R v Holt

[2019] NSWDC 836

District Court

New South Wales

Medium Neutral Citation:	R v Holt [2019] NSWDC 836
Hearing dates:	30 October 2019
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted. Special circumstances found – young age, first time in custody, need for an extended period of parole to assist with appropriate reintegration into the community. Indicative sentences of imprisonment: 005 – Count 4 – 5 years – NPP of 2 years & 6 months 002 – Count 6 – 5 years – NPP of 2 years & 6 months 006 – Count 5 – 1 year Aggregate sentence: The offender is sentenced to a term of imprisonment of 6 years comprising a NPP of 3 years to commence on 29 August 2019 and to expire on 28 August 2022, and a balance of term of 3 years to commence on 29 August 2022 and to expire on 28 August 2025.
Catchwords:	CRIMINAL – Sentence – after trial – found guilty on 3 of 7 counts - sexual intercourse without consent (2 counts) - intentionally recording an image without consent – opportunistic offences - at party – alcohol – issue of consent – offender’s limited insight – lack of remorse and contrition - Victim Impact Statement – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina Holt, Thomlen
Representation:	Counsel: Mr A Metcalfe   Solicitors: Ms R O’Meagher Ms C Murphy Mr R Harrison
File Number(s):	2018/00185831
Publication restriction:	NPO in respect of the name of the complainant or anything that might tend to identify her

Judgment

1. Thomlen Holt appears for sentence in respect of three offences. The first offence was Count 4 on an indictment, sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The maximum penalty provided is 14 years’ imprisonment, and there is a standard non-parole period of seven years. The second offence in chronological sequence was intentionally recording of an image without consent, Count 5 on the indictment, contrary to s 91P(1) of the Crimes Act. The maximum penalty is three years’ imprisonment and/or a fine of $11,000. There is no relevant standard non parole period. The third offence was Count 6 on the indictment, being again sexual intercourse without consent contrary to s 61I of the Crimes Act. Again, the maximum penalty is 14 years’ imprisonment, and there is a relevant standard non-parole period of seven years.

2. The offender stood trial on an indictment containing seven counts and was convicted in respect of Counts 4, 5 and 6 on 29 August 2019. On that date, he was refused bail and has been in custody since that date until today, only in relation to these offences.

3. I intend in dealing with the facts that I find to also outline the allegations made in relation to each of the other four counts on the indictment as it is relevant in particular to the Victim Impact Statement.

4. The victim and the offender had been close friends for a number of years, and the offender had had a “crush”, for want of a better term, on the victim in high school. There was evidence in the trial that he continued to have an interest in the victim in 2017.

5. On 15 December 2017, the victim and the offender attended a party at the premises of Mr Hunter Martin. The party was to celebrate the return of one of the friends to the area for the Christmas break. It went into the early hours of 16 December 2017.

6. As might be anticipated, most guests were drinking alcohol at the party, including the offender and the victim. In addition, the victim, who suffers from depression, had taken one and a half tablets, or 30 milligrams of Citalopram, which she was prescribed to take daily. At one point during the evening, the victim left the party with another attendee to walk to a different house in order to retrieve a bicycle belonging to that person, which had been taken to the other house by another person who had been attending the party.

7. She then returned to Mr Martin's premises in Peel Street, and the party continued. The victim recalled dancing after she returned to the party, and the next thing she recalled was waking up on the couch with the offender lying behind her. Sometime between 1.30am and 2am, Mr Martin had gone to his bed in the premises, but before doing so, he had seen the victim lying on the couch in the lounge room, and observed that she was well affected by alcohol and drowsy. He asked her if she would prefer to sleep in his bed, but she declined.

8. At about 3am, the offender and a few others left the house and walked to the Caltex service station, and at approximately 3.45am, the offender returned to the Peel Street residence alone. Sometime after the offender returned from the service station, the victim woke up on the couch wearing her shoes, jeans and a shirt. She kicked her shoes off before realising that the offender was lying behind her on the couch. He was fully clothed and appeared to be asleep. There was a blanket covering the pair and the offender's left arm was draped across the victim's left shoulder.

