R v HJS

[2020] NSWDC 480

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v HJS [2020] NSWDC 480

Date of orders:

21 Augusts 2020

Decision date:

21 August 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [68]

Catchwords:

CRIME — Sexual offences — Sexual intercourse without consent

CRIME — Sexual offences — Indecent assault

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v The Queen [2011] HCA 39

Ibbs v The Queen (1987) 163 CLR 447

R v Holder [1983] 3 NSWLR 245

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)
HJS (Offender)

Representation:

Webb for the Director of Public Prosecutions
Davenport SC for the Offender

File Number(s):

2018/00329801

Publication restriction:

Unrestricted

Contents

Judgment

Introduction

Standard non-parole period

The facts

Objective seriousness

Section 21A.

Subjective case

Psychologist’s report

Testimonials

Sentencing Assessment Report

Covid 19

Guilty plea

Good character

Likelihood of reoffending

Remorse and contrition

Good prospects

Totality

Special circumstances

Sentencing considerations

Variation from SNPP

Orders

Judgment

Introduction

1. The offender appears for sentence on two charges of sexual assault under section 61I of the Crimes Act. Each charge has a maximum penalty of 14 years and there is a standard non-parole period of 7 years. There are no matters to take into consideration under the Form 1 procedure and there are no related or backup offences.

2. The offending occurred on 27 October 2018. The offender was born on 13 August 1958. The offender was therefore 60 years old at the time of this offending. He was employed as a school teacher at that time. At the time of the offending he had no criminal history, though it was to transpire that he had offended in the previous 12 months by way of common assault.

3. Since his arrest the offender has spent no time in custody for this offending (but had served 3 months of his Local Court sentence for common assault, which was later set aside). He has spent time at a rehabilitation facility to deal with his alcoholism. The offender spent nine weeks at that facility.

4. The ultimate issue arising from the submissions made on behalf of the offender and made on behalf of the Crown is whether in the circumstances of this case there is any other sentence more appropriate than a full time custodial sentence.

Standard non-parole period

5. The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost. I note at [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all Division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences”. The obligation being referred to was the central purpose of Division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.

The facts

6. The Crown sentence summary was tendered and became exhibit A and included agreed facts which are therefore in evidence. The following version is taken from those facts. The offending occurred in the early hours of 27 October 2018. That night, being the night of 26 October 2018, the offender’s son held a Halloween party. The offender’s son was 19 years of age. The guests were of a similar age including the victim in this matter who was an 18-year-old female.

7. The guests dressed up for Halloween including the victim who was wearing a black leotard with fishnet stockings thigh high socks and underpants and a bunny tail. The offender was present at the party and mixed with the guests. At one point he asked the victim to sit with him and gave her a “Jell-O shot”, a drink containing vodka. The offender gave the victim six or seven drinks containing rum and Coke. The victim had two further shots and asked other guests for alcohol. The victim became significantly intoxicated. The offender made comments to the victim such as “you’re hot” and “you’re sexy” which made the victim feel uncomfortable.

8. The victim had arranged with the offender’s son to stay at the house overnight. She told the offender this who then suggested that she sleep in his bed. She thought this would be fine because “he was my friend’s dad”.

9. At about 2 AM after having a shower and putting back on her leotard and underwear the victim went to the offender’s bed got in and fell asleep very quickly due to the effects of alcohol. The facts do not make clear whether the offender was in the bed already or got into the bed at a later time.

10. The victim woke up and could feel her leotard near her vagina had been moved to the side and could feel the offenders fingers touching her vagina and then felt the fingers go into her vagina. This constitutes count one. The offender was saying “you’re so perfect, beautiful”, and “you’re so wet” and “you’re so unconscious”. After hearing this the victim then felt the offender licking and sucking her vagina with his tongue and mouth. This founds count 2. The victim jolted her body and the offender quickly moved away. The victim then got up and went outside to have a cigarette and called her friend without success and so sent her text messages at 4:07 AM in which she said the following:

Jasmine help

His dad just raped me

I didn’t know what to do

I just payed there [sic]

He was saying how good I was

The said how he didn’t want to take advantage of me [sic]

Then kicked me

[*] Licked me

Help

11. The friend later collected the victim and the victim disclosed what had happened to her. The friend took her home and the victim’s brother later took her to the police station where she reported what happened.

12. At no time did the victim consent to these events and the agreed basis for sentencing is that the offender had actual knowledge that the victim was not consenting.

