R v Hageman

[2025] NSWDC 352

District Court

New South Wales

Medium Neutral Citation:

R v Hageman [2025] NSWDC 352

Hearing dates:

8/4/25-17/4/25, 18/7/25

Date of orders:

18/7/25

Decision date:

18 July 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 10 months with NPP 3 years 6 months (16/4/25-15/10/28).

I find special circumstances.

The indicatives are:

Count 1 – 5 years

Count 2 – 2 years

Count 3 – 2 years 1 month

Catchwords:

Crime – Sentence – Cause person to take intoxicating substance with the intention of enabling him to commit the indictable offence of sexual touching without consent – Sexual touching without consent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Houshyar v R [2022] NSWCCA 245

Irmak v R; Dagdanasar v R [2021] NSWCCA 178

R v Song [2022] NSWDC 100

R v Wilkinson (No. 5) [2009] NSWSC 432

Sharma v R [2022] NSWCCA 190

Category:

Sentence

Parties:

NSW DPP – Crown
Paul Hageman - Offender

Representation:

Ms E Winborne for Crown
Mr H McDuff for Offender

File Number(s):

23/48249

Publication restriction:

Statutory non-publication of the identity of the victim.

REMARKS ON SENTENCE

1. Mr Paul Hageman was the subject of a trial that was heard in April this year before myself and a jury, and on 7 April 2025, the jury found him guilty of all three counts on the indictment. Those three counts for which he must be sentenced are as follows. Count one being an offence of causing a person to take an intoxicating substance, namely methylamphetamine and/or amphetamine with the intention of enabling him to commit the indictable offence of sexual touching without consent. That is an offence under s 38(b) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment.

2. Count 2 and 3 are both counts of an offence under s 61KC(a) of the Crimes Act which are offences of sexually touching another person without consent and carry a maximum penalty of five years imprisonment.

3. The maximum penalties for each of the offences are important guideposts in the sentencing exercise and I have had regard to them for that purpose.

FACTS

4. The facts of the offences are for me to determine based on the evidence at trial. The facts that I find, of course, must be consistent with the jury’s verdicts. Any matters in aggravation must be proved beyond reasonable doubt, whilst matters in mitigation need only be proved on the balance of probabilities.

5. The facts of the offences based on the evidence given at trial have been summarised into a document prepared by the Crown which is entitled “Factual Summary After Trial,” which in large part, has been accepted on behalf of the offender as being an accurate representation of the evidence. I note, of course, that the offender maintains his innocence.

6. The facts that I find based on my examination of the document to which I have just referred and also the evidence given in the trial are as follows.

7. The offender and the victim, I will just call her GG, were both disability support workers at an organisation which provided supported independent living homes for disabled clients. On Saturday 19 March 2022, that being the day before the offences, the offender was working at a supported independent living house at Maryland. That house was a “low support needs” house. There were two clients who lived there, one with the initials EJ, who had autism, and the other the initials AC, who was in a wheelchair due to spina bifida.

8. The defendant took over that shift on the Saturday from the victim. Upon the shift changeover with the victim on that day, the offender made her a coffee. On the morning of Sunday 20 March, 2022, the next day at about 7.17am, the offender used the work mobile phone to send a text to the victim which said, “Good morning, GG,” referring only to her first name, however, “Are you able to start at 1pm today instead of 2pm?” A copy of that text became exhibit 2 in the trial. The victim replied, “Yeah, no worries,” and the offender responded, “You are awesome.”

9. The suggested facts provided by the Crown suggest that the offender later deleted those texts from the phone sometime before he left the house later that afternoon or early evening. I do accept that he did delete those texts and I will return to that issue later in these reasons.

10. The offender did not have authorisation to make changes to other employees shifts without approval of management and I conclude that he did not seek approval to do that before asking the victim to come in early. The victim did attend work early, an hour earlier at 1pm as requested by the offender. The procedure at the house was that there would ordinarily be a verbal handover as well as a handover of written material to update the incoming worker as to any relevant matters. The evidence was that that handover would ordinarily take less than 10 minutes in a normal shift, although sometimes it could extend up to about 20 minutes.

11. On the day in question, the offender had made the victim a cup of noticeably strong coffee before her arrival, which was in the microwave. He offered that coffee to her and she drank it, according to her, because she felt that would be the polite thing. The offender told the victim that he had an appointment and that he had to leave early, but in fact, he did not leave, at least not initially.

