R v GUO

Case •

[2022] NSWDC 551

•

17 June 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v GUO [2022] NSWDC 551
Hearing dates: 6 June 2022
Date of orders: 17 June 2022
Decision date: 17 June 2022
Jurisdiction:Criminal
Before: Buscombe DCJ
Decision:

Impose an aggregate sentence of six years imprisonment and a non-parole period of four years imprisonment. The sentence commences 1 July 2021 and expires on 30 June 2027. The non-parole period expires on 30 June 2025.

Catchwords:

CRIME – Child sex offences – Sexual intercourse with child >10 <14 – Circumstances of aggravation

SENTENCING – Aggravating factors - Planning

Legislation Cited:

Crimes Act 1900 (NSW), s 66C(1), 66EB

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Category:Sentence
Parties:

Office of the Director of Public Prosecutions (Crown)

Mr Ning Guo (Offender)
Representation:

Counsel:
Ms Prowse (Crown Prosecutor)
Mr G Smith SC with Mr Johnson (Offender)

File Number(s): 2021/00189212

SENTENCE

Introduction

  1. The offender, Mr Guo, stands to be sentenced having pleaded guilty to the following offences. That between 20 July 2020 and 25 September 2020, at South Penrith, he had sexual intercourse with WH, WH being a child above the age of ten years and under the age of 14 years, namely 13 years. That offence is contained in charge sequence 17. WH in the agreed facts is referred to as Billy, but in relation to both children I will simply refer to them by their initials. I do so in order to, when this judgment is typed, protect their identity, as they are entitled to have it protected.

  2. The second offence is that on 5 May 2021, at Eastwood, the offender had sexual intercourse with MR, MR being a child above the age of ten years and under the age of 14 years, namely a child of 13 years. That offence is contained in charge sequence 3.

  3. The third offence is that on 12 May 2021, at Eastwood, the offender had sexual intercourse with MR, MR being a child above the age of ten years and under the age of 14 years, namely 13 years. That offence is contained in charge sequence 7.

  4. The fourth offence is an offence that on 8 June 2021, at Eastwood, he had sexual intercourse with MR, MR being a child above the age of ten years and under the age of 14 years, namely 13 years of age. That offence is contained in charge sequence number 10.

  5. The fifth offence, the final offence, is that on 1 July 2021, at Eastwood, the offender travelled with the intention of meeting a child whom he had groomed for sexual purposes, with the intention of procuring the child for unlawful sexual activity. That offence is contained in charge sequence 15.

  6. The offences in charge sequences 17, 3, 7 and 10 are all offences under s 66C(1) of the Crimes Act, and have a maximum penalty of 16 years imprisonment and have an applicable standard non-parole period of seven years. The offence in sequence 15 is an offence under s 66EB of the Crimes Act and has a maximum penalty, in my opinion, of 15 years imprisonment, and there is an applicable standard non‑parole period of six years.

  7. There are four separate form 1 documents, and the offender acknowledges his guilt in relation to each of the offences on the form 1 documents. When imposing a sentence on the offence contained in charge sequence 17, the offender asks that I take into account a further offence of having sexual intercourse with a child aged between ten and 14 years, which occurred between 20 July and 25 September 2020 and concerned the victim WH. The facts make clear that this second offence occurred during the same incident as the principal offence.

  8. When imposing sentence on the offence contained in charge sequence 3, the offender asks that I take into account two further offences of sexual intercourse with a child aged between ten and 14 years and which the victim involved was MR. There is a further offence of participate in child prostitution as a client where the victim was MR.

  9. When imposing sentence on the offence contained in charge sequence 7, the offender asks that I take into account two offences of sexual intercourse with a child aged between ten and 14 years and where the victim was MR and which occurred on 12 May 2021. There is a further offence of engage in child prostitution as a client where the victim was MR, and the offence occurred on that same day.

