R v Irving

[2025] NSWDC 392

District Court

New South Wales

Medium Neutral Citation:

R v Irving [2025] NSWDC 392

Hearing dates:

6/5/25-13/5/25, 26/6/25, 8/8/25

Date of orders:

8 August 2025

Decision date:

08 August 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 6 years with a NPP of 4 years (1/11/24-30/10/28).

I find special circumstances.

The indicative sentence are:

Count 1 – 2 years

Count 2 – 2 years

Count 3 – 8 months

Count 4 – 12 months

Count 5 – 3 years 6 months with a NPP of 2 years 4 months

Count 6 – 2 years 3 months

Count 7 – 2 years

Count 8 – 3 years 6 months with a NPP of 2 years 4 months

Catchwords:

Crime – Sentence – Aggravated carry out sexual act with child 10-16 years – Sexual touching child 10-16 years – Sexual intercourse with child under 14 years – Sexual touching child under 16 years – Carry out sexual act towards child under 10-16 years – Sexual intercourse with child 10-14 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R [2013] HCA 37

DB v R [2023] NSWCCA 323

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

Kelly v R [2022] NSWCCA 189

Mohindra v R [2020] NSWCCA 340

Muldrock v R (2011) 244 CLR 120

Stobinski v R [2025] NSWCCA 97

Category:

Sentence

Parties:

NSW DPP – Crown
Thomas Irving - Offender

Representation:

Mr C Reynolds for Crown
Mr J Tate for Offender

File Number(s):

23/140258

Publication restriction:

Statutory non-publication order in relation to the identity of the victim.
Non-publication order in relation to the names of any children.

remarks on sentence

1. These are the sentence proceedings relating to Mr Thomas Irving.

2. The offender, Mr Irving, stood trial in May 2025 on the following eight counts on which the jury found him guilty:

3. Count 1, being an offence under s 66DE(1)(a) of the Crimes Act 1900, being an aggravated form of carrying out a sexual act with a child aged 10 to 16 years, that being an offence which carries a maximum penalty of five years.

4. Count 2, being the same type of offence and carrying the same maximum penalty.

5. Count 3, which is an offence under s 66DB(a) of intentionally sexually touching a child aged between 10 and under 16 years which carries a maximum penalty of 10 years' imprisonment.

6. Count 4, which is an offence of the same type, carrying the same maximum penalty.

7. Count 5, which is an offence under s 66C(2) of the Crimes Act 1900, being an offence of sexual intercourse with a child aged under 14 years, and that offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of nine years is specified for an offence in the middle range of objective seriousness,

8. Count 6, which is an offence under s 66DB(a) of the Crimes Act 1900, being an offence of sexually touching a child under the age of 16 years and that offence carries a maximum penalty of 10 years' imprisonment.

9. Count 7, which is an offence of carrying out a sexual act towards a child under the age of 16 years and above the age of 10 years, which carries a maximum penalty of five years' imprisonment; and

10. Count 8 being an offence of sexual intercourse with a child aged above 10 and under 14 years, that being an offence under s 66C(2) of the Crimes Act 1900 and carrying a maximum penalty of 20 years' imprisonment, and having specified a standard non-parole period for a middle range offence of nine years.

11. The maximum penalties and, where applicable, standard non-parole periods are guideposts in the sentencing exercise to which I have had regard.

FACTS

12. The facts for the offences are to be determined by me and must be consistent with the verdict of the jury. Any matters of aggravation must be proved beyond reasonable doubt while matters in mitigation need only to be established on the balance of probabilities.

13. The Crown has set out in a document a summary of the facts suggested by the evidence in the trial. While the offender maintains his innocence, counsel for the offender accepted that the Crown's document provided an accurate summary of the relevant evidence. Based on that document and my own review of the evidence in the trial generally, I find the following facts.

14. The offender was aged between 44 to 45 years at the time of the offences. The victim was aged 10 to 12 years at the time of the offences. The offender was the victim's stepfather. That was because he married the victim's mother in 2020. The victim's mother had 12 children in total and has two children with the offender, those being two boys who I will refer to as X and Y. At the time of the offences, the offender lived with the mother as well as the victim and nine of the victim's siblings in premises at West Tamworth.