12. The offender asked the victim to participate in a sensory experiment in which he blindfolded her and asked her to taste some items of food. The items of food were a piece of cheese and a piece of chocolate. The victim agreed to engage in this experiment and around about that time, the offender prepared some cheese and some chocolate. The victim did not see all of this process of preparation. The offender then took the victim into the lockable office at the house, closed the door and then placed a blindfold around her eyes. She took a cube of cheese from his hand and she ate it. Unknown to the victim, the offender had effectively doctored the cheese by placing a quantity of methylamphetamine or amphetamine inside it. The victim noticed that the cheese tasted “off” or acidic and she said it reminded her of the taste of cocaine which she had consumed once in her prior life some months earlier.

13. The victim also consumed a square of chocolate, but had a sip of water quickly thereafter so as to wash the taste from her mouth. She did not say anything to the offender about her concerns about the taste of these items because she was worried about what his reaction might be, and so she just drank the water and “tried to play it off”. However, she stood up after tasting the bitterness, or as she put it, off-ness of these substances and took off the blindfold because she felt uncomfortable about what had just happened. Within about an hour, the victim began to experience symptoms consistent with having been drugged with something.

14. Evidence was called in the trial to the effect that the symptoms and signs shown by the victim were consistent with her having ingested a quantity of methylamphetamine, a toxic level. I note that in relation to the expression toxic level, that I have just used, that this needs to be understood in the context that the victim was not a regular user or indeed, a user at all, of methylamphetamine, and so a toxic dose would not necessarily have been one that required a large quantity of that substance.

15. I am satisfied that after taking the substance, however, the victim began to feel very uncomfortable and was very jittery, had a lot of energy and also noticed that her jaw was sore from clenching her teeth. She was also “shaky in her body”.

16. At some stage after taking the substances, she sent a message to her friend Kora, saying “I think I’ve been drugged.” She, over the course of the afternoon, sent to her friend numerous messages and also spoke to her directly, telling her friend that she was scared. She also told her friend that the offender kept following her around the house when she was trying to do other things. She told her friend that she was going to go out to the work car to get away from the offender.

17. Evidence was given by the friend, Kora, in the trial who said that she noticed the victim appeared to be very on edge and was crying at times and a bit “shaky” and not her usual self. Evidence was also given from one of the clients in the house, EJ, who observed that the offender kept shutting the office door and the victim, who was inside, kept opening it. He also observed that the victim’s hands were “shaky” and that as he put it, “Everywhere that GG went, (the offender) followed.”

18. The victim at some stage went to the garage to attend to some duties relating to a vehicle there. The offender followed her. She sat in the driver’s seat of the car so as to attempt to check the vehicle’s odometer reading, which was part of her employment tasks. When she did that, the offender reached into the car and rubbed her genital area over her shorts. That is the sexual touching offence that is count 2. The victim threw his hand away and asked what he was doing and she froze. However, the offender reached in again rubbed her genital region over her shorts. She again, threw his hand away and told him not to touch her. He said, “No one needs to know,” and told her it could be, “Just a one time thing.” This touching on the genital region through clothing is the subject of count 3, which is another sexual touching offence.

19. After this, the offender crouched next to the victim and rubbed her thigh telling her he wanted to “Fuck her.” However, the victim repeatedly told him that nothing was going to happen. The offender got up and went to the bonnet of the car and at that time the victim was feeling really uncomfortable. She went back into the office and sat on a bed in the office with a folder of papers for the purposes of trying to distract herself from what was happening.

20. The offender followed her back into the office, closed the door and turned off the light. He then moved the computer chair within touching distance of her and continued to try to pressure her to have sexual intercourse with him. He continuously touched her legs and said he wanted to have sex with her and he had fantasies about what he would do to her. He also tried to persuade her to let him perform cunnilingus on her using the words, “eat her out”, and said he, “wanted more.” The victim kept moving away and the offender kept on touching her. She said he was also touching himself at some point. The victim felt intimidated understandably, but did not feel able to leave the office. At one point the offender stood by the door and was staring at her.

21. After some time which was around about an hour, I am satisfied, the victim left the office, that is, the office within the house. Once again she went to try to find some other task to do so as to keep away from the offender, which she was trying to do essentially throughout her shift.

22. However, wherever she went the offender continued to follow her which understandably made her feel uncomfortable. During this period the offender was also making sexual comments to the victim including that he, “wanted to taste” her and that he wanted to sleep with her.