  10. When imposing sentence on the offence contained in charge sequence 10, the offender asks that I take into account a further offence of sexual intercourse with a child between ten and 14, along with two offences of sexual touching a child aged between ten and 14 years. There is also an offence of inciting a child aged between ten and 14 years to conduct a sexual act. All of those offences occurred on 8 June 2021, and the victim in all of them was MR.

The facts

  1. There is an agreed statement of facts, and the following is taken from the agreed statement of facts. The offender was aged 32 years at the time of these offences. The victims WH and MR were 13 years of age at the time of the offences. In terms of the offences concerning WH, around 20 July 2020, the offender added WH on Snapchat. Between 20 July 2020 and 25 September 2020, the offender and WH conversed over the Snapchat application, as I understand it. At all times the offender identified himself as Nick and claimed to be 17 years of age. The offender was aware that WH was 13 years old. The offender and WH began discussing sexual topics and eventually agreed that they would meet and perform fellatio upon each other.

  2. On a Saturday between 20 July 2020 and 25 September that year, the offender travelled to South Penrith to a location close to WH's home address. WH left his home to meet the offender, telling his parents that he was going to the park. WH walked towards the agreed upon location and got into the offender's vehicle. The offender then drove to a playground in South Penrith. Once they were parked, the offender and WH got into the back seat of the offender's car. He pulled down WH's pants and fellated him. That is the form 1 offence. The offender stopped when WH said, "I have to go now". The offender then asked WH to fellate him, which WH did. That is the principal offence in sequence 17. This continued until the offender ejaculated into WH's mouth. The offender was not wearing a condom. WH again said, "I have to go now". The offender wiped his penis and drove WH home.

  3. Following this interaction, the offender made several attempts to arrange a follow up meeting with WH, however the victim declined to meet again. During one such conversation, the offender asked the victim, "Have you got any friends that are gay?" and said he would pay those friends to meet up with him. WH was aware that the victim MR identified as gay and sent the offender's contact details to MR, and MR's contact details to the offender. WH also told MR that the offender would pay him. The agreed facts then deal with the offences concerning MR.

  4. On 4 May 2021, MR received a Snapchat message from the offender, who was purporting to be an 18 year old called Nick. The offender was aware that MR was aged 13 years. The offender wrote, "Hey bro, I hope this isn't awkward, eh, but did Billy ask you about the hundred dollar thing. Cool, are you interested cos I got a hundred dollars if you're in bro." After checking the offender's financial bona fides with WH, MR agreed to meet the offender, and they started exchanging messages to that effect. There is an exchange set out in the agreed facts which reads as follows. The offender, "Hope you don't back out bro, you might get cold feet." MR, "Nah I won't." Offender, "All right, cool, me either. Free money, have you had a BJ before?" MR, "Nope." Offender, "You'll love it."

  5. The facts then deal with the events of 5 May 2021. On weekdays MR would catch the train to Eastwood as he attended school in that area. On 5 May 2021 MR caught the train to Eastwood. He was wearing his school uniform and arrived at approximately 8.10am and met with the offender in a nearby street. The offender was sitting in the back seat of his car waiting for MR. The offender opened the rear passenger door and told MR to take off his pants and get in the car. MR complied. The offender fellated MR, and that conduct is sequence 2, which is on the first of the form 1s. After a period, the offender asked MR, "Do you want to do it to me?" and MR replied, "Sure".

  6. The offender took off his pants and MR fellated him for a few minutes. It is that conduct which is the basis of the second principal count in sequence 3. The offender was not wearing a condom. The offender then fellated MR for a few more minutes - that conduct is the subject of a charge on the form 1 - but stopped at approximately 8.35am as MR told him that he had to go to school. The offender gave MR $50 and said that he would give him the other $50 on the next occasion. That conduct is also an offence on the form 1, being the child prostitution offence. The offender drove MR to school.

