R v Hassenein Naderi

Case •

[2022] NSWDC 534

•

07 November 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Hassenein NADERI [2022] NSWDC 534
Hearing dates: 19 September, 7 October 2022
Date of orders: 7 November 2022
Decision date: 07 November 2022
Jurisdiction:Criminal
Before: Lerve DCJ
Decision:

Sentenced to an aggregate term of imprisonment. See [132] to [139]

Catchwords:

CRIME - sentencing - charges of sexual assault and other offences relating to six difference victims, three of whom were children - threats to disseminate images - Bugmy factors - low IQ

Legislation Cited:

Crimes Act 1900

Crimes (Domestic & Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Mental Health Act, 2007

Cases Cited:

Aslan v R [2014] NSWCCA 114

Bugmy v The Queen [2013] HCA 37

Burchell (1987) 34 A Crim R 148

DPP (Cth) v De la Rosa (2010) 79 NSWLR 1

Dungay v R [2020] NSWCCA 209

Katsis v R [2018] NSWCCA 9

Mbele v R [2021] NSWCCA 182

MC v R [2017] NSWCCA 316

Muldrock v The Queen [2011] HCA 39

Nasrallah v R [2021] NSWCCA 207

Perkins v R [2018] NSWCCA 62

R v Alkanaan [2017] NSWCCA 56

R v Irwin [2019] NSWCCA 133

R v Muldoon unrep NSWCCA 13.12.1990

R v PGM (2008) 187 A Crim R 152

R v Van Ryn [2016] NSWCCA 1

Tepania v R [2018] NSWCCA 247

The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146

Toller v R [2021] NSWCCA 204

Valentine v R [2020] NSWCCA 116

Category:Sentence
Parties: Regina
Hassenein NADERI
Representation:

Counsel:
Mr J Sfinas for the Crown
Mr G Thomas for the Offender

Solicitors:
Ms K Rankin for the Director of Public Prosecutions
Mr D Wakim for the Offender
File Number(s): 2020/00363328
Publication restriction: There is to be no publication of the names of the complainants nor any information which might tend to identify them.

REMARKS ON SENTENCE

  1. The offender on 10 November 2021 at the Campbelltown Local Court entered pleas of guilty to a number of charges of sexual assault and other offences relating to six different victims, three of whom were adults and three of whom were children. Those pleas of guilty were adhered to at the sentence hearing at the Downing Centre District Court on 19 September 2022.

  2. One of the few matters that was uncontroversial at the sentence hearing is that the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

  3. This has been a particularly difficult and frustrating sentencing exercise. I was allocated the matter while on leave in Sydney. There were a number of issues with the agreed facts. It was necessary to have my Associate send a number of requisitions to counsel.

  4. All offences are different sequences within H 77892158.

Maximum Penalties:

  1. The offences for which the offender appears for sentence and the applicable maximum penalties are as follows:

In respect of IG

Sequence 13 – Sexual Intercourse with Person 10-14 years – s 66C(1) Crimes Act 1900 - 16 years with a standard non-parole period (SNPP) of 7 years;

Attaching to sequence 13 is a Form 1 document containing 5 offences, namely:

Sequence 1 – Engage in Conduct that exposed child under 14 to indecent material – s 66EB(3) Crimes Act – 12 years;

Sequence 2 – Intentionally sexually touch child between 10-16 years – s 66DB(a) Crimes Act – 10 years;

Sequence 4 – Intentionally do sexual act with child between 10-16 years – s 66DD(a) Crimes Act – 2 years;

Sequence 5 – Intentionally sexually touch child 10-16 years – s 66DB(a) Crimes Act – 10 years;

Sequence 15 – Intentionally do sexual act with a child 10-16 years – s 66DD(a) Crimes Act – 2 years;

Sequence 20 – Sexual Intercourse with Person 10-14 years – s 66C(1) Crimes Act - 16 years; SNPP 7 years;

Attaching to sequence 20 is a Form 1 document containing a further offence:

Sequence 19 - Sexual Intercourse with a Child 10-14 years s 66C(1) Crimes Act - 16 years ; SNPP 7 years.

Sequence 26 – Sexual Intercourse with Person 10-14 years – s 66C(1) Crimes Act - 16 years; SNPP 7 years.

Attaching to sequence 26 is a Form 1 containing two offences:

Sequence 49 - Produce Child Abuse Material - s 91H(2) Crimes Act - 10 years imprisonment; and

Sequence 53 - Incite a child between 10‑16 years to do a sexual act - s 66DD(b) Crimes Act - 2 years.

In respect of KL

Sequence 29 – Intentionally Record Intimate Image Without Consent – s 91P(1) Crimes Act – maximum penalty 3 years imprisonment (or 100 penalty units or both);

Sequence 55 – Procure Person for Prostitution – s 91A Crimes Act –7 years; and

Sequence 56 – Intimidation – s 13(1) Crimes (Domestic & Personal Violence) Act, 2007 – 5 years.

In respect of ES

Sequence 63 – Intentionally Distribute Intimate Image Without Consent – s 91Q Crimes Act – 3 years imprisonment (or 100 penalty units or both).

In respect of MW

Sequence 35 – Sexual Intercourse with Child 10-14 years – s 66C(1) Crimes Act – 16 years , SNPP 7 years;

Sequence 37 - Incite Child 10-16 years to Sexually Touch – s 66DB(b) Crimes Act – maximum penalty 10 years imprisonment. I note that in respect of this matter the Crown maintains that the offence carries a standard non-parole period of 8 years. A check with the table at s 54A of the Crimes (Sentencing Procedure) Act 1999 indicates that there is no standard non-parole period specified in respect of this offence; and

Sequence 38 – Produce Child Abuse Material – s 91H(2) Crimes Act – 10 years

In respect of LI

Sequence 46 – Produce Child Abuse Material – s 91H(2) Crimes Act – maximum penalty 10 years imprisonment;

Attaching to sequence 46 is a Form 1 which contains one offence:

Sequence 61 - Disseminate Child Abuse Material contrary to s 91H(2) of the Crimes Act - 10 years.

Sequence 64 – Sexual Intercourse with a Child 14-16 years – s 66C(3) Crimes Act –10 years;

Attaching to Sequence 64 is a Form 1 document containing one further offence:

Sequence 66 - Sexual Intercourse with a Child 14-16 years - s 66C(3) - 10 years.

Sequence 65 – Sexual Intercourse with a Child 14-16 years – s 66C(3) Crimes Act – maximum penalty 10 years imprisonment.

Attaching to sequence 65 is a Form 1 document relating to 2 offences:

Sequence 67 - Sexual Intercourse with a child between 14-16 years - s 66C(3) Crimes Act – 10 years; and

Sequence 68 - Sexual Intercourse with a child between 14-16 years – s 66C(3) Crimes Act – 10 years.

In respect of TL

Sequence 47 – Threaten to Distribute Intimate Image without Consent – s 91R(2) Crimes Act –3 years (or 100 penalty units or both).

Form 1 Matters

  1. This sentence matter is complicated by a number of factors, not the least of which is multiple Form 1 documents. Where there are Form 1 document(s) attaching to a matter I will need to ensure that proper regard is made and the principles applied as enunciated by the Court of Criminal Appeal in The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (Guideline Judgment on Form 1 matters) (2002) 56 NSWLR 146.

  2. I was somewhat concerned when I read the Crown’s initial written submissions at p 5. The Crown submitted in respect of the offending in respect of the victim LI that “the offending attached to the act of producing child abuse material increases the penalty of the principal offence because dissemination comprehends different and additional criminality”. A little later (also p 5) the Crown submits that “the offending attached to the act of penile vaginal intercourse is another act being fellatio. This increases the penalty of the principal offence because it is a different and additional form of criminality”

  3. It is perhaps instructive to return to the “Guideline Judgement”. At [42] Spigelman CJ (Wood CJ at CL, Grove Sully & James JJ agreeing) said:

“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another”.