13. Later that day 27 October 2018 the offender was arrested and interviewed. The ERISP was in evidence and I refer to it below. In the facts themselves reference is made to certain questions and answers where the offender admitted that the victim had not given consent for what he did with his hand and mouth. As to what he did he admitted his hand would definitely have touched her vagina and when asked “did your finger go your hand go inside it?” He answered “I suppose the edge of my finger probably would have yes” and “um I did kiss her vagina once yes”.

14. I note the following matters from the ERISP:

1. The offender on his estimation at the maximum had half a dozen rum and Coke’s that he mixed himself.

2. He was in his bed before the victim; Q64. Though later at Q156 the offender suggests initially that he was not in bed first. Then at Q179 he states the victim “jumped” into bed when she came out of the bathroom in a way that suggests he was already in bed. The offender then says that he and the victim just cuddled and spooned most of the time.

3. The version given by the offender commencing at Q66 suggests that the touching of the vagina by his hand was accidental. This is not an offence of strict liability and his plea to the charge shows that this version was minimising events. The offender did not volunteer anything about the second count at this point of the interview. At Q220 the offender denied any intention in respect of count one. The offender did allow that he did leave his hand there for a bit longer than was necessary; Q245.

4. The offender puts his intoxication at a level of 5/10 at the time of going to bed and the victims at 6/10.

5. In terms of the extent of the digital intercourse the offender said at Q348 when asked if his fingers went inside her vagina “no I didn’t, I did not certainly insert them up inside her. As I said it would have certainly run along her the lips of her vagina in the first place”. I note the agreed fact is of the victim stating she felt the fingers go into her vagina, and penetration is an element of the offence.

6. At Q376 the offender was asked if he had performed oral sex on the victim to which he answered “A with my mouth you’re saying?” And then he admitted to kissing her vagina once. He then said he immediately felt disgusted and crawled back up the bed. Further questioning disclosed that he in fact was using his tongue and that his tongue came out two times. While this was happening his hand was still there meaning at her vagina

Objective seriousness

15. These are offences of sexual intercourse so that an element of the offending is that there is penetration of, on the facts of this case, the victim’s vagina.

16. It was submitted on behalf of the offender that these offences were below the mid range of objective seriousness. As it happens I agree with that assessment and even more so in respect of the count of digital penetration. I do not however accept the reasoning offered for the offender for that conclusion. Although not expressly stated there was about part of the submissions on behalf of the offender the flavour that the offence was less serious because the victim was a sexily dressed young woman at a party ending up in the bed of her friends father. If that was the intended submission then I reject it. On the contrary, I consider these aspects to make the offending more serious rather than less. As the victim herself said “he was my friend’s dad”. Unbeknownst to the victim what should have been a safe resting place for her turned out to be a high-risk environment. The lustful remarks made during the evening by this then 60-year-old of the 18-year-old friend of his son attending a Halloween party are clear indicators of what he was thinking. They are notably similar to what he was mumbling when committing the offending.

17. In my view the digital penetration is in the low range of objective seriousness. On any version of the facts the penetration could not be found to have been much beyond what was necessary to constitute the offence, with a consequence that the offending could have been much more serious. This offending also seems to have been relatively short. Further, despite my comments above the overall circumstances in one way do assist the offender, not because of the victim’s behaviour, but because the circumstances lack any what may be termed frank violence (though that is said with hesitation in any case of sexual assault) and there was no injury and the offender desisted on the first showing of resistance by the victim.

18. There has been a degree of deception in my view on the part of the offender who clearly by his prior conduct that night was sexually interested in the victim, a teenage friend of his teenage son, remembering the offender was then 60. He could not seriously think that the 18-year-old “hot” and “sexy” female was remotely interested in him, and even if she was there remains of course the distinct lack of consent. In my view the submission that the offending was opportunistic does not really do the situation justice. Rather the case is one of the offender taking advantage of a situation.

19. The second count is more serious in my view. The penetration appears to have been (on the version given by the offender) carried out whilst his hand was still on the victims vagina, so aiding the cunnilingus. I would assess this count as below the middle of the range. Whilst the offending was not unduly lengthy in my view it was more than fleeting. Whilst the fact of a person being asleep at the time the offending commences is consistent with a low level of seriousness insofar as there is a lack of violence and coercion there is a degree of seriousness introduced by the fact that the offending occurs on an absolutely defenceless person.