  7. Over the next few days, the offender and MR continued to exchange messages, including the following messages sent by the offender:

"I would absolutely love to meet up again. I wanted to give you a bit of time to absorb everything first because I'm sure you had a lot of emotions since it was your first time. Do you prefer before school or weekends. Yesterday was so good, you're amazing. TBH," which I understand to be "to be honest", "I'd be happy to go again tomorrow if you like, haha."

  1. The facts then deal with the events of 12 May 2021. On 12 May 2021 MR caught the train to Eastwood. He was wearing his school uniform and arrived at approximately 8.10am.  The offender was sitting in the back seat of his car waiting for him. MR got onto the back seat and the offender told him to take off his pants, which he did. The offender fellated MR until the victim ejaculated. That is an offence on the form 1. The offender then removed his own pants and told MR to suck his penis, which the victim did. That is the offence in sequence 7, which is the third of the principal offences that he is to be sentenced for. The offender ejaculated into MR's mouth. The offender was not wearing a condom. He then fellated MR again until the victim ejaculated. That offence is on the form 1. The offender gave MR some tissues to clean up and $30 for the sexual acts. That offence is also, being the child prostitution offence, on the form 1. The offender then drove MR to school.

  2. In the weeks following, the offender and MR continued to exchange messages and arranged to meet up again. The facts then deal with the events of 8 June 2021. On 8 June 2021, MR caught the train to Eastwood. He was wearing his school uniform and arrived at approximately 8.10am and again met the offender. The offender was again sitting in the back seat of his car waiting for the victim. The victim MR got onto the back seat and the offender told him to take off his pants, which he did. The offender fellated MR. That offence is on the form 1 relating to the principal offence for this sequence of events.

  3. The offender then asked MR if he wanted to kiss, and the victim said, 'Okay," even though he did not really want to. The offender and MR started kissing on the lips. That offence of sexual touching is on the form 1. While they were kissing, the offender told MR to masturbate himself, which he did -that offence of incite sexual act is also on the form 1 - and the offender also masturbated MR's penis. That offence of sexual touching is on the form 1. When the victim was getting close to ejaculation, the offender put MR's penis into his mouth and the victim ejaculated. That is the principal offence which is in charge sequence 10 that the offender is to be sentenced for. The offender gave MR some tissues to clean up and $20 for the sexual acts, which is the child prostitution offence, which is on the relevant form 1. The offender then drove the victim to school.

  4. On 23 June 2021, MR wrote a suicide note, which was found by his mother. In the note the victim referred to the offender as "Nick the groomer", and said that the offender had made him "feel special". MR's mother contacted police, who interviewed MR later the same day. He also provided police with his phone, within which he had saved most of his conversations with the offender. After the interview, police obtained MR's consent to assume his identity on Snapchat for the purpose of engaging with the offender.

  5. On 23 June 2021, conversations commenced between the offender and the police, who were pretending to be the victim MR. The offender attempted to arrange another meet up with the police, who were obviously posing as MR, and asked for his home address, to which the police responded, "You must think I'm a silly 13 year old, lol." And the offender replied, "No need to be paranoid bro, you're in safe hands with me and I am super discreet." The offender also said, "But we've come around each other so I can tell we can trust each other."

  6. On 24 June 2021 the police, posing as MR, made a comment about his mother, stating, "According to her, being 13 is still a baby", to which the offender replied, "But yeah 13 is no baby, lol". During this conversation, the offender asked to move the conversation onto different platforms, such as WhatsApp and Signal, upon which the offender changed the settings so that the messages automatically disappeared or were deleted. However, during these conversations the offender also provided his phone number, which is set out in the facts, which was registered in his own name and an address in Denistone.

  7. Late on Tuesday 29 June 2021, the offender attempted to arrange another meeting with the police, who were posing as MR, and said, "Hey by the time you read this it will be Wed", clearly Wednesday. "Can you give me the addy for Thur", clearly Thursday. "Since it's not convenient for you to talk, it might be the only chance in the holidays, so let's not waste it."