9. The victim went back to sleep. She was not concerned by the offender's presence. They had slept beside one another before without incident, and he was a close and trusted friend.

10. During the trial, the victim's evidence was that when she woke up for the second time she was lying on her back on the couch. She realised her left palm was resting on the offender's erect penis. The victim noticed her jeans and underwear had been pulled down to her mid-thigh, and the offender was rubbing her vagina with his fingers. She felt his fingers moving in and out of her vagina. That was Count 1 on the indictment, being sexual intercourse without consent, in respect of which the jury found the offender not guilty, and of course I am not sentencing him for any matters where the jury found him not guilty.

11. The offender was moving the victim's hand back and forth along his penis. That was Count 2 being an indecent assault, again in respect of which the jury found him not guilty. The offender said to the victim "I love you". The victim gave evidence that she rolled onto her right side and moved her hand off the offender's penis. The offender kept his fingers inside her vagina with his other hand and put a finger inside the victim's anus. That was Count 3 on the indictment, sexual intercourse without consent, again a count in respect of which the jury found him not guilty.

12. The victim said she began to cry but was in shock so did not make any noise or say anything to the offender. In relation to those first three counts, when the offender was later interviewed by police, he admitted the act relevant to Count 1, but said the conduct was consensual. As to Count 2, that being her hand on his penis, he disputed that he put her hand on his penis, and again, consent was the issue. In relation to the third count, being sexual intercourse without consent, constituted by digital penetration of the anus, the defence case was that it never happened at all.

13. After approximately a further ten minutes, the offender removed his hands from the victim's genitals and rolled her onto her back. He pulled her jeans and underwear down to her shins and began performing cunnilingus upon her. That was Count 4, sexual intercourse without consent. The victim did not say anything. The victim saw the offender was kneeling over the top of her with his legs on the outside of hers. He reached down and picked up his mobile phone. The offender moved one of knees inside her legs and pushed the victim's legs open and took photographs of the victim's genitalia. That was Count 5, intentionally record intimate image without consent. I note that at least one photograph was taken.

14. The offender put his mobile phone back onto the floor and lay on the left hand side of the victim and put his fingers inside her vagina. That was Count 6, sexual intercourse without consent. The victim again did not move or say anything. The offender lifted the victim's head and placed his right arm underneath so that her neck was resting on his right upper arm. The victim rolled away from the offender, who said "If you want it, grab my arm." The offender then grabbed the victim's right hand and made her squeeze his right arm. He let go of her hand and she pulled it away. The offender pulled his right arm out from under the victim's head.

15. The victim then felt the offender push his penis into her vagina from behind. That was Count 7 on the indictment, sexual intercourse without consent. The offender had penile-vaginal intercourse with the victim for some minutes before he stopped and got up off the couch. Whilst the victim was still lying on her side, the offender pulled her pants up, put the blanket over her body and left the room. The victim remained lying on the couch until shortly after 6am when she sent a text message to Andrew Yates, her boyfriend/ex-boyfriend, asking if he was able to come to ([her home]. During this conversation, the victim told Mr Yates that the offender had raped her. As to Count 7, which was penile-vaginal intercourse, the defence case was that that act never happened at all, and he was found not guilty in respect of that charge.

16. Shortly afterwards, Mr Martin entered the room and asked if the victim wanted to lie in his bed while he went to Albury with another of the party attendees. The victim moved to Mr Martin's bed. While the victim was lying in Mr Martin's bed, the offender entered the room and sat on the end of the bed and said "Are you okay? You've been passed out for about ten hours." The victim did not say anything but rolled over and closed her eyes. The offender said, "Okay, well I'm going to head off now."