20. In relation to objective seriousness the Crown pointed to the significant age gap and also pointed to the offender providing the victim with a “jello shot” of vodka. The Crown emphasised the vulnerability of the offender noting she was asleep, drunk, young and in an unfamiliar environment at night. I agree with the Crown in all respects in this regard and would note that whilst it was not her home it was a home of a friend and a place where as I have already noted she was entitled to feel comfortable and safe. The aggravating features noted in section 21A of vulnerability and of occurring in a home in my view apply here objectively to make the matter more serious.

21. The Crown submission was that the offending was in the mid range of seriousness. In my view neither offence gets to that level for the reasons stated above though I do consider count 2 to be more serious.

22. Informing these views I am aware of the view there is no hierarchy of sexual acts. As the High Court said in Ibbs v The Queen (1987) 163 CLR 447 “When an offence is defined to include any of several categories of conduct the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case”.

Section 21A.

23. Beyond the matters discussed above there were no particular submissions concerning aggravating features under this section. To consider them again would be to double count those factors. I do not give them any additional weight.

24. I consider the mitigating factors in conjunction with the subjective case below.

Subjective case

Psychologist’s report

25. The offender relied on a psychological report dated 7 November 2019. The initial referral was for counselling in relation to alcohol abuse and concerns relating to this matter and then became a forensic report.

26. The psychologist took a history of the offender having one sister and that his mother aged 92 was still alive. His father died in an accident when the offender was aged one. The offender had a childhood free from any form of abuse and had a close loving relationship with his stepfather. He was married for 20 years and has three children. The offender completed high school and qualified as a teacher and remained in that occupation until 2018.

27. The offender reported a long history of alcohol use which increased markedly 10 years ago to the point of seven alcoholic drinks per day six days per week. Psychological testing revealed alcohol dependency and the psychologist suggests the offender would meet the DSM-V criteria of alcohol use disorder - moderate.

28. The report writer says the offender reports being inebriated on the night of the offending, and I note the recent sentencing assessment report describes him being heavily under the influence of alcohol at the time of the offence. I note this is at odds with question-and-answer 197 of the ERISP, where the offender gave a measure of his intoxication as being 5/10.

29. Assessments carried out by the psychologist concluded that the offender was in the low risk range of committing future sexual violence offences. Further testing indicated he fell in the low range for risk of recidivism. Further testing suggested severe depressive symptoms in the two weeks prior to testing but this was attributed to the current court matter. Other testing showed low anxiety in the four week period prior to testing.

30. In my view what is revealed by this report is the unfortunate fact of the offender’s father dying when he was only 1 year old, that there had been a fairly traumatic ending to his marriage, and his use of alcohol increased in the last 10 years. I accept the assessment of alcohol use disorder moderate. I note also that there was no submission seeking to mitigate this offending by reference to intoxication, an acknowledgement of s21A(5AA) CSPA.

31. The psychologist suggested a treatment plan involving residential detoxification. This occurred with the offender attending the Wayback drug and alcohol rehabilitation centre. An adjournment of these proceedings under section 11 of the CSPA was granted to allow this to happen and the offender attended for nine weeks. Pleasingly on one view, according to a letter from Wayback of 19 June 2020 the offender was discharged on the basis that there was no evidence of an ongoing alcohol dependence warranting full-time residential treatment. His attendance and performance at that institution was described as a credit to him. I note in the letter from Wayback dated 11 May 2020 it states “We have reviewed your prior history of alcohol consumption, interactions at Wayback and observe your physical and psychological behaviour. We find that although there are reports of isolated historical instances of problematic behaviour due to intoxication there is no real evidence of ongoing alcohol dependence warranting full-time residential treatment”.

32. This is obviously good from a general health perspective of the offender. It raised in my mind just what the purpose of the section 11 adjournment was. This is not a case of a drug offender with a hopeless addiction to drugs arguably fuelling his offending so that residential rehabilitation if successful may lead to a lesser sentence due to rehabilitation and arguably a decreased prospect of it happening again, though I do allow for the prospect that an abstinent offender here has less chance of offending. On the offender’s own version of his alcohol intake in the period before the offending it was clearly more than desirable but on one view not of great relevance to his offending conduct. This is even more so the case when his first estimates to the police of what he drank that night are taken into account. I do not accept the later versions he gave to the psychologist and to the sentence assessment report writer of being “heavily under the influence of alcohol” or being “inebriated”. It is clear that there was much drinking going on all round on the evening in question but I find I cannot make a finding one way or the other in terms of the offender’s state of intoxication. This is not relevant to mitigating the seriousness of the offending nor is it relevant to mitigation generally other than perhaps as to the reoffending issue. Given the rest of the subjective case, the good history of the offender otherwise, and the circumstances in which the offending occurred I am prepared to accept the likelihood of reoffending to be low.