  1. For a number of reasons, I sought further submissions from the parties. Part of the communication sent by my Associate to counsel was a reminder to the Crown of the Guideline Judgment. One view of the reply the Crown submits in response to the request for further submissions is that that the Court should indicate numerically the extent to which the sentence on the substantive matter is increased. If that is the submission, then that is the first time in my almost 18 years as a judicial officer (Local Court and District Court) that that submission has been made to me. Returning to the Guideline Judgement Spigelman CJ went on to say at [44]-[45]:

“The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)

The suggestion in the Attorney's proposed guideline that the increase in penalty should normally be specified may have been appropriate if the Attorney's basic approach were to be adopted, i.e. that in some senses sentences were being imposed for the Form 1 offences. Once that approach is rejected, specification of quantum is inappropriate”.

  1. Accordingly, I take the view that to quantify numerically the extent to which sentence on the substantive matter is increased by reason of the Form 1 is not only inappropriate but quite contrary to long established principle and practice. For those reasons I will not take that course.   

Facts

  1. Given the multiplicity of matters on which the court has to pass sentence, it is appropriate that I deal with the issue of the seriousness of the matters at the time of dealing with the facts rather than under a separate heading. Before proceeding to the facts, I note that Professor Stephen Woods who has provided a very comprehensive psychological report says that at the time of the offending the offender was suffering a number of mental health conditions. Professor Woods also gave evidence at the sentencing that he estimated the IQ of the offender to be “about 80”. These factors impact on the finding of objective seriousness conformably with what the Court of Criminal Appeal said in Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)”.

  1. On the issue of moral culpability Johnson J went on to say in Tepania at [119]:

“Taking into account an offender’s moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”

  1. Neither party referred either in their original written or oral submissions to the decision in Tepania and the issue was raised by me with counsel after I had initially reserved. This was the particular issue that caused me to call for further submissions from the parties. A hard copy of the email sent by my Associate to counsel is marked as an MFI and will remain with the papers.

  2. In supplementary submissions the Crown, relying on the decisions of Aslan v R [2014] NSWCCA 114 and R v Alkanaan [2017] NSWCCA 56, submits that the principles in DPP (Cth) vDe la Rosa (2010) 79 NSWLR 1 are not absolute and have to be considered in the circumstance of each individual case. For reasons on which I will expand upon later, I am satisfied of a causal connection between the mental health conditions and the level of intellectual functioning of the offender and the offending.

  3. Generally, when assessing sexual offending against children the factors that go to inform the seriousness of the matter include the age of the child – the younger the child generally the more serious – and the type of offending, including the type of sexual intercourse as defined by s 61H. However, there is no hierarchy of the type of sexual intercourse. The age difference between the victim and the offender is relevant as are the general circumstances surrounding the offending.

In respect of IG

  1. At the time of the offending the offender was aged 22 or 23 years of age. The victim IG was 13 or 14 years of age. It seems that they were known to each other. On 28 December 2019 the victim received a message from the offender on Snapchat. The offender enquired of the victim her age and she replied 13. The offender replied that he was too old for her. He asked for the victim to send a photograph, which she did. The offender then said that he was afraid to be friends with the victim as she might report him because of her age. There was then an exchange which is reproduced in the statement of agreed facts which clearly relates to sexual activity.

  2. The victim and the offender continued to communicate over some time. The conversations had sexual content including whether the victim played with herself and watched pornography. The offender suggested at one stage that they watch pornography together in the car and then “do it to each other haha”. The offender also offered to teach the victim “everything and all” and that he would teach her to “suck his dick”. Some two months later the victim and the offender began to communicate with each other using Instagram. Throughout their communications the offender invited the victim to send to him nude photographs of herself. The victim complied, sending the offender photographs of her naked breasts, bottom and her vagina. The facts recite this occurred about 20 times. The victim and the offender met in person in January 2020.

  3. The facts then go on to deal with sequences one, two, four and five, which are all matters on one of the Form 1 documents. It seems that these matters occurred as part of the one ongoing episode. During the first week of January 2020 while the victim was on school holidays the offender arranged to pick her up from her home. They drove to an unknown park in the suburb in which the victim lived. After engaging in small talk for some time the offender asked the victim to get into the back seat of the vehicle and she did so. They hugged and she leaned against his chest. The offender asked the victim whether she had masturbated and if she did so did she watch pornography. He then began to search pornography on his phone and showed her two pornographic videos. The videos depicted a female fellating a male and the two of them having penile vaginal intercourse. This is the conduct to which sequence 1 relates. Whilst they were watching the video the victim’s hand was next to the offender’s leg. He told her not to be shy and that she could play with herself. He pushed her arm towards her crotch. With the pornographic video still playing, the offender placed his hand on the victim’s breasts on the outside of clothing and rubbed them. He then placed his hand inside her clothing, beneath her bra and rubbed her breasts. This touching occurred for about five minutes. This is the conduct to which sequence 2 relates.

  4. The offender put his phone down and with the video continuing to play told the victim to get up and turn around, which she did. The offender lay down on the back seat the victim laid down on top of him. He then leaned in for a kiss but the victim pulled back saying that she had not done this before. The offender said that it was okay and to close her eyes, then pulled the victim towards him and began to (to use the words in the facts) “make out”. After a couple of minutes of kissing the offender noticed that there were other cars nearby. He then drove to another location. When they arrived at this new location he told the victim to get into the back seat. While they were both in the back seat he placed the victim’s hand on top of her vagina. However, the offender left his hand on hers and began moving the victim’s hand in a rubbing motion over the top of the victim’s vagina on the outside of her clothing. He then took his hand off the victim’s hand and slowly put his hand down the victim’s pants on top of her underwear and rubbed her vagina over her underwear. He then inserted his hand under her underwear and rubbed her vagina in a circular motion for approximately five minutes. This is the conduct which sequence 5 relates.

  5. At the bottom of page 2 of 16 of the statement of agreed facts there is a heading “sequence 8 - Have Sexual Intercourse with child 10-14 years”. In the course of preparation of these reasons it was discovered that sequence 8 was withdrawn in the Local Court. The facts I presume relate to conduct that leads up to the conduct to which sequence 13 relates. The facts recite the offender pulled down the victim’s clothing and inserted one finger into her vagina. He removed his own clothing and placed the victim’s hand on his erect penis and moved her hand up and down on his penis for about 30 seconds. He then pushed the victim’s head towards his penis and placed his penis into her mouth the offender had both his hands on the back of the victim’s head and pushed and pulled her head so that his penis would go in and out of her mouth.

  6. Going to sequence 13, i.e. one of the substantive matters, soon thereafter the victim was lying on her back with the offender on top of her. The offender pulled the victim’s legs apart and attempted to insert his penis into the victim’s vagina saying, “don’t worry I’ll just put the tip in”. He inserted his penis into the victim’s vagina which caused the victim to feel pain. The offender slowly inserted his penis but did not insert it all the way in and then pulled it out a little bit. He did this a few times over a period of time that was under 10 minutes. The offender stopped and they both sat up. The victim saw the time on the offender’s phone and said that she needed to go home. They both dressed and the offender drove the victim home.

  7. The victim was 13 and the offender was in his early 20’s. The victim was towards the upper end of a limited age-range. The intercourse was penile vaginal which lasted for a short time. There was no ejaculation. The matter is below mid-range but not significantly so.

  1. The facts then contain extracts of a Snapchat conversation between the offender and the victim on 9 January 2020, 10 January 2020, 12 January 2020 and 18 January 2020. The conversations are very sexually explicit and the two of them discuss on each occasion engaging in further sexual activity, including the type of sexual activity.

  2. Under a heading “The Second Incident” sequence 15 (which is in a Form 1 attaching to sequence 13) is dealt with. The offender arranged to pick up the victim from her house and they drove to a car park at a park in the same suburb. After parking the vehicle both got into the back seat of the vehicle and began to kiss on the lips again. Specifically relating to sequence 15 (which is a charge of intentionally do sexual act with a child between 10 and 16 years) the offender kissed the victim’s cleavage and bit her in that area giving her what is described as a “Hickey”. The facts recite they had sex but the victim could not recall any particulars or the type of sex that they had.