17. At approximately 1pm, Mr Yates picked up the victim and took her home. The victim had a shower and then went with Mr Yates to the Hume weir to talk privately. When the pair had finished, Mr Yates drove the victim back to her family residence. Later that night, the victim told her mother about the incident. They went to the local hospital and Police Station before driving to Albury Base Hospital. At that time there was no doctor available. The victim's parents took her home and returned to the hospital at a later stage.

18. In the days after the party, the offender spoke to friends about what had occurred. He maintained that there was consensual touching between the two before the victim passed out, at which point he had desisted from any further conduct. The offender subsequently participated in an interview with police and that version of events was relied on at trial. The offender's case was that the victim had initiated the sexual contact, and through her body language, indicated that she was consenting. He initially admitted that the sexual act related to Count 1, digital-vaginal penetration, and he alleged that there had been mutual fondling, including the victim rubbing his penis, before he noticed that the victim had passed out. His case was that the sexual act ceased at that point. He denied ever engaging in the acts relating to Counts 3, digital-anal penetration, and Count 7, penile-vaginal penetration.

19. However, only after he had locked himself into that account was he then directly challenged by the interviewing officers about the acts relating to Counts 4, cunnilingus, 5, the photo, and 6, the subsequent digital-vaginal penetration. As to Count 4, the act of cunnilingus, he admitted that act, but the issue was consent. In relation to Count 5, the taking of the photographs, he admitted that act but said that he had only taken one photograph, and again, consent was the issue. In relation to Count 6, that is, an act of digital-vaginal penetration, he admitted that act, and again, consent was the issue.

20. During the trial there was evidence from a Dr Farrar suggesting that the victim may have been labouring under the sedative effect of alcohol and Citalopram at the time of the offences, and that she was likely to be suffering from “memory fragmentation” as a result of the combination. Clearly, the jury entertained doubts either about the victim's honesty or reliability in relation to Counts 1, 2, 3 and 7, which likely attached to her reliability in the light of her intoxication at the time of the offences and the potential impact that had on her memory. While it is speculation, it may have been that the verdicts were not an indication of a finding that she lacked honesty, as that would have tended to result in an acquittal on all counts. However, that is not a matter for me on sentence.

21. During the interview with the police, the offender admitted that the victim fell asleep after the first act of digital penetration and mutual touching, but then claimed that he ceased any further sexual activity until he was confronted with the allegations of cunnilingus and photographing her genitalia, and only then did he admit to those acts and then admitted to the second act of digital penetration. Both parties have urged on the Court that the Court would find in relation to those three counts in respect of which he was found guilty that they occurred at a time when the victim was not consenting to them and that the offender was reckless as to her consent at that time.

22. As to the objective seriousness of the offences I accept that each is an inherently serious offence. The legislation does not distinguish in relation to sexual intercourse between one act or type of sexual intercourse and another. I am, however, of the view that cunnilingus, as offensive as that may be to the individual, and digital-vaginal intercourse, are likely to be less significant to a victim than penile-vaginal intercourse which carries with it the risk of transmitted diseases and pregnancy. There was no indication of force used or threat or injury to the complainant, and in those circumstances I would assess the objective seriousness in relation to Counts 4 and 5 as approaching the mid-range of objective seriousness, noting that the mid-range of objective seriousness is not a dot point on a continuum, but a range.

23. While the victim was affected by alcohol, and potentially Citalopram, she remained on the lounge in circumstances where she trusted a person she regarded as a close friend. The offender's conduct was an abuse of that relationship which they had developed over many years, having attended school together, and continuing to have contact after school. I accept that the offences were entirely opportunistic in the circumstances of the complainant being affected by alcohol, and as a result, present in Mr Martin's house.