  8. On Wednesday 30 June 2021, the police posing as MR replied, "I'm good. Looking forward to tomorrow", and the offender said, "Me too bro. I hope you don't cancel or get cold feet. I can't wait to see you again. I really miss you a lot". The offender also questioned the identity of the person who was sending him messages, asking, "Just in case I'm not talking to MR but someone else is trolling me, can you send me a live pic of you. Haha. Sorry if it's weird. Yeah, just paranoid that I'm not talking to you, lol."

  9. On 30 June 2021, the police posing as MR gave the offender an address in North Parramatta, which was supposedly the home of MR's grandmother, and it was arranged that the offender would pick up MR from that address. Before the meeting, the offender asked:

"Hey, weird question, but your nan doesn't have a nanny cam, right? A lot of old people have cameras so their kids can watch them and make sure they are safe and that. Just in case your mum sees, lol. It's not close to your mum or dad's work, right? In case they come and visit, lol."

  1. At 8.30am on 1 July 2021, police followed the offender as he drove from his home in Denistone to North Parramatta, where he parked his car. These facts support charge sequence 15, the meet child after grooming offence. Once he was parked, he continued to message the police, who were obviously posing as MR. He then moved his car to a nearby street but told the police who were posing as MR to meet him at the pre-arranged street. The police approached the offender's vehicle in the nearby street. As soon as police identified themselves, the offender immediately sped off from the location.

  2. The police pursued him along Pennant Hills Road and Church Street as he headed into the Parramatta CBD. As he travelled along the new light rail corridor, he collided with a concrete barrier at the intersection of Church and Fennell Streets, but then continued along Fennell Street before stopping in Short Street. The offender then got out of his car and fled on foot through the cemetery until he was stopped by police. He was arrested and cautioned and declined to participate in an interview, exercising his rights. He voluntarily provided, in a forensic procedure, his DNA. Police located semen consistent with the offender and MR on multiple locations on the back seat of the offender's vehicle.

  3. There is a victim impact statement by WH's father, which the father bravely read during the sentence proceedings last week. Clearly the offences have had a significant adverse impact upon WH, and he is struggling to deal with the trauma associated with the offending and with the subsequent court proceedings.

  4. There is also before me a victim impact statement from MR's mother. The offences have also had a significant adverse impact upon MR, and he is struggling to cope with the trauma associated with the offending. I have had regard to both victim impact statements in arriving at the appropriate sentences to impose. I note the Crown did not submit that the aggravating factor in s 21A(1)(g) of the Crimes (Sentencing Procedure) Act was engaged here.

Objective seriousness

  1. I will now consider the objective seriousness of the offences. Later in these remarks once I have reviewed the offender's subjective case, I will address the closely related issue of the offender's moral culpability, his moral blame worthiness, for the offending.

  2. The offence in charge sequence 17 concerned WH. It was an offence which involved the victim fellating the offender until the offender ejaculated into the victim's mouth, and the offender was not wearing a condom. There is no hierarchy of seriousness of sexual intercourse offences, however fellatio is generally considered to be less serious than penile-anal penetration. There was clearly planning by the offender in the commission of the offence. He had misrepresented to WH his age, telling him in messages that he was 17 years old, when he was in fact 32 years of age. The offender knew that the victim WH was only 13 years of age. The victim was towards the upper end of the age range of victims who fall within the offence creating provision. There was some grooming of WH, given the content of para 3 of the agreed facts. The sexual intercourse can be described as being non-oppositional, however it is relevant to have regard to the significant age difference between the offender and the victim, which was almost 20 years. I assess the objective seriousness of that offence as being a little below the mid-range of objective seriousness for such offences.

  3. The offence in charge sequence 3 concerned MR and involved MR fellating the offender, and the offender was not wearing a condom. Again, the offender had misrepresented his age to this victim, representing that he was 18 years of age. There was again an almost 20 year age gap between the victim and the offender. The victim was at the upper end of the age range of victims caught by the offence creating provision. There was grooming involved in the offence, and the offence can be described as non-oppositional. I assess the objective seriousness of this offence as being a little below the mid-range of objective seriousness, but not as serious as the offence in charge sequence 17, as the offender did not ejaculate into the boy's mouth.

