the group of offenders considered to be at a low risk of sexual re-offending. The offender has good prospects of being successfully rehabilitated especially if he adheres to the treatment measures outlined and engages in psychological treatment to address his offending behaviour, cognitive distortions and the other factors that maintained his offending in this matter.

49. Dr Furst also suggests that the custodial sentence setting, while inherently stressful for all inmates, is likely to be more onerous for the offender than the theoretical average inmate - given there are frequent exposures to violence, overcrowding and lack of access to appropriate mental health and other services. In addition the offender will be at risk because of his serious mental illness and because he is still prone to illogical thinking. He notes that the offender will, while in custody, have less access to appropriate psychological or psychiatric services than would generally be available to him in the community.

Application of sentencing principle

Guilty plea

50. In Thompson (2000) 49 NSWLR 383 at [3] Chief Justice Spigleman noted three reasons why a plea of guilty should attract a lower sentence than would otherwise be imposed:

1. The plea is a manifestation of remorse or contrition.

2. The plea has a utilitarian value to the efficiency of the criminal justice system.

3. In particular cases - especially sexual assault cases, crimes involving children and, often, elderly victims - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence.

51. Each apply here. There will be a reduction by 25% for each indicated sentence to reflect the utilitarian value of the pleas. I will take care that that benefit is not eroded by the process of accumulation. The guilty pleas also inform other aspects of my assessment of relevant maters.

Ellis Discount

52. Here the most serious offence, and many details that enabled specific charges to be laid, were revealed by Young in his police interview. He called the police. He was open with them about what he did and his motivation; openness and expansiveness appear to be a product of his mental illness. Whatever his motivation, the comprehensive admissions, did save Helen from further interviews. They did allow the volume to be turned down and for those who care for her to focus on restoring her psychological health rather than preparing for trial. Children who are involved in lengthy criminal cases are many times more likely to remain disturbed than those whose cases resolve quickly: see What you can change and what you can’t, Martin Seligman, Random House, 1994.

53. Disclosure by an offender to law enforcement authorities of otherwise unknown guilt generally leads to a reduction in the otherwise appropriate sentence, in addition to that often allowed to recognise a guilty plea. Disclosure by an offender involves the provision of assistance to law enforcement authorities within the meaning of s 23(1) Crimes (Sentencing Procedure) Act and “subject to the stricture of s 23(3):” CMB v Attorney General for the State of NSW [2015] HCA 9; (2015) 256 CLR 346, at [41] & [72].

54. Sentencing judges are also required to comply with s 23(4) and specify the level of the discount proffered: see Panetta v R [2016] NSWCCA 85. Accordingly, a sentencing judge considering imposing a lesser sentence on account of the conduct of an offender in disclosing previously unknown offences must:

• Consider the factors in s 23(2) in determining whether to proffer the discount (Williamson v R [2015] NSWCCA 250 at [68]) and, if so, its level.

• Ensure that the penalty imposed is not disproportionate (s 23(3))

• Specify the level of discount in accordance with s 23(4).

• Irrespective of whether s 23 is engaged, sentencing judges may also consider whether the offender’s actions demonstrate remorse: R vAA [2017] NSWCCA 84, CMB  v Attorney General for the State of NSW

55. Here, the agreed facts do not enable a quantification of the exact reduction for all but the sexual intercourse offence as it is not clear to me what in the agreed facts rely on Helen’s complaint and what rely on the offender’s admissions. However, those admissions must be taken into account and have more than utilitarian value.

56. As to the sexual intercourse count; if the admission had not been made this count could not have been charged. If the guilty plea had not been entered early Helen may have revealed it but this would have required probing questions that may have led to her suffering additional psychological harm. A significant reduction in the otherwise appropriate penalty is required. Here, I intend to reduce the indicated sentence by 2 years with a corresponding reduction in the non-parole period.

Maximum and standard non-parole period

57. The sexual intercourse with a child under 10 years offence carries maximum penalty of life imprisonment and a standard non-parole period of 15 years. That standard non-parole period represents the non-parole period for an offence taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of seriousness. When assessing the applicability of the standard non-parole period (SNPP) my sole regard is the nature of the offending. I am required to give content to the SNPP. In doing so I assess objective seriousness wholly by reference to the nature of the offending, without reference to matters personal to the offender: Muldrock v The Queen (2011) 244 CLR 120 at [27].

58. The other offences, Groom child under 14 years for sexual activity and aggravated commit act of indecency, each have a maximum penalty 5 years imprisonment.