  3. The Statement of Agreed Facts then goes on to the “Third Incident”. The third incident occurred some few months after the first incident. Again, the offender collected the victim from her home drove to the same park in the suburb where the victim lived. The facts first of all go to sequence 19, which is a matter on to a Form 1 which attaches to sequence 20. The facts blandly recite at paragraph 32, “they then had penile vaginal intercourse for some minutes”. The facts then go to sequence 20, which is one of the three substantive matters involving the complainant IG. After the intercourse to which sequence 19 relates the offender placed his penis in the victim’s anus. The victim indicated there was some pain but the offender said, “please, please”. The offender kept trying to insert his penis inside her anus for a few minutes longer and some of his penis entered. This caused the victim pain and the offender then stopped. A further act of penile vaginal intercourse then occurred for about five minutes after which the offender removed his penis and ejaculated onto the victim’s stomach.

  4. Sequence 20, i.e. the second substantive matter, relates to the anal intercourse. Noting that the intercourse was anal intercourse and it caused the victim pain and noting the other factors such as the age difference, the matter is marginally below mid-range.

  5. There were further Snapchat conversations between the offender and the victim on the 6th, 8th and 9th of April 2020. Those exchanges were also very sexually explicit.

  6. The facts then go to the fourth incident. On a day between 16 and 31 October 2020 the offender met the victim and they drove to a location near a supermarket in the suburb where the victim lived. After they parked they began to “make out”, the offender got on top of the victim and placed his hand around her neck. They were kissing the offender removed his pants and pulled the victim’s head towards his penis and she began to lick his penis. This conduct relates to sequence 53, which is on the Form 1 attaching to sequence 26 and is a charge of inciting a child to do sexual act.

  7. As part of the same incident the offender told the victim to take her pants off which she did. While laying down he inserted his penis into her vagina. The intercourse continued for about 15 minutes and the offender ejaculated on the victim’s stomach. The offender drove the victim home. After this occasion the victim and the offender did not meet again but they continued to communicate on Snapchat. The last time they communicated was on 8 December 2020.

  8. It appears that this is the conduct to which sequence 26, the third substantive matter contrary to s 66C(1) of the Crimes Act. I note the age difference, the general circumstances of the offending, the intercourse was penile/vagina with ejaculation. The matter is at the lower end of the mid-range.

  9. The victim told two of her friends that she had had sex with a guy and she told them his age. On 2 December 2020 police received a report in relation to the matter. Contact was made with the victim’s mother and arrangements were made for the victim to be interviewed. She identified the offender by way of electronic photo board.

  10. Cellbrite analysis was carried out on the victim’s phone. The Snapchat conversations were recovered but police also recovered 41 videos of the victim performing sexual acts with herself and on the offender. These videos were largely shared by the victim to the offender. The offender also shared a video of himself masturbating to the video of the victim performing oral sex on him. These 41 videos relate to sequence 49 which is also on the Form 1 which attaches to sequence 26.

  11. On 22 December 2020 the offender attended the Campbelltown police station, was arrested and cautioned. He participated in an electronically recorded record of interview. The offender made a number of admissions including that he had been seeing the victim for almost a year, he met and spoke with the victim, that they were boyfriend and girlfriend, that he had had sex with her and that the first time they had penile vaginal sex was in the back of his car at a park in the suburb where the victim lived. Also, in the interview he maintained that he asked for her consent with everything that he had not done anything to injure or harm the victim and that he “didn’t even go that far with her”. He also admitted to having oral sex and that that occurred two or three times. He initially told police she told him that she was 14 but when shown the Snapchat conversations acknowledged that she had told him that she was younger than 14. He also told police, “I should not do this at all” but that he had asked for consent. He thought the age of consent was 18 years of age.

Relating to KL

  1. The offending in respect of KL occurred before the offending relating to IG. KL was 20 years of age at the time and the offender was 21 years of age. Between 24 October 2019 and 15 January 2020 the victim and defendant met in person four to five times. They communicated by Instagram. The victim sent photographs of herself to the offender and the offender sent photographs that he purported to be of himself but which were not. They engaged in flirtatious and sexual conversations leading to making arrangements to meet which did not eventuate for some time.

  2. On 31 October 2019 the offender offered to give the victim a new iPhone on the proviso that they would meet the following day. They arrange to meet at Bankstown the following morning. There was then a sexualised exchange which appears at paragraph 50 of the agreed facts.

  3. Despite the agreed facts having a number of headings, paragraphs 52 and 53 (which follow the heading relating to sequence 29, that is the charge of Intentionally Record Intimate Image Without Consent contrary to section 91P(1) of the Crimes Act) no such offence is disclosed in the narrative. At the sentence hearing it was indicated that one has to go to paragraphs 56 and 63 of the facts. The difficulty with that, however, is that paragraph 63 relates to conduct that occurred on 29 November 2019. Sequence 56, that is the charge of Intimidation relates to conduct set out at paragraphs 54, 55 and 56 which is alleged to have occurred on 9 and 11 November 2019. The charge of Intimidation relates to threats by the offender to distribute videos taken of sexual activity between the offender and the victim KL. Clearly the offender was in possession of those videos as at 9 and 11 November 2019.

  4. Therefore, it must be the case that the offender was in possession of videos of sexual activity between the two of them that occurred between 1 and 4 November 2019. The facts recite the two of them had sexual intercourse including anal intercourse between those dates. To further complicate matters it became apparent at the sentence hearing that the Crown also relied upon conduct on days other than 9 and 11 November 2019 so far as the intimidation charge is concerned. The facts set out a series of exchanges that occurred on various dates between 9 November 2019 and 29 November 2019 where either actual or implied threats made by the offender to release or make public videos in his possession of the two of them engaging in various sexual activity. In these exchanges the offender using a quite aggressive and threatening tone makes clear that he will release the videos unless the victim does what he asks, in particular meeting him again and engaging in further sexual activity. It is not clear from the facts as to what is actually depicted on the videos that he threatens to distribute.

  5. In all the circumstances it seems appropriate that I proceed on the basis that sequence 29 that is the charge of intentionally record intimate image without consent relates to conduct that occurred before 9 November 2019.

  6. Doing the best I can with the limited information available, I am of the opinion that this matter is a less serious example of an offence contrary to s 91P(1) and is certainly below mid-range.

  7. The remaining matter so far as KL is concerned is sequence 55 which is a charge of Procuring a person for prostitution. After the exchange between the offender and victim on 11 November 2019, which is one of the exchanges where the offender threatens to release the videos, there was a discussion between the offender and the victim in which the offender asked the victim to engage in anal intercourse. The victim agreed to this and to engaging in other sexual activity with the offender. They then began to negotiate a price the offender would pay the victim to, “lick his ass” (meaning anus). An agreement was reached that the offender would pay the victim $250 for, “licking my ass and fingering me”. Further exchanges occurred between the two of them on various dates in November 2019.

  8. This offence is limited to one occasion relating to one specific act. I note the facts recite that there were negotiations between the offender and the victim. The matter is very much towards the lower end of the scale of seriousness.

  9. Sexual activity occurred between the offender and KL on 29 November 2019 whilst that activity was in progress the offender picked up the victim’s phone and recorded their sexual acts. The following day the offender asked the victim to send him the video that he’s taken. On 1 December the offender asked the victim for her bank account details and she provided them to him assuming he would transfer the money that he had promised. The defendant never transferred any money to her nor did he provide her with the phone that he said he would.

  10. On 5 December 2019 the offender and victim began chatting on Snapchat again. He asked her to send him the videos on her phone that she told him that they had been deleted. A number of attempts were made for the two of them to meet in order that the offender could pay the victim what she was owed. On 2 January 2020 they met in south-western Sydney and had sexual intercourse. On 13 January 2020 the offender made further threats to release the videos particularly to the victim’s sister. The victim then blocked the offender on social media platforms and blocked his phone number.

  11. The charge of Intimidation is more serious, noting the aggressive and threatening tone and that it was an ongoing course of conduct. It is a serious example of intimidation particularly noting the nature of the threats. The matter is within the mid-range.

Relating to ES

  1. The one charge relating to the victim ES is a charge of Intentionally Distribute Intimate Image without Consent contrary to s 91Q(1) of the Crimes Act. The victim was 16 years of age during the offending. However the facts recite that from when she was about 14 years of age she began to send people photographs and videos of herself naked on social media platforms in exchange for money. This occurred predominantly through Snapchat. She also posted videos of herself in school uniform and at school on her Snapchat story which would have indicated that she was school-age. Payment was received into a bank account and the payment varied between $50-$250.