  4. The offence in charge sequence 7 involved the victim MR fellating the offender. The offender on this occasion was again not wearing a condom, and on this occasion ejaculated into the victim's mouth. Again, there was planning and grooming involved in the offence. This offence can also be described as non-oppositional, but again noting the substantial age difference between the victim and the offender, I assess the objective seriousness of this offence as being a little below the mid-range of objective seriousness. It is more serious, however, than the offence in charge sequence 3, because the offender on this occasion ejaculated into the boy's mouth.

  5. The offence in charge sequence 10 also involved planning and grooming. This offence involved the offender fellating the victim to the point of ejaculation. I asses this offence as being a little below the mid-range of objective seriousness and at the same level as the offence in charge sequence 3.

  1. The offence in charge sequence 15 involved planning and seduction of what the offender clearly believed was a 13 year old boy. The fact that the offender was unknowingly dealing online with the police is not a mitigating factor for such an offence, although I do note that no real boy was at risk. The messages from the offender about the possibility that the grandmother may have a camera, shows the degree of cunning and planning engaged in by the offender. I assess the objective seriousness of this offence as being below a mid-range level offence, but clearly not at the bottom of the range for such offending.

  2. The Crown submitted that the level of planning here involved was an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. There was considerable planning involved here, and I have taken that into account in my assessment of the objective seriousness. I do not, however, consider that the level of planning demonstrated here is such that it amounts to an aggravating factor under s 21A.

The impact of the Form 1 Offences

  1. I turn then to consider the impact of the form 1 offences. In relation to charge sequence 17, there is one offence on the form 1, which occurred during the same incident in which the principal offence occurred and involved the offender fellating the victim. It has some impact upon the sentence to be imposed on that charge.

  2. In relation to charge sequence 3, there are three offences to be taken into account. They all occur on the same date as the principal offence. Two involved the offender fellating the victim and one involved the offender giving the boy money for an act of prostitution. Given the serious nature of those offences, they have an impact on the sentence to be imposed on the offence in sequence 3.

  3. In relation to charge sequence 7, there are two offences which involve the offender fellating the boy to the point of ejaculation. There is also an offence of engaging in child prostitution as a client. Those offences all occurred during the same incident in which the principal offence occurred. Given the serious nature of those offences, they have some impact upon the sentence to be imposed on charge sequence 7.

  4. In relation to charge sequence 10, there is one offence which involved the offender fellating the boy, one offence of sexually touching the boy, which involved kissing, one offence involving incitement of the boy to masturbate, one offence involving masturbating the victim, and another offence of engaging in prostitution with the victim. All of those offences occurred during the incident in which the offence in charge sequence 10 occurred. Given the serious nature of those offences, they have some impact upon the sentence to be imposed on charge sequence 10.

The Offender’s subjective case

  1. I turn then to the offender's subjective case. The offender was 32 years of age as at the date of the offences and is now 33. The offender has no prior criminal history. There is no suggestion that his lack of criminal record in any way assisted him to commit the offences.

  2. The testimonials that are before me are to the effect that in the past the offender has been a hard-working person with general good character. Generally, a lack of a criminal record and general good character entitles an offender to leniency on sentence. However, given the repeated number of sexual offences committed against two young children, this offender is not entitled to the same degree of leniency that a person who had not committed so many repeat child sexual offences would receive.

  3. Tendered on the offender's behalf, without objection from the Crown, were the following: a letter of apology by the offender dated 20 May 2022, a report dated 10 September 2021 by Dr Olav Nielssen, psychiatrist, testimonials from former work mates, the offender's mother and father. There is also a sentencing assessment report. The offender did not give evidence on sentence, and I have had regard to that fact in assessing statements he has made to the authors of the documents that are before me.