33. In regards to other matters of health there was a report of a Doctor Dowla, a consultant in neurology and clinical neurophysiology suggesting it may be that the offender has small fibre neuropathy. There were no submissions as to the significance of this and I do not see how it impacts on the sentencing considerations.

Testimonials

34. Before dealing with the testimonials there were two letters written to the court by the offender. The first was dated 7 November 2019. In it he expresses his remorse and true regret for pain caused to the victim, her family and the community. He states that his behaviour is against the principles by which he raised his children and by which he conducted himself as a teacher for 38 years. He stated his intention of seeking alcohol treatment was to try to ensure this could never happen again.

35. With respect to the offender, I consider he does make a good point. This behaviour was out of character for him. Until this offending became known he had an unblemished record in dealing with young people for 38 years. There were other offences related to his employment which I mention below. He appears to have intact relationships with his children. There were some female family members present in court supporting him though it was not said as to whether they were children or partners of children or some other relation.

36. In his second letter, undated but written as I understand it shortly before this hearing which was on 14 August, he talks of the steps that he took to gain entry to a residential rehabilitation for alcohol. I note there that by the time he was at that clinic he had been abstinent for the best part of 8 months. As noted above his state was such that he was discharged as he had a place to live and due to his positive state, namely long-term abstinence. Since his discharge he has spent time with his sister as required by the bail conditions and carrying out renovations for her.

34. The offender relied on three testimonials. One was from a former pupil taught by the offender who notably was female. She speaks respectfully of him and of the way in which she was assisted by him as a teacher mentor and close family friend. She also notes his dedication to his family as a father of three, and his role as a single parent.

35. There was a second testimonial from a female friend. She is impressed by what she has seen of his behaviour in their friendship and notes that he has always shown her respect and courtesy.

36. Lastly was a third reference from a female friend of 40 years. She notes his good qualities as set out above and says she found it unbelievable when she heard the charges in the media.

37. In terms of the offender’s professional career it is I think more relevant than may ordinarily be the case because he spent his whole working life working with young people including of course young females not much younger than the victim in this case. There were some nine certificates or other indications of courses and recognition for the offender in his career. The material shows that for many years the offender worked in secondary schools. I am proceeding on the basis that he spent a large amount of his time with high school girls which I consider significant because as just noted the victim was 18, an age at which some youths are still in year 12. The relevance of these observations is again to emphasise the unlikelihood of reoffending for it would appear likely to me that there has been many opportunities or occasions in the past where the offender has been in the company of young women and managed to control his urges. This is what he singularly failed to do on the night of the offending.

Sentencing Assessment Report

41. A sentencing assessment report was prepared dated 12 August 2020. The report refers to previous convictions relating to common assault. These were matters of common assault where it was alleged that he had acted inappropriately by touching his students on the bottom and or thigh area. These matters were dealt with in the Local Court, and then by this Court, before me, as a severity appeal. I upheld the appeal and indicated I thought they were markedly low in objective seriousness. The 18 month sentence, with nine months non parole, was set aside, and CROs were imposed. The SAR refers to the current offending as being an escalation. Whilst it is true the current offending is more serious, I do not think consideration of the common assault matters is adverse to the offender given their minor nature. There was little if any submission made in respect of this offending by either party, other than as to the consequence of the offender having spent 3 months in prison on a sentence that was set aside.

42. On that point there was reference to extra curial punishment as the offender suffered from some vandalism, primarily a stone thrown through the rear window of his car. It seems to me more likely that was a reaction to the common assault matters against children rather than this matter. However nothing was said by the Crown contrary to the submission made that it should be taken into account in respect of this matter and so I have taken that into account. It would have been unpleasant to say the least to endure that kind of behaviour and I give it some weight but not great weight.

43. Returning to the SAR I note under “attitudes” it is said that although the offender accepted responsibility he also shifted blame toward the victim. This in my view is consistent with the submissions that were made on behalf of the offender referred to above. The views I expressed there apply here also and I find this an unhelpful attitude for the offender to have.

44. Consistent with the psychologist’s report there was a medium - low assessment of a risk of further offending although that had been carried out without the dynamic risk factors taken into account.