24. As to the photographing of the complainant's genitalia, I am of the view that that can be appropriately regarded as a trophy photograph taken without the complainant's consent, and which of course had the possibility of being transmitted to others, or retained by the offender for his own future sexual gratification. Although I note that in the interview he referred to having deleted it from his phone, that appears to be only after he had received communication from a female friend of the complainant's, to whom she had provided some details, providing information to the offender about the awareness of the complainant of his conduct. In my view, that offence is in the mid-range, although towards the bottom of the mid-range. I note her evidence was that she observed the flash on the camera to go twice, whereas the offender's version was that there was only one photograph. There was no other evidence in the trial as to examination of the phone to determine whether there was a recoverable photograph or more on the phone.

25. As to subjective matters before the Court, there is the offender's criminal history. I note that at the time of the offence he was 18 years of age, and is now 20 years of age. Before the Court is his criminal history. He had never been convicted of any criminal offence prior to trial, and there is a single matter contained on his criminal history which is a pre-trial offence, occurring on 28 October 2018, being an offence of contravening a prohibition or restriction in an AVO. The AVO was taken out on behalf of the complainant in this matter to protect her in the circumstances where she and the offender resided in the small country town of Holbrook while the offender was on bail. Before me are the facts in relation to that particular breach, which in my view has no significant impact adverse to the offender in relation to the sentencing in this matter, having had the benefit of the full facts.

26. The offender did not give evidence at trial but relied on the record of interview conducted with the police on 15 June 2018. Before the Court is a report from Bradley Jones, psychologist, dated 23 October 2019, a reference from a Willy Burger, being the commanding officer of the training ship Albury. Although undated, the content makes it clear that he is aware of the matters. A further reference dated 23 September 2019 under the hand of Braydon Scott Webb, a reference from Noel Holt, being the grandfather of the offender, dated 16 October 2019, a reference from Kerry Rhodes dated 20 October 2019, a reference from Emma Oram dated 17 October 2019, and lastly a reference from Abby Austin.

27. Subjective matters are drawn from that material. In relation to the character references, I note that the commanding officer, Mr Burger, has known the offender since approximately 2013, the offender having been a naval cadet at TS Albury. During the course of the trial, there was also evidence called on character from Ms Webb, who was also familiar with the offender from that time, but also lived in the Holbrook area and was, independent of that link, familiar with him. Both regarded the offender highly, but I note that there is nothing in the reference from Mr Burger which indicates that he had any contact of substance with the offender outside of the naval cadets, and in that respect his exposure to the offender was, one would understand, over approximately a five or six year period while he was a juvenile training as a naval cadet, in circumstances where the training of male and female cadets involved gender separation on all occasions. The respective sexes being required to sleep on different floors of the facility, and by a general rule of no physical contact between them, but an enforced separation at all times of 30 centimetres. However, I note that Mr Burger states in respect of his knowledge of the offender that the offending is out of character.

28. Mr Braydon Webb has been a friend of the offender's for some nine years, and together with him trained in the naval cadets where he states that "We learned the Navy values and signature behaviours (honour, honesty, courage, integrity and loyalty), which we have both continued to live by." As to the complainant and her trust in the offender's integrity and loyalty, there would be no remaining faith.

29. In relation to the reference from Noel Holt, he speaks about his grandson's high work ethic, having secured a job at the local butcher shop while he was at school, mowing lawns for neighbours and doing garden maintenance on weekends, and gaining temporary employment at various retail outlets in the local area. Prior to the reference being written, he had worked apparently with his father over the past year and a half, doing landscaping work in and around the local area.

30. The final line of his reference is "Considering his expressions of remorse and distress, I do not believe he would be a repeat offender." I have considerable difficulty with the assertion that the offender has expressed remorse or contrition. There is nothing contained in the letter which indicates how that was expressed and it is entirely inconsistent with the fact that this was a defended trial, and comments that I will later come to, which are contained in the psychologist's report.