  4. In terms of the offender's family background, he provided details concerning his family background to Dr Nielssen, and that background was confirmed with the offender's mother, Dr Wang. The offender is the only child of his parents and was born in China. His family moved to New Zealand when he was six or seven years of age. His parents were both doctors in China and his mother is a medical practitioner here. The offender and his family moved to Australia when he was 13 or 14 years of age. Prior to his arrest, he continued to live with his parents. He also had a girlfriend at that time, but that relationship has ended. The sentencing assessment report records that he still has his parents' support and he will be able to return to live with them when released from custody.

  5. In terms of his education and employment history, the offender did not report to Dr Nielssen that he had any learning or behavioural problems when he was at school. He completed years 11 and 12 in Sydney, but reported that he had not done as well in the higher school certificate as expected, and it was thought that was due to his deteriorating mental health. He enrolled in a science degree at University which he failed to finish. While at University he had worked in a supermarket, and after he dropped out of University he found a job with a casino. He told Dr Nielssen that he had risen from being a dealer at the casino to liaising with big gamblers. The testimonials before me detail how successful he was in his employment at the casino, and that he was ultimately promoted to be a premium guest executive.

  6. Prior to his arrest, he had been employed as a loyalty manager at Parramatta Leagues Club. While in prison he has been employed in the prison laundry. The Sentencing Assessment Report records that he receives positive reports in relation to his work in the prison, and he has incurred no institutional misconduct charges.

  7. The material before me suggests the offender has not had any significant issues with alcohol or prohibited drugs.

  8. Turning then to his psychological history. Dr Nielssen took a history from the offender in relation to his mental health and confirmed it with his mother and with documentation that was made available to him. The offender told Dr Nielssen in the last seven or eight years he had;

"started getting weird feelings. There was a lot of negativity in my brain, like a voice telling me I am pathetic, worthless, I am disgusting, you are a nobody, telling me go and kill yourself".

  1. Dr Nielssen noted in terms of the family history of mental illness, a maternal uncle had schizophrenia and the offender's mother was considered to be a very anxious person. The doctor recorded that the offender had not told his parents he had not completed his university degree and that as his expected graduation date approached, the offender left a suicide note and proceeded to travel to Watson's Bay with the intention of throwing himself off the cliff. His father found the note, and, as I understand it, intercepted the offender. He was then taken to Concord Hospital and admitted as an involuntary patient for a week and treated with the antidepressant sertraline.    

  2. Dr Nielssen records that the discharge summary from Concord Hospital confirmed the offender's admission for seven days from 21 March 2014. It recorded that the offender had suffered from "longstanding depression". The offender, upon his release from Concord Hospital, was treated at Ryde Community Health Centre. He attended five counselling sessions up to October 2014 and was found to meet the criteria for the diagnosis of anxiety and depression in 2014 and was prescribed sertraline up to March 2017. His mother reported to Dr Nielssen that the offender had ceased the medication and there had been a decline in his mental health as a consequence.

  3. Dr Nielssen recorded that upon examination, the offender had no obvious signs of neurological disorder, although he was very distressed during his initial interview. The psychiatrist noted that there were no abnormal patterns of speech or distinctly odd beliefs indicating an active psychotic illness. Dr Nielssen diagnosed the offender as suffering the following: a depressive illness, an anxiety disorder, and a possible emerging psychotic illness. Based upon the history provided by the offender and his mother, and having regard to the family history of mental illness, the psychiatrist considered that the offender may possibly have an emerging psychotic illness.

  4. Dr Nielssen also considered that the reported symptoms, along with the recording of an abnormally high level of prolactin may be indicative of an atypical form of epilepsy. The level of prolactin may be an indicator of a recent seizure, and the psychiatrist considered that the offender should have a brain scan and an EEG to exclude structural and functional abnormalities. Dr Nielssen considered the offender's psychiatric care needed review and that he is likely to require long-term treatment for his combination of disorders.