  2. Between October and November 2019 the offender acquired four intimate images and 37 intimate videos from the victim. Between 3 October 2019 and 7 January 2020 the offender sent a number of the images of the victim to an international service, the number of which is set out at paragraph 73 of the facts and is a number in Afghanistan.

  3. I note that initially the agreed facts as they read literally did not disclose an offence. The word “intimate” was inserted between the numeral 4 and the word images and again between the numeral 37 and the word videos at the sentence hearing. Also tendered and marked exhibit A1 is an extract from the statement of a police officer setting out a brief description of what is shown or depicted in each of the images and videos. The videos generally show the victim naked in a bathroom or bedroom in various sexual poses. Noting the number of images and videos and the international distribution together with the nature of what the videos and images depict the matter is within mid-range.

Relating to MW

  1. The three offences relating to the victim MW appear from the facts to arise out of the one ongoing episode (seq 35, 37 and 38). The victim was 13 years of age and the offender was 22 years of age at the time of the offending. The victim had numerous public Snapchat accounts where she posted what is described as “nudes”. The victim had a friend named Fatima on Snapchat but they had never met.

  2. On or about 8 August 2020 Fatima spoke to the victim on Snapchat and asked the victim to meet with her and her boyfriend for group sex. Fatima told the victim that her boyfriend was going to pick her up and then come over to pick up the victim. The victim agreed and gave Fatima her address. A little later the offender arrived but Fatima was not with him. The victim messaged Fatima and she replied that she was unable to come. The victim and the offender drove around the area during which time the victim told the offender that she was 13 years of age. The offender responded, “Well, you’re sexy for a 13-year-old”. The victim requested the offender pay her with drugs in exchange for sex because, “I don’t fuck for free, of course not”. The offender said that he did not have drugs. He told the victim that she was a young girl and he was not going to let her do that stuff.

  3. They eventually parked on the side of the road and both got into the back seat where the offender removed his pants. The victim fellated the offender for about ten minutes after which the offender ejaculated in the victim’s mouth. The offender slapped the victim’s buttocks while she was fellating him. This is the conduct to which the charge of Sexual Intercourse with a Child aged between 10 and 14 years relates – sequence 35.

  4. The intercourse was fellatio with ejaculation in the victim’s mouth. The general circumstances are unusual given the request for payment with drugs. Again, there is the issue of age of the victim, of which the offender was aware, compared to the age of the offender. The victim is again towards the upper end of a limited age-range. The matter in all of the circumstances is within mid-range.

  5. After this the offender asked the victim to lick his anus. She initially refused, however, at the offender’s insistence she licked his anus once. This is the conduct to which the charge of Incite Child between 10-14 years to Sexually Touch relates - sequence 37. Noting the touching, the age difference and the general circumstances this matter is well within the mid-range.

  6. The third charge relating to the victim MW is Produce Child Abuse Material. During the sexual encounter the offender filmed the victim participating in the sexual acts – sequence 38. The facts recite that on the offender’s phone were three category 1 videos and four category 1 images of the victim participating in sexual acts. These were images and videos that the offender recorded on his phone. No further detail is given. Noting the number of videos and images but also noting that no detail of content is given the matter is towards the lower end of the scale of seriousness.

Relating to LI

  1. The facts recite that this complainant was between 13 and 14 years of age but the Crown cannot prove beyond reasonable doubt that she was under 14 years of age when the sexual intercourse occurred. The facts then go on to recite that between 23 August and 22 November 2020 the offender and the victim met approximately three times and engaged in sexual intercourse on each occasion. However, there are two substantive charges of sexual intercourse with a person between 14 and 16 years of age and three like offences attaching to various Form 1 documents.

  2. It appears from the facts that the offender picked up the victim from her home sometime in the late morning of the particular day which is not specified. They went to a park in the suburb in which the victim was living. The offender told the victim that he was into younger girls and that younger girls turned him on.

  3. The offender and victim went to the back seat of the vehicle where the offender pulled down his pants and exposed his penis. The victim fellated the offender. It appears that this matter is sequence 66 and is on a Form 1 document attaching to sequence 64. Immediately following the fellatio the offender had penile / vaginal intercourse with the victim after which the offender dropped the victim home. This matter appears to be sequence 64 and is one of the substantive matters for which the offender appears for sentence. The age-range for this offence is one of 2 years and therefore limited. There is the age difference between the victim and the offender. The intercourse was penile/ vaginal. I could not be satisfied beyond reasonable doubt that there was ejaculation. The matter is below mid-range but not significantly so.

  4. Later that same day the offender picked up the victim from her home and went to an underground car park where he parked his vehicle and the victim again fellated the offender. This appears to be sequence 67 which is on a Form 1 document attaching to sequence 65.

  5. The offender then had penile / vaginal intercourse with the victim. The facts recite that the offender had a condom and that he ejaculated but not inside the victim’s vagina. This appears to be sequence 65 which is one of the substantive matters for which the offender appears for sentence. I make the same assessment of the seriousness of this matter as I did for sequence 64.

  6. Sometime later that year the victim met the offender at a railway station. On this occasion the victim fellated the offender for which the offender paid $50. There was an argument between the two of them and they did not meet again. The act of fellatio appears to be sequence 68 which also is on a Form 1 document attaching to sequence 65.

  7. Paragraph 91 of the facts recites that during their sexual encounters the offender took videos of the sexual acts that occurred in the back seat of his vehicle and that he sent those recordings to the victim. There were two category 1 videos of the victim performing oral sex on the offender located on the offender’s phone. Sequence 46 is one of the substantive matters for which the offender appears for sentence and is a charge of Produce Child Abuse Material contrary to s 91H(2) of the Crimes Act. A charge of Disseminate Child Abuse Material contrary to s 91H(2) of the Crimes Act is on a Form 1 document that attaches to sequence 46. There is a small number of videos and images. The content was category 1. The matter is towards the lower end of the scale of seriousness.

  8. Paragraph 90 of the facts recites that throughout the course of their communications the victim and the offender continually made arrangements to meet to have sex. Extracts from a number of messages are then set out. Those messages include the victim requesting money for sex, they are highly sexualised and use sexually explicit language.

Relating to TL

  1. The victim TL was 25 or 26 years of age at the time of the offending. The offender used his Instagram account to follow the victim. The two of them also started to chat on Snapchat. While they were chatting the victim sent the offender images and videos of her naked breasts. At the same time the offender would send the victim videos and images of himself having sex with other women.

  2. Some few weeks after they met they agreed to meet at the victim’s home where they spent some time together and had sexual intercourse. Later that day a cousin of the victim came to her house in order that they could go and get McDonald’s. The victim told the offender he needed to leave but the offender refused to leave. However eventually the offender did leave and they never met again. On 19 October 2019 the offender contacted the victim. They had a conversation where the offender threatened to release the images and videos that the victim had previously sent him. The exchange is set out in a table at paragraph 95 of the facts. Essentially the offender threatens to release the videos unless the victim sees him again. During that exchange the offender in essence told the victim that she would not report him because of shame. The victim however replied that she would report the matter. The matter is below mid-range but not significantly so.

  3. On 5 and 6 November 2019 the offender contacted the victim again but the victim continued to refuse to meet, be with or reconcile with the offender in any way.

  4. The offender was arrested in respect of the allegations relating to TL on 26 May 2021 and declined to comment, which was his right.

Criminal history

  1. The offender was born on 23 September 1997 and accordingly he was 22 or 23 years of age at the time of the offending and 25 at the time of sentence. According to the criminal history provided by the Crown in the Crown tender bundle, exhibit A on sentence, there is a traffic matter which was dealt with by conditional release without conviction. Ordinarily, the offender would be dealt with as a person of prior good character and the lack of record would be of very significant assistance to him.