31. The reference from Kerry Rhodes, the owner operator of Kezza's Kitchen, a takeaway food shop located in the local area, indicates that she has known the accused for the past two years professionally. So that is since approximately October 2017, only a short period before the timing of the offences, and her association with him is as a result of his having worked in the business, rather than generally associating with him in the community. She indicates that she found him a pleasure to work with, that he was professional, trustworthy and reliable. There is reference in her letter to understanding that he had been charged with taking an intimate image and sexual assault charges.

1. The letter from Emma Oram is in circumstances where she has only known the offender for a period of approximately one year from about October 2018, and knows him through her friend, the offender's sister. As I indicated when the reference was tendered, that was a period entirely after the commission of these offences, and a time when one would hope that an offender facing charges of such a nature would ensure that his conduct did not come into question by anyone else. In my view, such a reference is of little weight in relation to a matter such as this, although I will take it into account.

2. As to the reference from Abby Austin, she has known the offender since late 2012, which was Year 8 at high school. She speaks highly of the offender, and has remained in touch with him on a regular basis since high school. She states that she has never witnessed him make a girl feel uncomfortable or pressure anyone into doing anything, that he has always been a gentleman towards females and holds a high respect for their wellbeing.

3. I accept as a general proposition that those persons who have provided references regard the offender highly, and I note the evidence on character given in the course of the trial. However, he was found guilty of significant offences, as previously referred to. The report from Bradley Jones which I said I would return to, includes the following:

"Mr Holt voices being disappointed in the guilty verdict and maintained his innocence throughout the interview. He further reported that since the trial and time incarcerated he has reflected back on the night of the offence and admitted he may have misread the behaviours, stating her behaviours may have been difficult to read due to her mental health and the fact she may have not been aware of what she was doing."

35. He went on to say:

"If she was not consenting, I am really sorry for what happened. I believed in my mind she was happy to have the sexual activity. If she wasn't, then I am very sorry for everything that happened that night."

36. There are a number of other relevant comments by the offender contained in the report,

"He stated that he implied consent as the victim initiated sexual activity and had the opportunity to stop or leave" (p 4).

At p 6:

"He stated that the victim rubbed her backside against him, making him understand this as an indication of wanting sex. He stated that the victim removed her jeans and underwear with no concern of being seen by others."

37. I accept the Crown's submission that those extracts that I have referred to demonstrate that the offender has limited insight into his behaviour and has not accepted responsibility for his role in the events on 16 December 2017. Having already made an observation about the reference to remorse and contrition in the reference of his grandfather, Noel Holt, I note I am unable to find any acceptable evidence of remorse or contrition in this matter, particularly in the light of the various passages I have just referred to in the psychologist's report, and also because this was a defended trial in relation to which the offender did not give evidence either in the trial or on sentence, so that any expression or remorse or contrition could be considered by the Court with the benefit of cross-examination.

38. I have no doubt that the offender sincerely regrets his conduct, but only as a result of the consequences that it has had for him, rather than the consequences that it has had for anyone else, including the victim and her family.

39. The offender is one of four children having three younger sisters. His father is a paramedic. He attended Budgewoi Public School for kindergarten, and for Year 6 went to the Holbrook Public School before attending the Billabong High School from Year 7 through to Year 12. I have already noted his time in the Naval Cadets. He described himself as being an average student with normal behaviour. He has had some five to six jobs in general labouring since leaving school, and as I have already noted, in relation to such things as landscaping, tree planting, gyprocking, lawn moving, fast food and cashier. He worked at an IGA where his mother is a manager for approximately 12 months.

40. He commenced drinking alcohol at the age of 16 as a social activity and does not have an alcohol consumption problem. He commenced smoking cannabis when he was aged approximately 18, again as a social activity, consuming one or two cones one to two times a week. I accept that he does not have a problem with prohibited drugs, except noting of course that he should not be using them at all. He identifies as heterosexual and reported his first sexual engagement was at approximately the age of 17 with a female peer. He has had a number of other sexual encounters with females since that time: what might be perhaps easily summarised as fairly typical or average teenage behaviour.