23. At one stage the victim made a comment about feeling that she had a lot of energy which was no doubt due to the drug that she had ingested and the offender said he “nnew some ways that we could burn that energy off.” He then moved her hair from her neck and asked the victim if she was “wearing any underwear,” whether she was “groomed down there,” and again said that he “wanted to taste” her. This continued for a period of quite some hours, and I am satisfied that it continued on and off up to or around about 7pm that evening. The offender did however eventually leave the premises which I conclude was somewhere around about 7 o’clock that evening. As soon as the offender left, the victim called her friend Kora, to whom I have earlier referred, and also her sister. She also called the on-call supervisor Ms Allen and made immediate complaint about what had happened. The supervisor, Ms Allen, called her operations manager Ms Harland and advised about an alleged sexual assault.

24. As a result, Ms Harland, Ms Allen, and the victim’s sister attended at the house. They noticed that the victim was distraught, crying and hysterical. She again made complaint about the things that had been done to her, including making reference to being drugged and being touched “between the legs.” Observations were made by other people that she appeared to have been affected by something, and expert evidence was given in the trial by a Dr Fu, a pharmacologist to the effect that the symptoms and signs described were consistent with the ingestion of methylamphetamine at a toxic level.

25. The victim’s mother, who herself was a registered nurse, observed that her daughter’s pupils were dilated, such that she concluded there was something wrong with her. The victim’s mother and sister took her to the John Hunter Hospital to get a test done and she was spoken to by a doctor there and reported an alleged assault and drugging at work. The doctor observed the victim to have a tremor and dilated pupils and gave her some sedatives to counteract the anxiety and or symptoms that she was experiencing.

26. However, the victim was told that the hospital would not do a drug test and the victim went home. The following day she went to the Belmont Police Station and there she gave a statement. She also attended her GP and obtained a referral to a pathology service where she gave a urine sample. The pathology results of that urine sample showed that there was present metabolites of diazepam consistent with what the victim had been given at hospital, but also confirmed the presence of methylamphetamine and its metabolite amphetamine. The ratio between the two drugs noted in that test was consistent with ingestion having happened the day before. The victim provided those results to police. She did not return to her employment.

27. The offender was subsequently interviewed by a workplace investigator on 13 April 2022 and subsequently resigned from his job. Furthermore, on 13 February 2023 he was interviewed by police and arrested. In his interview, however, he denied having committed any offences. Those, in essence, are the facts on which I proceed to sentence.

OBJECTIVE SERIOUSNESS

28. Each of the offences before the Court are potentially very serious, as is indicated by the maximum penalties, especially for the count 1 offence. However, it is important that I examine the proven facts and other relevant circumstances so as to make an assessment of the objective seriousness of the particular examples of these offences that arise in this case.

29. Starting with count 1. There are a number of matters that are relevant to the objective seriousness of count 1. Firstly, the intoxicating substance was methylamphetamine which is a dangerous and illegal substance that is highly addictive.

30. Secondly, the quantity of drug that was administered to the victim was not insubstantial given that Doctor Fu said it had a toxic effect. The effects of the drug would have been more pronounced given that the victim was not a user of the drug, a matter about which the offender, I conclude, would have been aware.

31. Thirdly, the offence involved some planning. The offender argued in the sentence proceedings today that this planning did not extend beyond obtaining the drug and other ingredients and coming up with the idea of conducting a “sensory game.” However, in my view, the planning and forethought did go beyond these aspects and I infer and am satisfied beyond reasonable doubt that it included arranging for the victim to attend early, and his actions in making her a coffee on the day of the offending as a way of normalising the offender’s behaviour in asking the victim to consume something provided by him.

32. Fourthly, the offence occurred in the victim’s workplace and in circumstances where she was somewhat isolated and vulnerable.

33. Fifthly, the indictable offence which the offender intended to commit by administering the drug was sexual touching without consent, which itself carries a maximum penalty of five years imprisonment, which is not inconsiderable, but is towards the lower range of objective seriousness of indictable offences capable of falling within the count 1 offence.

34. Sixthly, the substance administered caused discomfort and anxiety and the effects lasted beyond the day of the offence.

35. Seventhly, the intention and efforts to sexually touch the victim continued for many hours given the evidence of the victim which I accept beyond reasonable doubt and the fact which I also accept beyond reasonable doubt that the offender remained at the location until around 7pm.

36. Eighthly, there is the victim’s young age and the fact that the offender was 28 years older. This age difference created a power imbalance that made the victim more likely to go along with the offender’s request that she participate in his “experiment.” On the other hand the administration of the drug did not have the effect of rendering the victim unconscious or insensible and indeed the type of substance used would not ordinarily be expected to have ever had that effect.