  2. However, in this matter there are six different victims, a number of whom are children and the offending occurred over about 11 months. In this regard I note the decision of the Court of Criminal Appeal in R v PGM (2008) 187 A Crim R 152 where Fullerton J (Spigelman CJ, Barr J agreeing said at [43]-[44]:

“[43] In Lozanovski v R [2006] NSWCCA 143, this Court confirmed the approach that should be taken by a sentencing court when previous good character is relied upon as a matter in mitigation. The departure point was identified by the High Court in Ryan v R [2001] HCA 21; 206 CLR 267. Justice McHugh said at [275]:

‘It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character.

.... Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances.’ (emphasis added)

[44] In this case, while his Honour was entitled to take the respondent's previous good character into account, to afford it "very significant weight", in my view, failed to recognise the pattern of repeat offending over a period of seven months in the course of an ongoing relationship between the respondent and the child - a relationship which was deliberately fostered by him for his own sexual gratification. Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might otherwise be available where the offending was spontaneous and only involves an isolated incident). The fact that the respondent used child pornographic images in the course of perpetrating one of the offences of indecent assault signifies, in my view, that the offences for which he was convicted were neither opportunistic nor in any meaningful contrast to his outward or public good character.”

  1. However, the facts in the matter presently under consideration are different to those the court were considering in R v PGM, particularly when the subjective matters in particular the report of Professor Woods are considered. In all of the circumstances I am of the opinion that the prior good character of the offender should be given meaningful consideration but does not achieve the significance that it might in other circumstances.

General Deterrence

  1. It is appropriate that I address the issue of general deterrence. A considerable number of the matters for which the offender appears for sentence involve allegations of child sexual assault. Three of the victims are children. The strong need for general deterrence when dealing with offences of child sexual assault is undoubted. It goes back to at least the Crown appeal in the matter of R v Muldoon unrep NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said:

“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.’"

  1. Other cases include Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.

  2. Given the increased use of social media there is also an issue of general deterrence to be addressed with the other matters, particularly the charge of Intimidation and the charges of Threaten of Distribute Intimate Images Without Consent. Further, the issue with the publication of the images is that once out there on social media the person depicted can never retrieve them.

  3. However, in this case the need for general deterrence is to be tempered given the issues to which I have already referred in particular the mental conditions suffered by the offender taken with his level of intellectual functioning.

Offender gives evidence

  1. Mr Thomas, counsel for the offender, read an affidavit sworn or affirmed by the offender on 25 May 2022. This was supplemented by oral evidence from the offender. In his affidavit the offender expresses remorse and accepts that he has caused trauma and damage to the victims of his offending. He expresses a willingness to undertake courses while in custody. He has been working as a sweeper and working in the laundry. This is the offender’s first time in custody and he has self-harmed while in custody. The offender has been COVID-19 positive and has been in isolation for that reason twice. He’s had limited contact with his family since being in custody. He has witnessed violence in the prison and has been the victim of bashings while in custody. I will address the issue of the COVID-19 pandemic later in these reasons under the heading of General Remarks. The offender expresses in his affidavit that he will never reoffend.

  2. In his oral evidence the offender maintained that the answers he gave to Professor Woods for the purpose of preparing the report were true and correct. He has undertaken some courses in custody including a Positive Lifestyles course. He has completed a number of sessions of the course. I understood his evidence to be that he has two sessions to complete in order to complete that course. The offender confirmed he works in the laundry and that he is locked up in his cell after 3:30 PM. He also confirmed that he has been assaulted more than once whilst in custody and is fearful for his safety. When asked by his counsel what he would say to the victims of these offences, he replied with words to the effect of (noting I do not have the transcript) that he was extremely sorry for the damage he caused and for the trauma he caused and that he hoped one day they would be able to forgive him. He said he was really sorry.

  3. I understood the position of the Crown to be, so far as remorse is concerned, that I would not find that the offender was remorseful but if I did find remorse established on balance I would give that expression of remorse limited weight. In cross examination the Crown referred to a number of things the offender apparently said to the author of the Sentencing Assessment Report which is at Tab 9 of the Crown tender bundle, exhibit A on sentence. At page 2 that report sets out the offender struggled to take ownership for his offending behaviour and attributed his actions to the influence of his childhood trauma. This is a reference to the offender’s upbringing in the war-torn Middle East, which I will deal with later in these reasons. Curiously at some points in the material it is put that the offender came from Iran and in other places that he came from Iraq. It is of no real consequences in the circumstances from which of those countries he came.

  4. The Sentence Assessment Report also sets out (page 2) that the offender described himself as remorseful and disappointed in himself but that his insight appeared to be superficial and he struggled to reflect on his decision-making. At page 3 of the report it appears that when discussing the impact of his offending the offender struggled to see the impact of his offence outside the inconvenience of his incarceration has on his own circumstances. The report sets out (p 3) that the offender recognised the girls and women he offended against are victims, but he was unable to identify the impact that his offence had on them. The offender suggested the victims would have trauma, but he was unable to elaborate on the cause of the trauma. In the circumstances and noting the evidence of Professor Woods I accept this had more to do with the offender’s inability to express himself.

  5. Later in these reasons I will deal with the report of and the evidence of Professor Woods. However, it needs to be observed that the report is extremely comprehensive and thorough. It was plain enough to me having heard the evidence of the professor that the offender has a relatively low IQ and would have had difficulty, perhaps even significant difficulty, in expressing himself and clearly enunciating what he was trying to get across. Proper regard must be had to this when assessing the offender’s evidence and what he said to the author of the Sentencing Assessment Report.

  6. Under cross-examination the offender conceded that he knew what he was doing was wrong, he conceded that the recording of the videos was wrong in that he did not get permission from the victims. He accepted that in respect of one of the victims he had made 41 separate videos. The offender said that he made videos so he could watch them later.

  7. It was put to the offender in cross examination that he was “victim blaming”. My note and memory is to the effect that the offender was also taken to an aspect of the Sentence Assessment Report at this point in the cross-examination. However, I understood the offender to maintain that he was not blaming the victims. Noting the point I made earlier about the offender having difficulty in expressing himself, I am not prepared to find the offender was “victim blaming”.

  8. The Crown Prosecutor when cross-examining the offender took him to a number of the specific offences. Whilst it appeared to me when watching and listening to the offender he was having some difficulty in expressing himself I did not gain the impression that he was trying to minimise his criminality.

  9. Towards the end of the cross-examination it was put to the offender that his expressions of remorse were false. The offender replied to the effect of (noting again I do not have a transcript of the evidence) that he was extremely sorry about the terrible things he did and the poor decisions he made. He also said he hopes that the victims can heal from the harm he caused them.

  10. In the course of his evidence, while under cross-examination, the offender used the expression that he was “lost in his mind” a number of times. Taking into account the evidence of Professor Woods and having the opportunity to watch and listen to the offender I am firmly of the opinion that that expression is but one example of the difficulty the offender had in expressing himself.

  11. In all of the circumstances, with some little hesitation I am prepared to find on balance the offender is remorseful. I gained the clear impression that the offender was truly sorry for what he had done and that he had accepted responsibility for his actions. The offender’s remorse should be given very meaningful weight in determining the appropriate sentence in this matter.

  12. The hesitation to which I refer in the paragraph immediately above comes about from what appears at p 28 of the report of Professor Woods. The Professor says, “Mr Naderi reports to accepting responsibility for his behaviour. Having regard however for his lack of insight in respect to victim impact, I believe it will be critically important to address this in therapy.”

Bugmy v The Queen [2013] HCA 37

  1. As part of the subjective case the offender relies upon what have become known as “Bugmy factors”, a reference to the principles enunciated by the High Court of Australia in the decision of Bugmy v The Queen. The Crown Prosecutor made submissions in his written submissions as to how various decisions of the Court of Criminal Appeal have “refined” the decision.

  2. I understood the Crown to submit that although the offender was entitled to have the “Bugmy factors” taken into account as part of the instinctive synthesis in determining the appropriate sentence unless there was a causal connection between those factors and the offending the offender was not entitled to a finding that his moral culpability was reduced.