  5. Dr Nielssen expressed the opinion that the offender was confused about his sexuality and sexual identity. The psychiatrist assessed the offender as having a low probability of further similar offences, an assessment based on the absence of other criminogenic risk factors. I note Dr Nielssen considered that the offender "was not thought to have a specific attraction to underage males". It is not clear to me on what the last statement is based, apart from self-reporting by the offender. The Sentencing Assessment Report records the offender attributing his offending "to numerous life stresses" and cited his declining mental health as the major contributing factor to poor decision making. He denied to the author of the Sentencing Assessment Report that he was sexually attracted to children.

  6. I turn then, to the evidence concerning the offender's attitude to the offences. The offender claimed to Dr Nielssen that he had made contact with the underage boys after he was repeatedly rejected by older users of the application he was using on his phone. This assertion was not able to be tested by cross‑examination as the offender did not give evidence on sentence. Given he misrepresented his age to the victims, and in the case of WH suggested that he himself was under 18, I am not prepared to accept that statement, recorded in Dr Nielssen's report as coming from the offender.

  7. The offender is also recorded in Dr Nielssen's report as stating in relation to the victims, "They knew what they were doing. I know that sounds wrong". He is also recorded as saying to the psychiatrist, "It was straight up. I asked if they were interested. At the time I did not believe I was hurting anyone". These statements to Dr Nielssen impact upon my assessment of the level of remorse the offender has demonstrated here. The Sentencing Assessment Report records that the offender has "a well-developed level of understanding of the impact of his offending on the victims and their families, his own family, and the wider community", and that the offender was "disgusted by his own actions".

  8. The offender's letter contains statements of remorse, and on the face of it, appears to show that the offender has some understanding and insight into the serious nature of his offending and the impact that he has had on his two victims. In terms of the risk of reoffending, Dr Nielssen considered that the offender had a low probability of further similar offences occurring. A psychologist with Corrective Services assessed the offender as having a well above average risk of sexual reoffending. That assessment was, however, not based upon a clinical interview or assessment of the offender, but by application of what's referred to as the Static-99R assessment tool utilised by Corrective Services.

  9. Submissions were advanced as to the relevance of the offender's mental health conditions to sentencing. The general principles concerning the relevance of mental health to sentencing are well known and were summarised in the DPP (Cth) v De La Rosa [2010] NSWCCA 194. They are as follows: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for what is termed general deterrence, resulting in a reduction of the sentence which would have otherwise 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 to be served may be reduced. It may reduce or eliminate the significance of specific deterrence.

  10. 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.

  11. In my opinion, there is nothing in Dr Nielssen's report which supports a finding that the offences were in some way caused by the offender's mental health conditions. I note that at the time of the offending, he was capable of holding down a significant position as a manager at Parramatta Leagues Club, which means that the offender was able to function at a reasonably high level despite his mental health conditions. I do not consider that the offender's mental health reduces his moral culpability or blame worthiness for the offences. Nor do I consider that it makes him a less suitable vehicle for the expression of the sentencing principle of general deterrence.

  12. I do find that his mental health is such that his time in custody will be harder than it would be for someone who does not have the mental health conditions that the offender has. In that regard, I note that Dr Nielssen has raised the need for the offender's psychiatric care to be reviewed as soon as possible, and that his mother has requested that Corrective Services conduct such a review, and to date that has not occurred. This has caused me, to a limited degree, to mitigate the sentence I otherwise would have imposed.

Imposition of sentence

  1. The offender pleaded guilty in the Local Court, and I will allow him a 25% discount of his sentence for the utilitarian value of the pleas in accordance with the provisions of the Crimes (Sentencing Procedure) Act.

  2. On balance, given his early pleas of guilty and the statements of remorse that are before me, while I do have a question mark about whether the offender fully understands the serious nature of his offending, I do find that there is evidence of genuine remorse here.