37. The Crown submitted that the offence is in the high range of objective seriousness, while the offender argues that it falls below the mid-range. Having had regard to all of the facts and submissions and the matters to which I have referred above, I think the objective seriousness of the offence falls slightly below the mid-range.

38. The Crown argues that both counts 2 and 3 are in the high range of objective seriousness. Both counts involved touching of the victim’s genital area through her clothes. Again, there was planning involved as I have already set out. I take care not to double count this aspect however, given the overlap between these two offences and count 1.

39. The touching was not skin on skin contact. The touching was accompanied by repeated suggestions that the victim engage in sexual intercourse with the offender, which continued for some hours despite her robust rejections of these suggestions.

40. The fact that these comments and actions continued after the two sexual touching events had taken place, does not, to my mind, increase the objective seriousness of either offence. However, it is relevant because it demonstrates that the sexual touching offences in counts 2 and 3 were not isolated events.

41. With respect to the offender’s knowledge about lack of consent, I am satisfied beyond reasonable doubt that he was at least reckless as to whether or not there was consent to the first incident of touching, which is count 2. However, in relation to count 3, I have no doubt that he had actual knowledge that there was no consent, given the victim’s actions in telling him “no” or words to that effect, and pushing his hand away on each occasion.

42. The offences are each made more serious because they occurred in circumstances where the victim had, without her consent, been administered an intoxicating drug, see the decision in Irmak v R; Dagdanasar v R [2021] NSWCCA 178 at paragraph 134. However, again, I am being careful not to double count this aspect given the nature of the count 1 offence.

43. Having regard to all of the facts, the submissions and the matters which I have just highlighted, I regard the count 2 and count 3 offences as being slightly below the mid-range of objective seriousness.

44. The Crown argued that the objective seriousness of the offences would also be informed by reason that the offender engaged in a “cover up” by “blackening the victim’s name professionally” and making unfounded allegations of inappropriate behaviour, so as to cover his tracks.

45. This is a reference to the fact that in the workplace investigation and in his ERISP with the police, the offender suggested that he had remained at the house because he had concerns about the victim’s interaction with one of the clients. The jury apparently did not accept this suggestion, and neither do I. However, given that the workplace interview occurred about a month after the offending, and the ERISP many months later, I do not regard his assertions in those two interviews as being part of the objective seriousness of any of the offences.

28. As Johnson J said in R v Wilkinson (No. 5) [2009] NSWSC 432, admittedly in a different context:

“Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime... Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or mitigation.”

47. His Honour then referred by way of analogy as follows,

“The dumping of a body by a murderer constitutes an aggravated circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse.”

48. His Honour went on, however, to say,

“However, the offender’s subsequent false statements to police and others concerning the whereabouts of the body cannot, in my view, be taken into account in an assessment of the objective seriousness of the murder itself.”

49. Those comments of his Honour were at paragraphs 61 and 62 of that decision.

50. As I have said, given the separation in time between the offences and the two interviews to which I have made reference, I do not regard those as informing the objective seriousness of any of the offences. They are, however, of course, relevant to any considerations of remorse, although given that the offender maintains his innocence, this is not a case where there is any remorse, in any event.

51. I record also that in assessing the objective seriousness of all three offences, I have taken into account my conclusion, of which I am satisfied beyond reasonable doubt, that the offender deleted from the work phone the texts that he had sent to the victim earlier that day. There is, as the Crown submitted, no rational evidence to support the conclusion that anyone else deleted those texts, and other witnesses denied doing so, whereas the offender had a clear motive to do so, and had access to the phone.

52. I am satisfied beyond reasonable doubt that he took this action to reduce the risk that his actions in committing each of the three offences would be uncovered.

53. While in this case there is no victim impact statement, each of the three offences must be approached on the basis that they would have caused significant psychological harm to the victim which I am sure has extended well beyond the days and weeks after the offending and will be with her for some time to come.

SUBJECTIVE MATTERS

54. Turning then to subjective matters relating to the offender. He is currently 50 years of age. His criminal history is limited and consists only of drink driving offences and an offence of malicious damage. It was argued that the Court should treat him as a person of prior good character. As I have said, his criminal history is limited. On balance I accept that in the period leading up to the offending he was generally of good character and living a pro-social life. However, these are not his first convictions for a criminal offence.