  3. The evidence that that goes to establish the existence of the factors is the report of Professor Woods. The offender was raised to age 9 or 10 in Iran (or Iraq) where he observed a great deal of civil unrest as well as persons being killed including by way of beheading or being injured in terrorist bomb blasts and shootings. It is accepted that the offender’s father is mentally ill and indeed on one occasion was scheduled pursuant to section 19 of the Mental Health Act, 2007. The offender’s father was described not only by the offender but other family members as being mentally unstable and a man who regularly physically assaulted the children and his wife. The offender recalled that his father frequently punched him about the head and that he was rendered unconscious or semi-unconscious on numerous occasions. He recalled being woken in the night by his mother’s screams in response to being raped by his father. In 2014 the offender’s father returned to the Middle East together with the offender and one of his (offender’s) siblings. Within a few days of their arrival the offender’s father became violent and threatened to kill them. The offender was bullied at school in Australia.

  4. The brother of the offender was interviewed by Professor Woods for the purpose of the preparation of his report. The offender’s brother confirmed the family history reported by the offender. The offender’s brother also told Professor Woods that their mother has a history of depression and suffers from chronically poor mental health and has attempted suicide on two occasions. She continues to be treated by a psychologist. Their sister also has a history of depression.

  5. It is clear that in preparing the report Professor Woods interviewed a number of people and consulted a number of medical records relating to the offender and members of the offender’s family. One can only imagine what it must have been like for the offender growing up in the circumstances in which he did. The level of intellectual functioning, which I will deal with later when dealing with the report of Professor Woods, would simply add to the deprivations suffered by the offender. I did not understand the Crown in this case to submit that the “Bugmy factors” were not present but rather the court would make limited use of those factors in determining the appropriate sentence.

  6. The plurality in Bugmy v The Queen (French CJ, Hayne, Crennan, Keifel (as her Honour then was), Bell & Keane JJ) said at [43]-[45]:

“[43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender's mental condition in sentencing:

‘A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.’”

  1. As I understood the Crown’s submission on this aspect it was put that although the “Bugmy factors” could be taken into account in the “instinctive synthesis” approach in determining the appropriate sentence those factors would not in this case reduce the offender’s moral culpability.

  1. One of the decisions relied upon by the Crown is Katsis v R [2018] NSWCCA 9. Hoeben CJ at CL said at [105]:

“When one compares that upbringing with the circumstances surrounding the upbringing of the offenders in Bugmy v R, Munda v Western Australia [2013] HCA 38; 249 CLR 600 and even the less extreme circumstances which surrounded the offender in Ingrey v R, the applicant has failed to establish a background and upbringing which could be properly characterised as amounting to deprivation. Specifically, there was no sexual abuse at home and there was no real link established between his use of marijuana, LSD and alcohol on weekends and his upbringing.”

  1. Accordingly, it seems that the Court of Criminal Appeal in Katsis took the view that the background and upbringing did not involve the deprivations that would lead to the enlivening of what has become known in shorthand form as the ”Bugmy factors”.

  2. At page 8 of the Crown’s written submissions the Crown then refers to the decision of Perkins v R [2018] NSWCCA 62 at [42]. Paragraph [42] of that decision is as follows:

“It follows, therefore, that while I accept the applicant’s submission that his Honour’s summary of the applicant’s childhood was not complete, even if his Honour had set out in detail the history recorded by Dr Gilligan, it was not a matter which he could properly take into account by way of mitigation. On my reading of Bugmy v R it is not sufficient to simply establish some elements of a deprived upbringing and/or the presence of domestic violence unless there is evidence or it can be properly inferred that such exposure ‘may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.’ (Bugmy at [44]).”

  1. The Crown also refers (page 8 of the written submissions) to the decision in the Crown appeal of R v Irwin [2019] NSWCCA 133. Simpson AJA in some brief additional comments at [2]-[3] said:

“The ‘Bugmy principles’ are derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and are concerned with the impact on sentencing of a history of disadvantage and deprivation. The plurality in the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) accepted that such a history is relevant to the assessment of the moral culpability of an offender. The specific question in Bugmy was whether the effects of early social disadvantage and deprivation diminish over time such as to reduce the extent to which it may be taken into account on sentence.

Application of the Bugmy principles is not discretionary. Their Honours said:

‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision’.”

  1. The Crown then goes to paragraph [116] in the judgement of Walton J in the decision of Irwin. The following appears at [116]-[117] of the decision:

“First, the sentencing judge accepted as a factual conclusion that the respondent had established a background of deprivation. The social deprivation and abuse suffered by the respondent was recognised by Mr Borkowski and Dr Furst and contributed to their diagnoses of the psychological conditions suffered by the respondent. It was unnecessary in those circumstances to require, as a necessary condition to permit mitigation of sentence, a causal link between that background and the offending. I accept, with respect, the observations of White JA in Perkins as to the significance of a background of social deprivation to sentencing. The relevant aspects of the judgment ([77], [80]-[83]) are extracted below:

‘[77] In Bugmy the High Court neither endorsed Mr Bugmy’s submission (at 581) that no causal connection between the offender’s aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that “The weight to be afforded to the effects of social deprivation in an offender’s youth and background is in each case a matter for individual assessment.”

…

[80] Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender’s moral culpability. In some cases that causal link may be inferred (R v Millwood [2012] NSWCCA 2 at [69]).

[81] On the other hand if a causal link between the offending and the background of deprivation is established, as the High Court pointed out in Bugmy and as Gleeson CJ said in Engert, that may give additional weight to a conflicting purpose of punishment such as the need for protection of the community.

[82] I agree with Hoeben CJ at CL that the applicant’s exposure to the domestic violence committed on his mother and possibly on him [1] has been shown not to have been causally connected to his offending…

[83] It does not follow that the applicant’s exposure to the domestic violence suffered at least by his mother is irrelevant. But it does not lessen his moral culpability.’

[117] Fullerton J was in the minority in that judgment but agreed with White JA as to the subjective circumstances of the applicant which may be taken into account in sentencing. Her Honour stated at [99] and [100]:

‘[99] First, the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented . . . The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321).

[100] In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level of social deprivation with the potential to sound in mitigation of sentence. As White JA noted at [77], the plurality in Bugmy did not say that deprivation will only be a mitigating factor lessening the moral culpability of the offender if it is causally linked to the offending but, rather, to adopt the approach of Gageler J at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment.’”

  1. In his supplementary submissions the learned Crown Prosecutor extracts para [34] of the judgment of the plurality in Bugmy v The Queen but goes on to submit that “NSW precedent has developed this point”. He then goes on to refer to Dungay v R [2020] NSWCCA 209 at [145] and extract from Nasrallah v R [2021] NSWCCA 207.

  2. The authorities to which the Crown refers must be seen in the context of their own facts and circumstances. The offending with which the court is dealing in the matter presently under consideration is very different to the type of what was described as being deliberately planned and potentially profitable. The offending in respect of which the court is passing sentence in the matter presently under consideration seems to me to bespeak an offender who has a distorted and/or inadequate and/or inappropriate view of what is and is not morally acceptable. There was certainly some degree of planning with a good deal of the offending on which the offender is being sentenced. The planning was not the same planning as was in the cases referred to by the Crown.

  3. With respect I do not read anything in those cases to which the Crown refers that is authority for the proposition that there must be a causal connection between the Bugmy factors and the offending for the moral culpability of the offender to be reduced. Even if there was, given the doctrine of precedent the decision of the High Court would prevail.

  4. When a court in sentencing an offender takes into account what has become known as the “Bugmy factors” the court is not simply extending sympathy to the offender because of deprivation that was endured in their formative years. As the High Court explained at [43] of the decision in Bugmy v The Queen:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.”

  1. As I understand the principles, consideration is extended to an offender by reducing the moral culpability of an offender to whom the principles apply because the criminal law accepts that because of the deprivations and other experiences suffered or witnessed in formative years a person has a distorted or unrealistic and/or an incomplete or limited or very little if any, real understanding of what is morally wrong or unacceptable. Once it is established on the evidence that the “Bugmy factors” are enlivened it becomes a question of what weight attaches to those factors in reducing the moral culpability of the offender.

  2. In this regard, in the matter presently under consideration it is perhaps helpful or instructive to go to the evidence of the psychologist Professor Woods. It was the opinion of the professor that the offender developed a serious personality disorder because of the distorted view of the world that he had as to what is and is not acceptable. It was further the opinion of the professor that the offender was influenced by what he saw in his formative years. The professor went on to say it was not only the issue of trauma to which the offender was exposed in his formative years but also the mental illnesses in the family. Those matters went to shape the perception of the world, the people in the world, what is acceptable and what is not.