41. He has no mental health issues, and has apparently coped with imprisonment reasonably well, although he has some difficulty sleeping and has requested being provided with a sleeping medication, which at the time of the report had not yet been provided. Mr Jones, psychologist, opined that he was at a low risk of reoffending as to general offending and also sexual violence offences.

42. Also available to the Court is a Sentence Assessment Report under the hand of Paul Willis, dated 10 October 2019. It includes a significant portion of a pre-sentence consultation with a senior psychologist at the Junee Correctional Centre, although I note in respect of it that the senior psychologist was apparently not apprised of the fact that the offender had only been convicted in respect of three offences out of the seven, and that the assessment itself was limited by what could be conducted at the time.

43. The result is that it has been submitted by Mr Metcalfe on behalf of the offender that the Court would have some difficulty with accepting from Paul Willis the following:

"Mr Holt has been assessed as at a low risk of reoffending, according to the level of service inventory. Community Corrections has overridden the offender's overall risk of reoffending to Tier 2/medium because of the results of the Sex Offender Supervision Assessment conducted by a senior psychologist at Junee Correctional Centre."

44. I accept that in the circumstances of the limited nature of the assessment and the lack of understanding by the assessor as to the particular matters he had been convicted of, rather than charged with, that it is appropriate to hold that he is a low risk of reoffending.

45. It is also necessary to take into account the age of the offender at the time of the offending. He was then 18 and is now 20. It has long been recognised that persons do not necessarily mature simply because they turn 18 years of age, and that frequently males do not mature until their early 20s. I am of the view that there is a certain degree of lack of maturity which unfortunately the offender allowed to get the better of him in circumstances of opportunistic offending in relation to a young complainant who had been a close personal friend for many years.

46. It is a tragic circumstance, but he should have known better.

47. Also provided to the Court was a Victim Impact Statement from the victim. I note that she has had a number of significant problems, and that the offending has had a substantial impact on her. However, it is clear that when she speaks about the impact on her, she is speaking about the whole of the allegations, not simply the matters in relation to which the offender was convicted. As to some of the matters raised in the Victim Impact Statement, such as her treatment by the local community, and being called a “slut” and matters of that nature, it is of great concern that a complainant in relation to sexual offending of this nature has to put up with a community backlash, no doubt inspired by favourable views of the offender held in that community without real knowledge of the facts in the case, or what is asserted or accepted to have happened.

48. In my assessment it was also evident during the course of the trial in relation to a number of the witnesses who gave evidence about the party and the events, who were friends of both the offender and the complainant, that they tailored their evidence in order to minimise any adverse effect on the offender's prospects of being acquitted. I will not identify them in these reasons, but it was clear that several of the witnesses, being both male and at least one female, were endeavouring to minimise by failing to remember what they had previously told police in statements.

49. I have no doubt that the victim will continue to suffer if she remains in the local community from such outrageous behaviour by the local community, or at least some members of it. I have no doubt that she will continue to struggle with her own mental health issues, significantly exacerbated by this offending, for many years, if not for the balance of her life, as is entirely common in relation to offending of this nature. It can only be hoped that she manages to reach a more comfortable place in the future, but there is no guarantee.

50. Despite what I have just said, I accept that the traumatic emotional consequences for her and mental health issues which have been no doubt exacerbated by this conduct are what can ordinarily be expected as what might be referred to as the usual tragic consequences of offending of this nature which is already taken into account by the nature of the maximum sentence which is available, as well as the statutory non-parole period.

51. The matter having been a defended trial, of course, there was no utility. I have already indicated that I do not accept that there is any acceptable evidence of genuine remorse or contrition, although I accept that the offender is a low risk of reoffending, and in the circumstances of his youth and past history, I accept that there is a good prospect of his rehabilitation.