45. The offender was considered suitable for community service work.

Covid 19

46. I take into account that any period of incarceration will be more difficult than otherwise due to the current situation of no visits occurring. I am satisfied that there is a supportive family behind the offender who would if able visit him in prison.

Guilty plea

47. The agreed position in respect of count 2 is that there should be a 25% discount for the early guilty plea. There is a dispute as to count one. The offender argued for a discount of between 10% to 15%. For its submission the Crown relied upon the legislation governing discounts which I understood to be a reference to include 25D(2)(c) CSPA. The offender did not refer me to any contrary legislation nor is there any suggestion that the new legislation provisions do not apply. The history of the negotiations was outlined and there was no suggestion that the result would not be 5% in accordance with the legislation. In these circumstances I accept the Crown submission in this regard in respect of count 1, so that the discount will be 5%.

Good character

48. I have touched on the character of the offender when dealing with the above testimonials and his criminal history which consists only of the common assault matters referred to above. I note that offending occurred between July 2017 and February 2018, so before the current offending. I do not consider this offending disentitles the offender to leniency based on his total lack of any offending prior to 2017, at the age of 59 and 60.

Likelihood of reoffending

49. I accept the view of the psychologist in this regard as discussed above. I consider there is a low likelihood of reoffending.

Remorse and contrition

50. I accept the offender expressed remorse to the authors of the psychologist’s report and the sentencing assessment report and in his letter to the court. Nevertheless I do hold some concerns about the degree of insight of the offender into the seriousness of this offending. At interview with the police he made prolonged attempts at downplaying his conduct and in his interviews with the psychologist and for the SAR significantly emphasised the effect of alcohol upon him which does not match up with his estimate of six drinks to the police.

Good prospects

51. The offender has clear community and family supports. Due to this matter he has ceased teaching. Part of the offender’s material was communications from government agencies showing that his teacher accreditation had been revoked due to him no longer holding a working with children check clearance. The offender was given notice of the cancellation of that clearance by letter dated 30 October 2018. This was only three days after the offending but it is clear in my view at least that the letter of 30 October 2018 and the reasons which go with it are relating to these proceedings and not any other allegations of common assault. There is reference to the charge under section 61I.

52. The offender is therefore 62 and according to the evidence relying on jobseeker payments with no evidence of his superannuation position. My view is that his prospects may not be particularly good though that really depends on the superannuation position about which there is no evidence. Non-financially for the reasons noted in the previous paragraph his prospects would seem positive.

Totality

53. The review of the facts above shows that the two offences occurred in the one course of events. I note R v Holder [1983] 3 NSWLR 245 called for an evaluation in a broad sense of the overall criminality involved in all of the offending and to then determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

54. In Cahyadi v R[2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

55. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

56. In my view the facts of this case dictate that there be a significant degree of concurrency. The description of the offending in the ERISP suggests to me the penetration of count 1 was reasonably brief and it continued in a less penetrative way in part to facilitate the more significant penetration by cunnilingus. I have taken into account the agreed facts of the description of the victim of feeling the offender’s fingers go into her vagina.

Special circumstances

57. I accept the submission that this is a case where special circumstances should be found. This is due to the age of the offender and that apart from the 3 months in custody for the Local Court sentence that was later set aside, will be his first time in custody. I also take into account the Covid situation. Furthermore although the offender has managed to be abstinent for some time it would be appropriate that there be a lengthy period of supervision to ensure that abstinence is continued.

Sentencing considerations

58. The offences we are considering are serious offences as is reflected by their maximum sentence and the standard non-parole period. Both parties took me to statistics. In oral submissions the offender referred to statistics showing that out of 75 cases 3 had resulted in non-custodial sentences. Similarly the Crown took me to statistics which showed that out of 56 cases 2 had resulted in non-custodial sentences. As is well recognised none of that is very helpful without knowing something of the facts of the cases making up the statistics. In this regard the Crown provided the agreed facts for two of the cases which resulted in non-custodial sentences. One case, a matter of Saddler, concerned an 18-year-old offender and a 20-year-old complainant who had known each other through family for years. The actual offending was in some ways similar to the present but what is markedly different about it compared to the present is that Sadder was an entirely age-appropriate relationship prior to the offending and can more sensibly be understood without being excused as being brought about in part by mixed messages. That cannot be said in the present case.