  3. It is my view that a proper reading of the decision of the High Court in Bugmy v The Queen is that for a sentencing court to take into account the history of deprivation it is not necessary for there to be established a causal link or connection between the offending and that history of deprivation. However, if I am incorrect in this given the authorities from which I have extracted and the evidence of Professor Woods I would nevertheless conclude that there is a causal connection in the matter presently under consideration between what the offender experienced in his formative years in the Middle East and the offending.

  4. Given the history of the experiences of the offender in his formative years in the Middle East, taken with the physical abuse he endured at the hands of his father and the mental illnesses suffered by both parents there can be no doubt that in this case what have become known as the “Bugmy factors” are present to a significant extent. Accordingly, I propose to give “full weight” to that history of deprivation and further I proceed on the basis that history of deprivation serves to reduce the moral culpability of the offender to a significant extent.

Report and evidence of Professor Woods

  1. It should be observed that the report of Professor Woods is extremely comprehensive. The professor gave evidence to the effect that he interviewed the offender for at least four hours by way of audio-visual link in the preparation of the report. I note that that period is longer than most interviews for the purpose of preparation of reports for use in sentencing proceedings. The professor conceded there were some limitations with AVL, but he went on to say an experienced clinician such as himself is able to work around those issues. Even a brief examination of the Professor’s Curriculum Vitae indicates that he is an extremely experienced practitioner.

  2. I have already summarised that part of the report at pages 7 and continuing that lead to the enlivening of what has become known as the “Bugmy factors”. At the last bullet point on page 10 of the report the professor refers to the offender’s low level of intelligence. In answer to question by me at the sentence hearing the professor estimated the total IQ of the offender to be “about 80”.

  3. The offender is now aged 24 and is the youngest of five children. He has never been married, nor has he had a stable long-term relationship or resided independently. He has never held any form of full-time employment although he has engaged in casual work .

  4. Professor Woods at p 15 of his report went on to say that there was no evidence of sensory, perceptual or major cognitive impairment was detected. The estimated level of intelligence was determined to be in the “lower half” of normal range. Having read numerous psychological reports and having heard evidence from a significant number of psychologists over the years, it is my understanding that an IQ of 80 is very much towards the low-end if not at the low-end of “normal”. The professor opined that the offender’s level of emotional maturity and executive functioning both determine the notably lower level than that of what might reasonably be expected of a person of the offender’s chronological age and estimated intelligence.

  5. At p 17 of the report the professor under the heading “provisional diagnosis” sets out the responses that suggest the offender suffers from a major depressive mood disorder with psychotic features. The preliminary view was that those psychotic features are better explained in terms of the level of personality disturbance.

  6. Professor Woods spent some time in dealing with the likelihood of reoffending. At p 18 the professor says, “having regard however for the period of time over which (the offender) continued to offend and the escalating nature of his offending, I believe his ‘actual level of future risk should be viewed in terms of being high’ and particularly in the absence of early intensive treatment. A little later in the report (p 19) Professor Woods says that the level of future risk should be viewed as being well above average in the event the offender does not commence an appropriate treatment at the earliest possible time. Somewhat later in the report (page 26) Professor Woods notes that an escalation in the nature of sexual offending is generally held to be of particular relevance when considering future risk.

  7. Given these opinions I am quite unable to find that the offender is unlikely to reoffend. This is contrary to the submission of counsel for the offender (pp 4- 5 written submissions). With respect to counsel for the offender it is difficult, if not well-nigh impossible. to perceive how a finding that the offender is unlikely to reoffend could possibly be made given the content of the report of Professor Woods, and in particular the matters to which I have referred in the paragraphs above.

  8. Professor Woods notes (p 21) that because of essentially issues of resourcing, persons convicted and imprisoned in respect of sexual offences do not receive treatment until they are nearing the end of their sentence. Professor Woods goes on to recommend that efforts be made to ensure that the offender commences an integrated multidisciplinary treatment regime as soon as possible following sentence. This is one of the reasons that makes it appropriate for me to direct that a copy of the report of Professor Woods be forwarded to the Department of Corrective Services with the warrant.

  9. At page 22 and continuing of the report Professor Woods deals in some detail with a number of issues that he identifies as areas of future needs and treatment needs. The issues relate to pornography and social media, the possible need for libido reducing medication and the offender engaging in purposeful activity. The report also addresses the issue of the offender’s poor insight into his offending and in particular the offender did not demonstrate any level of appreciation of the fact that the nature of his offending will greatly restrict any future vocational options. Later, at pp 29-31, Professor Woods addresses and comments on various treatment needs. This is a further reason why the Department of Corrective Services should have a copy of the professor’s report.

  10. It is obvious the offender will need intensive and extensive supervision after his release from custody to address these issues. This issue taken with the offender’s age and that this is his first time in custody justifies in my opinion a generous finding of special circumstances. In this regard the Crown’s submission (p 9 written submissions) “The only special circumstance the Crown accepts as being open if at all, is because of the fact of accumulation”. In any event, while totality is a very live issue so far as the ultimate sentence is concerned as clearly there should be an aggregate sentence in this matter the issue of accumulation per se does not arise. It follows I reject the Crown’s submission as to “accumulation” being the only justification for a finding of special circumstances.

  11. Ultimately Professor Woods diagnoses (page 33) “other specified paraphilic disorder and other specified personality disorder with mixed features but predominantly antisocial, severe and potentially (?) with psychotic features”. At pp 35-36 the professor opines that the offender is a very mentally unwell young man who presents with a disturbing, in many ways highly traumatic, psychosocial history, which of itself would have been exacerbated by suspected parental mental illness, and broad-based social disadvantage. It occurs to me that that comment by the author of the report is also relevant to the ”Bugmy factors”.

  12. As Mr Thomas, counsel for the offender, submits in his written submissions that the report of Professor Woods identifies a number of serious mental health disorders that were present at the time the offences were committed. Given the report of Professor Woods I have no issue in concluding that there is a causal connection between the mental health conditions and the offending. As counsel also correctly submits, at the time the offending occurred mental health conditions were undiagnosed and untreated.

  13. Accordingly, the principles enunciated by McClellan CJ at CL in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened. So too is what was said by the plurality in Muldrock v The Queen [2011] HCA 39 at [54]. This is to what I was alluding when earlier in these remarks I found that the issue of general deterrence was tempered in this matter.

  14. The issue of the mental conditions suffered by the offender also serves to reduce his moral culpability. There is nothing really before me on which I could make a finding that the mental conditions suffered by the offender would make custody more onerous for the offender. I note however in this regard counsel for the offender makes other submissions on this issue, which will be addressed later in these remarks. Although I note some of the cautionary comments of Professor Woods I am not able to make any finding that the mental conditions suffered by the offender would make him more of a danger to the community.

  1. On that last point I note the fifth point within [177] of the judgment of McClellan CJ at CL in De la Rosa. I did not understand the Crown to submit that I would find that the offender was a danger to the community. However, for the sake of completeness rather than addressing any submission, given the age of the offender and the very limited record up until this present offending it would be entirely inappropriate to make a finding that the offender presented a danger to the community.

  2. I note that at [54] in Muldrock the plurality said:

“…The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

General Remarks

  1. I will set out a table in which the number of the count, a summary of the conduct to what that count relates, the maximum penalty and the total sentence that would have been imposed had separate sentences been imposed.

  2. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

  1. to ensure that the offender is adequately punished for the offence,

  2. to prevent crime by deterring the offender and other persons from committing similar offences,

  3. to protect the community from the offender,

  4. to promote the rehabilitation of the offender,

  5. to make the offender accountable for his or her actions,

  6. to denounce the conduct of the offender, and

  7. to recognise the harm done to the victim of the crime and the community.

  1. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Clearly in this matter given the multiplicity of the offending, the multiplicity of victims, the type of offending and the maximum penalties clearly there must be a sentence of imprisonment. No contrary submission was made by counsel for the offender. Further, that sentence of imprisonment must be a sentence of full time imprisonment essentially for those same reasons but in any event, clearly the total aggregate sentence will exceed 3 years.