59. Careful attention to the maximum penalties and where applicable, the standard non-parole period is required. Not just because the Parliament has legislated for them. Here both provide penalties sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, it is not appropriate here to look first to a maximum penalty or standard non-parole period and then proceed by way of making a proportional deduction from it: Markarian v The Queen at [30] and [31]. However, as the court in Muldrock made clear, neither can I engage in a staged approach to sentencing: at [28]. Accordingly, my finding about objective circumstances and range do not compel any one result. That assessment and the causal connection between the offender’s mental illness and the crime must all be synthesised along with other relevant matters.

Accumulation and Concurrency

60. A sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59. Sentences are not made concurrent just because of the similarity of the conduct or because the conduct may be seen to be part of the one course of criminal conduct. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381. However, where, as here, the offender’s liability for multiple offences is inextricably linked judges are allowed considerable flexibility in how the aggregate sentence is structured: Nguyen v The Queen [2016] HCA 17, per Bell and Kean JJ at [36] – [40]. As many of matters to be taken into account overlap considerable concurrence is called for.

Mental illness

61. Young has suffered symptoms of the mental illness schizophrenia for many years. Despite that illness he has for the most part been able to work and function in the community. He functions better if he takes his medication. He will function even better if he engages in treatment. While he states openly he sought sexual gratification from Helen and was aware of how illegal and morally wrong his actions toward her were – it also appears that his actions were influenced by his illness and it had some causal connection with his crimes. Sentencing mentally ill offenders for serious crimes raises difficult questions of judgment and assessment, problems which are "to an extent intractable:” Courtney v R [2007] NSWCCA 195.

62. The principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]. Omitting citations they are:

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

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

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

• It may reduce or eliminate the significance of specific deterrence.

• Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.

63. Here, some reduction of the offender’s moral culpability is required and he should not be punished as severely as others. There is less need to send a message or extract retributive justice. A gaol sentence will, as Dr Furst notes, weigh more heavily on him than the notional average prisoner. He does not, on the evidence before me present as a particular risk on release if he is appropriately supervised and continues treatment.

64. Mentally ill or not however, the penalty has to be severe enough to ensure that he appreciates the consequences of his actions and given the nature of the crimes against a young child the sentences must give effect to the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan (2001) 206 CLR 267.

Remorse

65. The term “remorse” generally, and in the sentencing context, conveys a feeling of deep and painful regret or sorrow felt for a wrong done. It can also convey acceptance of wrongdoing and the making of amends. It does not include regret for the fact that the offender has been caught. An offender who is found to be remorseful is entitled to the benefit of that finding in mitigation, and if other things are equal, may anticipate a lesser sentence than a co-offender who has not been found to be remorseful. Regard may not be had to the absence of remorse in imposing a heavier sentence: Windle v R [2011] NSWCCA 277; Alvares v R (2011) 209 A Crim R 297; Roff v R [2017] NSWCCA 208.

66. The extent to which leniency will be afforded on the ground of contrition will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: R v Winchester (1992) 58 A Crim R 345. The strength of the Crown case is also relevant to the question of remorse: Sutton v R [2004] NSWCCA 225.

67. The value of a plea of guilty as evidence of contrition is not reduced as a consequence of the Crown case being strengthened by the offender’s assistance to authorities. An offender who takes the course of admitting guilt at an early stage should not, because of that, lose the benefit of a subsequent plea of guilty: Hameed v R (2001) 123 A Crim R 213. In addition to remorse, a plea of guilty may indicate acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339.

68. Remorse is specifically referred to as a mitigating factor in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999:

“remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

69. Generally untested out of court statements of remorse made to third parties should be treated with caution and considerable circumspection: R v Qutami [2001] NSWCCA 353 at [58] – [59]; R v Palu [2002] NSWCCA 381; Newman v R [2018] NSWCCA 208.

70. That said it is not uncommon for reliance to be placed on remorse when an offender does not give evidence. As Wilson J points out in Imbornone v R [2017] NSWCCA 144 at [57], while generally admissible there are a number of particular reasons why such unsworn representations should be treated with caution. However, it does not follow that if an offender does not give evidence, and accordingly is not exposed to cross-examination, that the sentencing judge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made: Pfitzner [2010] NSWCCA 314.

71. In assessing the weight to be given to the offender’s various expressions of remorse here I can and do have regard to the fact that the offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1, at [18]. However where, as here, there are tangible expressions of contrition in the immediate reporting, confession and disclosure of unknown guilt regard must be had to his remorse as expressed through his sister and psychiatrist.

72. As Spigelman CJ noted in Thompson (2000) 49 NSWLR 383; at [118]:

“The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse.”

73. Sentencing, particularly in busy lists, is rarely capable of subtlety and refinement. Nor is it necessary in most cases for all the evidence to be tested.

74. Even where the Evidence Act does not apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parteBott (1933) 50 CLR 228 at 256 per Evatt J. A Judge is entitled to be sceptical of conclusions unsupported by any factual detail: DPP (NSW) v Mawad [2015] NSWCCA 227.