52. In sentencing the offender, the Court must take into account the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. It must take into account denouncing the offending conduct, protecting the public, and providing for both specific and general deterrence. General deterrence is always a significant factor in relation to offending of this nature, and specific deterrence is also relevant in relation to this particular matter.

53. Although Mr Metcalfe on behalf of the offender submitted that if the s 5 threshold had been crossed and that this was a matter in respect of which a sentence could be imposed which would be capable of being served by way of an Intensive Correction Order. That would, of course, only apply on the basis where there is more than one offence that a sentence of imprisonment of three years or less was appropriately available, a submission with which I do not agree. Offending of this nature requires significant sentences, particularly to provide for general deterrence and also to acknowledge the objective seriousness of the offences committed, and the trauma inflicted on victims as a result of such offending.

54. I have taken all of those matters into account. I note that the offender is otherwise a person who could be regarded as of good character and well regarded by those who provided references to the Court, with no relevant criminal history. However, I am of the view that the offending clearly crosses the s 5 threshold and a sentence of imprisonment must be imposed. I intend to proceed by way of an aggregate sentence, in which case I am required to provide an indicative sentence in relation to each of the offences in respect of which he has been convicted. Although I have referred to all of the allegations that were made, I note again that I am only sentencing him in relation to the specific offences in respect of which he was found guilty.

55. Mr Holt, would you please stand.

56. In relation to Counts 4, 5 and 6 on the indictment, you are convicted. The indicative count in respect of Count 4, it being an offence that carries a standard non-parole period, and taking that into account as a guidepost as well as the maximum term available of 14 years and a standard non-parole period, as I have said, of seven years, the indicative sentence must provide for both an indicative head sentence as well as an indicative non-parole period, in which case in respect of Count 4, being the act of cunnilingus, the indicative head sentence is five years and the indicative non-parole period is two and a half years’ imprisonment.

57. In respect of Count 6, it being the digital-vaginal intercourse, again, the indicative head sentence is five years and the non-parole period is two and a half years. In respect of Count 5, the recording of an image without consent, the indicative sentence is one year. I have then taken into account the question of matters of totality, the fact that all of this offending occurred on the one occasion within a relatively short space of time, and I have allowed for, in the circumstances, some accumulation and the aggregate sentence in those circumstances is a non-parole period of three years dating from when he was refused bail at the end of the trial, 29 August 2019.

58. The non-parole period will expire on 28 August 2022. The balance of term is three years, giving a total sentence of six years with a three year non parole period. I have significantly reduced the statutory relationship between the non-parole period and the head sentence, particularly taking into account the offender's youth, and my view that he will need an extended period of parole to assist him in reintegrating appropriately into the community. I further note, although I have not referred to it, that he has been in fact serving his time since going into custody in protection, which is not unusual in relation to offending such as this and I have taken that into account in determining the sentence and the non-parole period as well.

59. I accept even without the benefit of evidence that being in protective custody is a more restrictive and onerous form of serving a sentence than if an offender is a member of the general prison population, although of course it relieves the individual of the common threats to those who have been found guilty of offences such as this when they are in the general population. Nonetheless, their life is restricted by the facilities that are available, and in particular, the time out of cell which they are accorded. I further note in relation to the offender's rehabilitation that he continues to enjoy a high level of support from the local community and from his parents. Hopefully that, together with the three year period of parole, will assist him. I note in relation to the three year period of parole that it is in fact the maximum period under the regulations that an offender will normally receive by way of supervision. That completes the reasons unless there was something I missed.

BROWN: Just confirming the end date of the total sentence, your Honour.

HIS HONOUR: The end date was--

BROWN: 28 August 2025?

HIS HONOUR: Yes, 28 August 2025.

BROWN: Thank you.

O'MEAGHER: Thank you, your Honour. Ms O'Meagher here. Nothing further from the Crown.

HIS HONOUR: Thank you, Ms O'Meagher.

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Decision last updated: 03 March 2020