  2. Mr Thomas for the offender submits that the matters contrary to s 66(1) and s 66(3) of the Crimes Act cross the s 5 “threshold” but the other offences do not. With respect to very experienced counsel for the offender I disagree with the exception of sequences 29 and 55 relating to the victim KL. Those two matters in my view do not cross the threshold in s 5 of the Crimes (Sentencing Procedure) Act. The conduct of the offender in the offences relating to threats to disseminate the material is quite insidious. The matter involves a course of conduct over several months involving different victims. However, all matters have their place on the scale of seriousness and I note the maximum penalties applicable to many of those offences are 3 years or 5 years.

  3. As I observed earlier in these remarks, totality is very much a live issue in this matter. If separate sentence were imposed there would need to be some modest partial accumulation of sentences where there is multiple offending in respect of the same victim to recognise the different offending. Further, there would need to be meaningful partial accumulation to recognise the different victims.

  4. Mr Thomas of Counsel submits that the offender was relatively young when he committed the offences. The offender was either 22 or 23 years of age at the time of the offending. He therefore can be regarded as a young offender with factors taken into account in the instinctive synthesis process of determining the appropriate sentence in the matter. In all the circumstances the offender could not in my view be regarded as a youthful offender, i.e. someone in their late teens. I do not understand Mr Thomas to have submitted that the offender was a youthful offender in any event.

  5. It is submitted on behalf of the offender that I would find there are reasonably good prospects of rehabilitation. So far as prospects of long-term rehabilitation are concerned I remain somewhat guarded given the contents of the report of Professor Woods. Much will depend on how the offender responds to treatment while in custody and how he engages with the relevant authorities and agencies upon his eventual release. However, in the circumstances noting in particular the report of Professor Woods I am not prepared to make a finding on balance that there are good prospects of rehabilitation.

  6. Further, it is submitted on behalf of the offender that given the offender has been in protective custody since his arrest on 22 December 2020 custody would be more onerous for the offender. While in my view this is a valid submission it is something which goes to a finding of special circumstances.

  7. The COVID-19 pandemic continues to be an issue. Issues relating to the pandemic had existed so far as the offender is concerned since his arrest and since his initial incarceration. The pandemic has meant that there are a greater number of and longer lockdowns in the prisons; that face-to-face visits are very restricted if not eliminated entirely; inmates being required to isolate upon being moved from one institution to another; and severe limitations on courses that can be undertaken by inmates. All of these matters go to make custody more onerous. I note and have regard to the various authorities of the Court of Criminal Appeal on this issue, for example Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.

  8. I understood it to be accepted by both parties that the commencement date of the sentence in this matter is 22 December 2020. Accordingly, that is the day on which both the head sentence and non-parole period will commence.

  9. As I propose to impose an aggregate sentence in this matter it will be necessary for me to set out the sentences that would have been imposed had separate sentences been imposed. This will be done in tabular form hereunder. These remarks have of course been reduced to writing and a copy will be made available to each of the parties upon pronouncement of sentence. A number of indicative sentences involve some slight mathematical rounding down in favour of the offender.

Matters involving IG

Seq.

Offence

Description

Maximum Penalty

Indicative sentence

13

Sexual Intercourse with Person 10-14 years – s 66C(1) Crimes Act

Penile/vaginal intercourse

16 years with a standard non-parole period (SNPP) of 7 years

Taking into account 5 offences on Form 1 (seq 1, 2, 4, 5, 15)

NPP 2 years month; Balance of Term 1 year 9 months = total sentence 3 years 9 months – starting point 5 years

20

Sexual Intercourse with Person 10-14 years – s 66C(1) Crimes Act

As above

16 years SNPP 7 years

Taking into account 2 offences on Form 1

NPP 1 year 6 months with b.o.t 15 months = total sentence 2 years 9 – s/p 3 years 9 months

26

Sexual Intercourse with Person 10-14 years – s 66C(1) Crimes Act

As above

16 years SNPP 7 years

Taking into account 1 offence on Form 1

As for sequence 20

Matters involving KL

Sequ

Offence

Description

Maximum Penalty

Indicative sentence

29

Intentionally Record Intimate Image Without Consent – s 91P(1) Crimes Act

Recording sexual activity on phone

3 years imprisonment

CCO 2 years

55

Procure Person for Prostitution – s 91A Crimes Act

Offering money to victim to lick his anus

7 years imprisonment

CCO 2 years

56

Intimidation – s 13(1) Crimes (Domestic & Personal Violence) Act, 2007

Threats to distribute recordings of sexual activity

5 years imprisonment

Total sentence 12 months – s/p 16 months

Matter involving ES

Sequ

Offence

Description

Maximum Penalty

Indicative sentence

63

Distribute Intimate Image – s 91Q(1) Crimes Act

Forwarding intimate images and videos to a number in Afghanistan

3 years/100 penalty units16

Total sentence 9 months with s/p 12 months

Matters involving MW   

Sequ

Offence

Description

Maximum Penalty

Indicative sentence

35

Sexual Intercourse with Child 10-14 years – s 66C(1) Crimes Act

Fellatio with ejaculation in victim’s mouth

16 years with a standard non-parole period (SNPP) of 7 years

NPP 1 year 6 months with b.o.t 15 months – total sentence 2 years 9 months with s/p 3 years 9 months

37

Incite Child 10-16 years to Sexually Touch – s 66DB(b) Crimes Act

Inciting victim to lick his anus

10 years imprisonment

Total sentence 2 years – s/p 2 years 9 months

38

Produce Child Abuse Material – s 91H(2) Crimes Act

Filming sexual activity on phone

10 years imprisonment

Total sentence 18 months – s/p 2 years

Matters involving LI   

Sequ

Offence

Description

Maximum Penalty

Indicative sentence

46

Produce Child Abuse Material – s 91H(2) Crimes Act

Filming sexual activity

10 years imprisonment

Taking into account one offence on Form 1

Total sentence 13 months – s/p 18 months

64

Sexual Intercourse with a Child 14-16 years – s 66C(3) Crimes Act

Penile/vaginal intercourse

10 years imprisonment

Taking into account one offence on Form 1 (seq 66)

Total sentence 2 years 3 months – s/p 3 years

65

Sexual Intercourse with a Child 14-16 years – s 66C(3) Crimes Act

As above

10 years imprisonment

Taking into account two offences on Form 1 (seq 67 and 68)

As for sequence 64

Matters involving TL   

Sequ

Offence

Description

Maximum Penalty

Indicative sentence

47

Threaten to Distribute Intimate Image without Consent – s 91R(2) Crimes Act

Threats to release images in possession of offender

3 years imprisonment or 100 penalty units

Taking into account multiple offences on Form 1

Total sentence 9 months – s/p 12 months

Orders

  1. In respect of the matters to which the offender has pleaded guilty he is convicted.

  2. In respect of sequences 29 and 55 the offender is released on a Community Correction Order for a period of 2 years. Such orders are conditioned:

  1. That the offender commit no further offences; and

  2. He appear for sentence in respect of any breach committed within the period of the Orders

  1. In respect of all remaining sequences, the offender is sentenced to an aggregate sentence of 8 years 6 months with a non-parole period of 4 years 8 months. The balance of term is 3 years 10 months.

  2. The non-parole period dates from 22 December 2020 and will expire on 21 August 2025.

  3. The balance of term will commence on 22 August 2025 and will expire on 21 June 2029

  4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

  5. The sentence indicates a finding of special circumstances the reasons for which have been set out earlier in these reasons. The non-parole period is 55% of the total sentence.

  6. I direct that a copy of the report of Professor Woods be forwarded to the Department of Corrective Services with the relevant warrant.

**********

Decision last updated: 07 November 2022

Most Recent Citation
Cases Citing This Decision

4

R v Widdison [2024] NSWDC 601
R v Murphy [2023] NSWDC 562
R v WM [2023] NSWDC 138
Cases Cited

32

Statutory Material Cited

4

Aslan v R [2014] NSWCCA 114
Bugmy v The Queen [2013] HCA 37
R v Hoar [1981] HCA 67