15. The count 1 offence occurred in January or February 2022 when the victim was aged 10. She was outside playing with her siblings. The offender called her into the bedroom which he shared with his wife. Once she entered there, the offender turned her to face him and said, "Are you ready?". When the victim said, "What?", the offender pulled out his penis and started masturbating towards the victim. He eventually ejaculated in front of her, which the victim described as "white stuff...coming out heaps on top and was dripping". The offender then went to the shower and wiped his penis with a towel and laughed. The victim went outside and continued playing with her siblings.

16. That brings me to count 2. A number of days after the count 1 offence, the victim was again outside playing. The offender again called her into the bedroom. When she entered, the offender was charging his phone next to the bed but then he walked around the bed towards her, he took out his penis and masturbated towards her until he ejaculated, after which the offender went to the shower and washed himself.

17. The circumstances of count 3 were as follows. In about January or February 2022 the victim had been reprimanded by the offender, and as punishment she had been told to stand in the corner. Around this time the mother of the victim left to go to the shops and the offender told her not to take the victim because she was in trouble. After the mother left, the offender approached the victim, picked her up and licked her cheek while he held her body against his. The victim gave evidence that this took place for around one minute after which the offender told the victim to clean up some toys.

18. The count 4 offence occurred in about June or July 2022 when the victim was aged 11. Again, she had been playing outside when the offender called her into the lounge room. He then approached her and used his tongue to lick inside her mouth, moving his tongue around inside her mouth. As he did this, he was rubbing the front of his body against the front of the victim's body and stroked her back with his hands. The victim also felt his penis touching her vaginal area through their respective clothing.

19. Count 5 is an offence that occurred also in June or July 2022 when the offender was in the lounge room, and the mother was away from the house. The victim was outside the premises and the offender called her into the bedroom. When she entered the bedroom, the offender took her pants off and put a finger into her vagina. This caused the victim pain and she said, "Ow", and the offender stopped. The victim then put her pants back on and went outside. However, after going outside, she continued to feel some pain.

20. The offences that are the subject of counts 6, 7 and 8 all occurred on the one day and, effectively, as part of a single incident. That incident occurred on 16 March 2023. On that day the victim had stayed at home because she was unwell, having been immunised the previous day. At the time, she was bathing her younger brothers in the bathroom. The offender entered the bathroom and used his hands to face the victim towards him. He then removed her pants and underpants and rubbed her vaginal area with his hand. This is the offence in count 6 of sexual touching.

21. The offender then took his penis from his pants and masturbated it towards the victim until he ejaculated, causing some semen to go onto the victim's leg. This is the circumstances of the offence in count 7, which is one of carry out sexual act towards a child.

22. The offender then put his finger into the victim's vagina and moved it around. This is the offence set out in count 8, which is an aggravated form of sexual intercourse with a child aged under 14 years. The offender told the victim not to tell her mother, and he left the bathroom. The victim was aged about 12 at the time of these events.

23. It was about three days later, 19 March 2023, that the mother of the victim was looking for the victim and was told by the children that the victim was writing in a diary. The mother went into the victim's bedroom and asked the victim where the diary was, and subsequently the mother looked at the diary which contained an entry which said as follows:

"I have a dad that loves me as a child, but I'm not a good girl, he, umm...just...I can't believe I'm saying this right now...okay, I'm ready now, he just wants to have sex with me!"

24. Having read that entry, the mother went to the victim and asked her about it and the victim replied that she had written that entry "cause he's touching me", and pointed towards her vagina. She said, again, "He keeps touching me", and when asked by the mother when this had happened, she said, "All last year. The last time was Thursday or Friday".

25. The mother called police who arrived later, by which time the offender had left the house. Later that afternoon the victim was interviewed by police from the Tamworth Child Abuse Squad and she disclosed matters relating to counts 6, 7 and 8.

26. On 21 March 2023 she commenced a second interview, but she became upset and the interview was terminated. However, the next day, 22 March 2023, the victim took part in a third interview in which she disclosed the offending in the other counts, those being counts 1 through to 5.

27. The offender was arrested on 2 May 2023 and was initially refused bail.

28. Those are, in summary, the relevant facts of the offences.

OBJECTIVE SERIOUSNESS

29. I turn, then, to consider the objective seriousness of the various offences. Firstly, the maximum penalties mark them as offences that ordinarily must be regarded as serious, as sexual offences against children always are. Sexual offences against children are presumed to result in very serious and long-term effects which often remain with the victim for many years, if not their whole lives.

30. In this particular matter, there are a number of common features to all of the offences which affect their objective seriousness.