55. The offender’s personal circumstances and background are before the Court by means of the psychological report of Jason Borkowski. He notes that the offender was raised in the Newcastle area primarily by his natural parents and has younger sisters who are twins. He was apparently removed from his mother’s care in infancy and lived for a time with his paternal grandparents after his mother was “institutionalised” although there is no other detail about this. Nonetheless, he reported this as an unsettling and confusing time, but that he returned to the care of his parents for the majority of his formative years. The majority of those years were in a stable, supportive, caring and pro-social environment. His parents, however, separated when he was about 18, although by then he had moved out of home and was living independently and so this did not affect him notably.

56. He attended Belmont Primary School and Belmont High School and obtained his School Certificate, but left at the start of year 12 and commenced work as a labourer. Since then he has had a large number of different jobs before taking on the disability support work where he was employed for about six years before the offences.

57. The offender’s living arrangements as an adult have been unstable at times and he has experienced periods of homelessness, usually after ending a relationship. The offender has had a number of relationships as an adult and has a 14-year-old daughter to one of them with whom he still has regular contact. In referring to regular contact there I am referring to the contact with the daughter. The offender is not, however, currently in a relationship.

58. Since being in custody the offender has engaged in employment and at the time of the psychological assessment was working in the textiles workshop. He is relatively healthy other than for ongoing headaches and intermittent problems with pain and swelling in his testicles.

59. The offender told the psychologist that he experienced a significant trauma at around age eight or nine when he was sexually abused on several occasions by an adult neighbour who also sexually abused his twin sisters and a female neighbour. He told the psychologist that while it was distressing to be sexually abused, the more concerning thing was having to witness the same perpetrator sexually abusing his sisters and the neighbour. He said that while they informed their parents at the time, they were not believed.

60. The offender said that the experience of being sexually abused and witnessing the sexual abuse of these others had a significant impact on his psychological and mental health functioning. He said he had tried to forget about it, but that in his early twenties he was admitted to a mental health ward due to self-harm and ongoing rumination, depression, anxiety and other trauma related symptoms. He said he used cannabis and alcohol as a coping mechanism, but that his mental health improved to some extent in his later twenties after talking about the matter with his sisters.

61. While the offender told the psychologist that he had experienced mental health problems intermittently throughout his life, he was mentally stable and stable in his employment, living arrangements and general lifestyle at the time of the offences. He said though, that after being charged, his mental health declined with feelings of hopelessness, withdrawal, and a feeling of being “cheated, let down and ripped off”. This presumably is a reference to his maintenance of his innocence of the offences on which the jury has found him guilty.

62. The offender has some history of alcohol and cannabis use, but this does not appear to have been a significant problem at the time of the offences or currently. Ultimately, the psychologist concluded that the offender’s history is consistent with a mostly stable, caring and pro-social environment, without exposure to parental abuse or discord, violence, neglect, poverty or substance abuse.

63. The psychologist noted that the offender appears to have been provided with his basic emotional and practical care needs, this being a reference to his background and upbringing as a younger person. The psychologist added, however, that there are indicators of mental health concerns in relation to the offender’s mother, and there is also the sexual abuse experienced and witnessed by the offender. The psychologist expressed the opinion that these and other issues underlie long-term depressive episodes and possible trauma related symptomatology with a link to suicidal behaviour and substance abuse.

64. Ultimately, the psychologist concluded that the offender meets the diagnosis for major depressive disorder at a moderate level and that his condition is consistent with adjustment disorder with mixed anxiety and depressed mood. The psychologist says that Post-Traumatic Stress Disorder cannot be ruled out either, but he provides no diagnosis of this.

65. The psychologist concluded, however, that notwithstanding these challenges the offender was able to establish reasonable stability in his life, and at the time of the offences he had stability in his employment, living arrangements and general lifestyle functioning and was not experiencing any notable mental health issues.

66. While I accept this conclusion that the offender was generally mentally stable at the time of the offending, I do take into account the uncontested evidence that the offender’s father had passed away around the time of the offending. While there is no direct evidence about any impact this might have had on the offender and on the commission of the offences, I infer that the death of the offender’s father is a matter that made the offender less able to resist urges such as those that led to these offences. I accept that this reduces his moral culpability to a degree, but in the absence of any direct evidence from the offender about it, it is not a matter to which I attach great weight.