59. The other case of Russell involved a 28-year-old complainant and a 38-year-old offender who had been friends for seven years. In the circumstances of a music festival where much alcohol was consumed the complainant performed fellatio on the offender willingly, lost consciousness due to alcohol and then came to with the offender penetrating her from behind.

60. Both these cases are serious examples of sexual intercourse. But they have common features not present in the current case. Namely that there was a relationship of some type between the parties and that there was a degree of miscommunication. Without suggesting that miscommunication excuses this type of behaviour it is obviously relevant on sentence. That type of miscommunication is not present in the case of the offender.

61. Both parties made brief further submissions in writing following the hearing. This included from the Crown the agreed facts of the third case of the 75 cases referred to in the statistics where a non custodial sentence was given. The facts of that case, R v Stacy, like the other two cases mentioned above, can be distinguished from the present case as the facts showed a history of some relationship between the offender and complainant and a degree of what could be termed miscommunication.

62. Section 3A sets out the purposes of sentencing. They are in short:

1. to ensure the offender is adequately punished;

2. both general and specific deterrence;

3. to protect the community;

4. to promote rehabilitation of the offender;

5. to make the offender accountable for his actions;

6. to denounce the conduct;

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

63. In my view the matters which need to be addressed in this case are deterrence with the emphasis on general deterrence rather than specific deterrence, denunciation of the conduct, and recognition of the harm done. I do not consider the purpose of protection of the community requires significant recognition given the low likelihood of reoffending, and that the purpose of general deterrence is already being recognised. The rehabilitation purpose is recognised sufficiently on the facts of this case by the finding of special circumstances.

64. My view is that the offending in this case is such that there is no other sentence more appropriate than a term of imprisonment. The offending was in my view quite deliberate and followed the lustful thoughts of the offender throughout the evening. It was a total betrayal of the trust the victim had placed in the offender as the father of her friend. The prevarication of the offender in the ERISP as to his offending supports the view, as he admits by his plea, that he knew there was no consent, and further, coupled by his retreat up the bed, knew what he was doing was wrong. The legislation makes it plain that this type of behaviour is not to be tolerated. To accede to the offender’s submission of a community correction order would in my view be to border on being belittling not only of the victim but of the standard the legislation sets in the interests of the community.

65. Once the conclusion that the section 5 “threshold” has been crossed is reached, then for offences of this type there is no option but for a term of imprisonment to be spent in full-time custody. Section 67(1)(b) of the CSPA provides that an ICO must not be made in respect of the offences committed here by the offender. I propose proceeding by way of an aggregate sentence. I therefore need to first determine the indicative sentences.

66. In arriving at the indicative sentences, and the aggregate sentence, I have taken into consideration the range of matters discussed above. Without being exhaustive, this includes the serious nature of the offending, the extra curial incident/s the offender suffered, his age and good character.

67. Taking into account all of the factors discussed above I come to the conclusion that there should be a term of imprisonment in respect of the cunnilingus charge of two years which after the 25% discount will be 18 months. In respect of the charge of digital penetration, and allowing for the 5% discount the sentence will be six months. I intend to proceed by way of an aggregate sentence which will be 21 months. There will be a non-parole period of 12 months. Had I not proceeded by way of an aggregate sentence, and looking at the two charges separately, I would have set a non parole period of 11 months in respect of the cunnilingus charge, and 4 months for the digital charge.

68. The commencement date of this sentence will be backdated four months to allow for the three months in prison that the offender endured in relation to the common assault matters that were successfully appealed, and allowing a further month for the time he spent at Wayback. I accept the offender’s submission in respect of the time spent in custody on the Local Court matters and note that the Crown accepted that position.

Variation from SNPP

69. My indicated non parole periods vary from the SNPP. This is for the following reasons:

1. That the matters are not matters in the middle of the range of seriousness as that term is used in s54A.

2. Because of the discounts for the guilty pleas, being 5% and 25% in respect of counts 1 and 2 respectively.

3. The finding of special circumstances for the reasons stated above.

4. The subjective case of the offender, which I consider strong.

Orders

70. I make the following orders:

1. For the two offences under s61I of the Crimes Act the offender is convicted.

2. The offender is sentenced to a term of imprisonment with a non-parole period of 12 months to commence from 21 April 2020 and expiring on 20 April 2021, with a balance of term of 9 months expiring on 20 January 2022.

3. The first date that the offender is eligible for release is 20 April 2021.

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Amendments

27 August 2020 - paragraph [10] - [70]: corrected formatting and paragraph numbering.

Decision last updated: 27 August 2020