31. All of the offences involved a gross breach of trust and authority given that the offender was the victim's stepfather. However, I note with respect to counts 1, 2, 5, 7 and 8 that "under authority" is an element of those offences, and so this aggravating feature is already built into the maximum penalty specified for the offence. It is not a matter, therefore, that increases the objective seriousness of those counts. On the other hand, counts 3, 4 and 6 do not include this aspect of "under authority", and so the objective seriousness of those three counts is increased by reason of this aspect of the offending.

32. The Crown submitted that all of the eight offences are aggravated because the offender breached a position of trust. Trust and authority are distinct concepts and in some cases both descriptors may apply, depending upon the circumstances: see Mohindra v R [2020] NSWCCA 340 per Basten JA at para 25.

33. While I accept that each of the offences did involve a breach of trust, in my view, there is a great deal of overlap between trust and authority in the case now before this Court, and I have taken care not to double count those aspects.

34. Each of the offences were committed in the victim's home where she was entitled to feel safe. There is, however, a degree of overlap between this aspect and the fact that the offender was the victim's stepfather, and so I have taken care to avoid any double counting.

35. There was in each case a significant age differential of more than 30 years between the offender and the victim.

36. On the other hand, none of the offences involved threats or coercion or any gratuitous violence beyond that inherent in these types of offences. However, and while the offences would have been made more serious if there had been threats or violence, the absence of these aspects does not reduce the seriousness of the offences. As any informed person would know, it is a common, if not almost invariable fact that children subjected to sexual abuse usually do not fight, do not protest and often do not tell anyone about the abuse, often for years. It is the compliant nature of children, as well as their common belief that they will "get in trouble" even though they have done nothing wrong, which renders them easy targets for predatory sexual conduct such as in this case.

37. As I have said, the above aspects are features that are common to the various offences, subject to the comments I have made about the relevance of trust and authority in relation to counts 1, 2, 5, 7 and 8 on the one hand and counts 3, 4 and 6 on the other. I have taken into account those features that I have described as common in my assessment of the objective seriousness of each offence and I will not repeat these aspects.

38. Turning, then, to the individual counts.

39. Count 1 involved the offender calling the victim into his bedroom and then exposing his penis and masturbating to ejaculation in front of her. The victim at the time was only 10 years old, which places her at the lowest end of the age range contemplated by this type of offence. As already noted, the offence involved not only the exposure of the offender's penis to the victim, but his actions in masturbating in front of her to the point of ejaculation. While the precise duration of the offence is not known, it clearly was not brief. There was no threat or attempt to have the victim do anything other than to be present and watch the offender's actions. I regard the offence as being around the mid-range of objective seriousness.

40. Count 2 was a somewhat similar offence, and was committed only a number of days after count 1. Again, the offender called the victim into the bedroom where he approached her and masturbated to ejaculation. The offence involved the same aspects to which I have made reference when considering count 1. For those same reasons, I regard it as being around the mid-range.

41. Count 3 involved the offender approaching the victim and licking her cheek while holding her against his body. Again, the victim was only 10 years old and, therefore, at the bottom of the age range for this type of offence. Although the licking apparently was brief, the holding of the victim went on for about a minute. The breach of authority was very manifest with this offence given that it took place in the aftermath of the victim being told to "stand in the corner" for some supposed misbehaviour. I accept the Crown's characterisation of this offence as being in the low range of objective seriousness.

42. Count 4 was a somewhat similar offence and involved the offender calling the victim inside the house and then inserting his tongue and moving it around inside the victim's mouth while rubbing his body against the front of her body while stroking her back with his hands. The victim could also feel the offender's penis touching her genital area through their respective clothing. The victim was aged 11 at the time and, therefore, towards the bottom of the relevant age range for this type of offence. As the Crown submitted, the offence was quite invasive by reason of the offender inserting his tongue into the victim's mouth, which was made more invasive by the indirect touching between the genital region of the victim and the offender. In my view, this is an offence that is below the mid-range but not in the low range of objective seriousness.

43. Count 5 involved the offender calling the victim into a bedroom where he removed her pants and penetrated her vagina with a finger, causing the victim pain at which point he stopped. However, the victim continued to experience some pain for a time afterwards. The offence occurred when the victim was 11 and, therefore, towards the bottom of the applicable age range. While the penetration appears to have been fairly brief, it has been said numerous times that even offences of a short duration can have long standing adverse effects: see Kelly v R [2022] NSWCCA 189. I regard this as an offence that is slightly below the mid-range of objective seriousness.