  3. I think the offender has good prospects for rehabilitation. He is relatively young, has no prior record, has considerable family support, and a history of gainful employment. All of those factors support a finding that he has good prospects for rehabilitation. I am unable to make a positive finding that he is unlikely to reoffend, especially when I have regard to the Corrective Services assessment in that regard, although I have also noted Dr Nielssen's opinion.

  4. This will be the offender's first time in custody. He has some mental health issues that require treatment that will make his time in custody more arduous. I am also sentencing him during the COVID-19 pandemic and it is well known that conditions in custody are harsher than they were before the pandemic. Offenders are spending longer in their cells, have few in person visits, and fewer programs are available to them. For the combination of those reasons, I will make a finding of special circumstances when fixing a non‑parole period.

  5. The offender has been in custody since his arrest on 1 July 2021, and I will backdate the sentence to commence on that date to take account of all presentence custody. I will utilise the aggregate sentencing provisions when imposing sentence. If I had not done so, my approach to accumulation would have been as follows. As there are two separate victims, there needs to be considerable accumulation of the sentences imposed in relation to the victim MR on the sentence imposed in relation to the offence concerning WH. The offences concerning MR involve three discreet incidents, so there should be a reasonable degree of accumulation amongst those offences.

  6. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victims and the community, and rehabilitation of the offender.

  7. Sexual offending against young adolescent children is abhorrent to all right-thinking members of our community. Children must be free to make their way through adolescence without being preyed upon by sexual predators like this offender. The adverse impacts of sexual offending upon children, as this Court sees far too often, often last for many years, sometimes for all of the victim's life. The Courts must impose significant penalties on adults who perpetrate sexual offending on such young victims. Where a form of child prostitution is involved in the offending, significant sentences must be imposed to send the message to the community that such offences will not be tolerated.

  8. The maximum penalties and standard non‑parole periods have been taken into account as legislative guideposts. It will shortly be seen that I have departed from the standard non‑parole periods and I have done so due to my assessment of the objective seriousness of the offences and my finding of special circumstances.

  9. The offender Mr Guo is convicted of all the offences to which he has pleaded guilty. I will firstly record the indicative sentences, and I will also record indicative non‑parole periods as the offences are subject to a standard non‑parole period. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier. The sentences the offender will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence and non‑parole period that he will serve. The aggregate sentence is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell him the date it starts from, the date it ends, and the date when he is first eligible for parole. In announcing these sentences, I have obviously had regard to the relevant matters on the relevant form 1s.

  10. The indicative sentence on charge sequence 17, which is the offence concerning WH, is one of three years and nine months imprisonment and there is an indicative non‑parole period of two years and six months.

  11. There is an indicative sentence on sequence 3, which is the first of the offences concerning MR, of three years and three months imprisonment and an indicative non‑parole period of two years and two months.

  12. On sequence 7 there is an indicative sentence of three years and nine months and an indicative non‑parole period of two years and six months.

  13. On the offence in sequence 10 there is an indicative sentence of three years and three months imprisonment and an indicative non‑parole period of two years and two months.

  14. On the offence in sequence 15 there is an indicative sentence of two and a half years imprisonment and an indicative non‑parole period of one year and eight months.

  15. I impose an aggregate sentence of six years imprisonment and an aggregate non‑parole period of four years imprisonment. The sentence commences on 1 July 2021 and expires on 30 June 2027. The non‑parole period expires on 30 June 2025. The earliest date the offender is eligible to be released to parole is the date of the expiry of the non‑parole period, which is 30 June 2025. Whether he is in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of his behaviour in prison in determining whether he is released that date or on another date.

Orders

  1. Impose an aggregate sentence of six years imprisonment and a non-parole period of four years imprisonment. The sentence commences 1 July 2021 and expires on 30 June 2027. The non-parole period expires on 30 June 2025.

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Decision last updated: 15 November 2022

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DPP (Cth) v De La Rosa [2010] NSWCCA 194