REMORSE

67. The offender maintains his innocence and so there is no remorse in this case.

RISK

68. In terms of the offender’s future prospects and his risk of reoffending, I make the following observations and findings. It appears that the psychologist considers him a fairly low risk of reoffending while in the Sentencing Assessment Report it is suggested he is a medium risk. His criminal history, as I have noted, is very limited which is a positive thing.

69. He maintains the support of his mother, his daughter and the daughter’s mother as well as several friends, although it is unclear if any of them know about these offences, which is doubtful given that the offender told the psychologist that since being charged he has become increasingly isolated from his support networks. Furthermore, I note that none of these people have attended the sentencing hearing today.

70. Nonetheless, it appears that he will have some social support on is release and he has plans to renew his forklift licence. Given his history of fairly regular employment which includes his current period in custody where he is engaged in employment, I am satisfied that he is likely to be gainfully employed again after his release.

71. Balancing all of these matters, I think he has reasonable prospects of rehabilitation and that his risk of reoffending is medium to low.

DETERMINATION

72. Turning to my ultimate determination, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. All of them are relevant, but I do not intend to recite them all. However, I accept that the importance of personal deterrence is reduced slightly given the offender’s minimal criminal history, the deterrent effect arising from this being his first custody period, his mental health issues and the fact that he was subject to fairly onerous bail conditions for over two years before he was placed into custody. I also conclude that the significance of general deterrence is reduced slightly by reason of my findings about mental health and the death of the offender’s father.

73. For the purposes of s 5 of the same Act, I am satisfied that no penalty other than imprisonment is appropriate for each of the three offences. I intend to impose an aggregate sentence given that there are three offences. By reason of that I must nominate the indicative terms for each offence and I will do that in just a moment.

TOTALITY

74. Given that there are three offences, I have also given close consideration to totality principles, in other words, the question of to what extent, if any, there should be any notional accumulation amongst the three sentences. There is, as the Crown has acknowledged, a significant degree of overlap between count 1 and count 2 and similarly between count 1 and count 3 given that the count 1 offence was committed with the intention of committing the sexual touching offences that are set out in counts 2 and 3.

75. In my view therefore, by reason of that degree of overlap, the sentence to be imposed for each of the offences should be concurrent to a substantial degree, but not entirely. That is because not only did the offender commit the count 1 offence with the intention of sexually touching, but he went on to successfully commit the actual sexual touching that are the subject of counts 2 and 3.

76. There must therefore, in my view, be some notional accumulation so as to acknowledge the separate offending that is the subject of the sexual touching in count 2 and in count 3. However, I need also to look at the overall sentence and ensure so far as I can that it does not involve one that is inappropriately crushing.

77. In determining the indicative terms and also the overall aggregate sentence I have had regard to material to which I was taken which included some JIRS statistics, although I acknowledge that they are of limited assistance given that they only relate to four cases.

78. I have also had regard to the three cases to which the Crown took my attention, those being Houshyar v R [2022] NSWCCA 245, Sharma v R [2022] NSWCCA 190 and R v Song [2022] NSWDC 100. I do not suggest that any of those cases are comparable to this case. Nonetheless, I have had regard to their facts and the observations made in them and they have been of some assistance in a broad sense.

79. The indicative terms for each of the three offences are as follows: for count 1, five years’ imprisonment; for count 2, two years’ imprisonment; for count 3, two years, one month imprisonment. Instead I impose an aggregate head sentence of five years, ten months. I impose a non-parole period of three years, six months.

80. I have made a finding of special circumstances for adjusting the ratio between head sentence and non-parole. That is based on this being the offender’s first period of custody, and his resultant increased vulnerability as noted by the psychologist, his mental health issues, and the need for supervision over a significant period upon his release to the community.

81. The sentence will date from 17 April 2025. The head sentence therefore will expire on 16 February 2031. The non-parole period will expire on 16 October 2028. I direct that a copy of the psychological report of Jason Borkowski be sent to Justice Health.

82. Ms Crown, Mr McDuff, anything to raise about those remarks?

83. WINBORNE: No, your Honour.

84. MCDUFF: The only thing I would raise, sorry, is just in relation to the start date, your Honour. He’s been in custody from 17 April. That was when he went into detention initially, but your Honour would have seen and it was part of the factual findings he was arrested initially for one day that he then received bail later that day. It may be the case that your Honour consider that or it may be--

85. HIS HONOUR: All right, well, I will amend that date. The sentence will date from 16 April 2025 and therefore the head sentence will expire on 15 February 2031 and the non-parole period on 15 October 2028.

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Decision last updated: 08 September 2025