75. There is no reason here however to doubt the bona fides of Dr Furst or the offender’s family. Further, the offender’s immediate admissions and very early guilty pleas are evidence of acceptance of responsibility. Admissions were also made as to the harm inflicted on Helen.

76. I must take particular care here. Matters raised in mitigation of sentence are not always capable of neat categorisation. The offender’s admissions were triggered by Helen’s complaint to her mother. Unusually, he acted, not with denials, but acceptance of responsibility. He knew Helen was being used and abused. Her courage in coming forward was all he needed to accept his wrongdoing.

73. The early acceptance of responsibility had very practical benefits for Helen, the police and prosecution. It also enabled a thorough warts and all analysis by a respected forensic psychiatrist. Dr Furst’s analysis reveals that the offender acted under the influence of his mental illness – which led to his “maladaptive emotional sex self-regulation.” But the offender’s “expansive and over inclusive account” also shows that he was aware of the moral wrongness of his actions and the harm it would do to Helen. Knowing this he continued to act for his own sexual gratification.

74. Practical remorse and acceptance of responsibility mitigates; his attitude to the offending and his persistence with it does not, even when allowance is made for his mental illness. Like many matters that must be synthesised in a sentencing exercise the evidence points in differing directions. The offender’s immediate actions after Helen’s disclosure do however give me some confidence that he will accept treatment – acknowledgment of the wrongness of his acts is a step on the road to change.

Special Circumstances

79. Here, there are, in the early admissions of guilt, matters set out in the report of Dr Furst and the support offered by family, significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility: see R v Carter [2003] NSWCCA 243, at [20]. However in so finding, I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].

Submissions

80. Ms Kerr, solicitor for Director of Public Prosecutions and Mr Fraser, Public Defender, counsel for the offender, provided comprehensive written submissions: MFI 1 & MFI 2. I trust these remarks do justice to them.

Synthesis

81. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offences.

82. Sentences have many purposes. Those purposes can point in different directions. Young must serve his gaol time but he will return to the community. The community will be best protected if he returns able to work and engage in continuing psychological treatment. Too long in custody can impede rehabilitation and break pro-social ties with family. However, another purpose of sentencing recognises the legitimate interest of the general community in the denunciation and punishment of crimes, particularly sexual crimes, against children. Those purposes include:

1. Vindication of the dignity of each victim of sexual violence; as each victim is in need, or deserving, of such protection and vindication as the criminal law can provide.

2. The need to express the community's disapproval of the type of offending, and

3. The need to afford such protection as can be afforded by the state to the vulnerable against repetition of such crimes: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, [52] to [58].

83. The interplay of considerations relevant to sentencing may be complex. Not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: “a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money:” Weininger v The Queen (2003) 212 CLR 629.

84. Ultimately I must identify all the factors that are relevant to the sentence, discuss their significance and then makes a value judgment as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen (2010) 242 CLR 520.

Orders

85. There will be an aggregate sentence. The 25% discount for utilitarian value of the early pleas of guilty will be applied to each indicative sentence.

86. In respect of each count and in accordance with your guilty plea you are convicted.

The indicative sentences are:

1. with respect to offence 1 - Sexual intercourse child under 10 – 66 A Crimes Act 1900; and taking into account the three matters on the Form 1 imprisonment for 4 years with an indicated non-parole period of 2 years 4 months.

2. with respect to offence 2 - Groom child under 14 years for sexual activity – s66EB(3) Crimes Act 1900, 3 years imprisonment with an indicated non-parole period of 1 year 9 months.

3. with respect to offence 3 - Aggravated commit act of indecency – s 61O(1) Crimes Act 1900 – 2 years 3 months imprisonment.

4. with respect to offence 4 - Aggravated commit act of indecency – s 61O(1) Crimes Act 1900 – 2 years 3 months imprisonment.

5. with respect to offence 5 - Aggravated commit act of indecency – s 61O(1) Crimes Act 1900 – 2 years 3 months imprisonment.

6. with respect to offence 6 - Aggravated commit act of indecency – s 61O(1) Crimes Act 1900 – 2 years 3 months imprisonment.

7. with respect to offence 7 - Aggravated commit act of indecency – s 61O(1) Crimes Act 1900 – 2 years 3 months imprisonment.

The aggregate and indicative sentences reflect a finding of special circumstances.

Having considered issues of accumulation, concurrency and totality, I am satisfied that an aggregate sentence of 7 years imprisonment with a non-parole period 4 years 4 months should be fixed.

The sentences should date from 13 April 2018. You will be eligible for consideration for release to parole on 12 August 2022. Sentence expires 12 April 2025.

Dr Furst’s report is to accompany the warrant.

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Decision last updated: 15 March 2019