44. Counts 6, 7 and 8 all occurred during a single incident where the offender entered the bathroom where the victim was bathing her younger siblings. At the time the victim was aged 12 and, therefore, towards the lower end of the age range for these three offences. Count 6 is an offence of sexual touching where the offender removed the victim's lower clothing and rubbed the outside of her genital region. It was skin on skin contact. I regard this as an offence slightly below the mid-range.

45. Count 7 involved the offender masturbating himself to ejaculation in very close proximity to the victim, given that some of the ejaculate went onto her leg. I have, however, as agreed, not taken this aspect into account given the possibility that this might amount to a more serious offence. When I say I have not taken this aspect into account, I am, of course, referring to the fact that the ejaculate landed on the victim's leg. In my view, count 7 is an offence that sits around the mid-range.

46. Count 8 involved the final sexual act in this incident where the offender penetrated the victim's vagina with his finger. It is an offence that sits slightly below the mid-range.

SUBJECTIVE MATTERS

47. Turning then to subjective factors. The offender is now aged 47. His criminal history does not include any previous sexual offences, but it does include numerous offences for violence, breaking entering and stealing, dishonesty and drugs. Furthermore, the offender has previously served full time terms of imprisonment and, indeed, he is currently serving one. None of this assists him in any claims to leniency.

48. The psychological report of Katie Martens sets out some of the offender's personal circumstances and history. He was raised in Western Sydney by his mother. His father had been in and out of his life and would become violent when intoxicated. His mother re partnered on three occasions and the offender recalled being the victim of physical abuse and violence at the hands of two of these men. The offender moved out of the home during adolescence to avoid abuse by his mother's then partner. However, he later moved back in when the mother entered a new relationship with a man who was not abusive and the offender ultimately formed a good relationship with this man.

49. The offender left school in year 9 and worked as a cleaner and then for about three years as a landscaper. He has, however, largely been unemployed since about age 18. The offender told the psychologist that in about 2015 he was diagnosed with schizophrenia and was prescribed psychotropic medication. He told the psychologist that this diagnosis was made after he "did a questionnaire". The psychologist noted that when the offender was asked about experiencing hallucinations, he became "very wide eyed", and referred to having seen several "shadow people" who he believes work for the government or for a "stronger force". The psychologist noted further, however, that it was difficult to discern whether Mr Irving held delusional beliefs. It was noted that the offender denied any history of in patient mental health admission.

50. The offender's claim to having been diagnosed with schizophrenia was the subject of challenge and testing by the Crown in cross examination, and the sentence proceedings, which commenced on 26 June 2025, were adjourned to provide the offender with the opportunity to obtain any records which might corroborate any diagnosis. The Court has now received evidence in the form of letters dated May, June and July 2019, prepared by Consultant Psychiatrist, Dr Ishmael. Those documents indicate that after reviewing the offender in 2019, the psychiatrist's impression was that the offender had delusional disorder with antisocial personality traits with ideas of reference and anger management issues. A differential diagnosis of paranoid schizophrenia was noted and olanzapine was prescribed.

47. Also before the Court is a letter dated 8 July 2025 from the Marrin Weejali Aboriginal Corporation, which confirms the offender's involvement with that organisation from 2019 and notes that he was referred to Dr Ishmael in 2019 and prescribed olanzapine and later risperidone.

48. The Crown has submitted that even with this additional evidence, which was admitted into the proceedings today, the Court would not be satisfied on the balance of probabilities that the offender suffers from schizophrenia. The Crown makes a number of submissions in support of this position. Firstly, that the letters from Dr Ishmael state that they are clinical and not medico legal letters. I do not regard this, however, as a matter that significantly diminishes the probative value of the letters, given that they each state that the letters are "intended for the GP regarding diagnostic and management issues". Secondly, the Crown submits that the letters do not establish a conclusive diagnosis of schizophrenia but record only "an impression" and a "DD", which I assume stands for "differential diagnosis", of paranoid schizophrenia.

49. There is some merit in this submission by the Crown, in that the documentation does not express a clear diagnosis of schizophrenia. Furthermore, the offender said in evidence on 26 June 2025 that he had not seen a psychiatrist since 2017, which I assume to be a mistake, and should be 2019. However, it seems to me unlikely that this would be the situation if, indeed, he had been given a clear diagnosis of schizophrenia. I note also that, according to Ms Martens, at para 27 of her report, the offender "denied any history of in patient mental health admission". This, to my mind, would also seem unlikely if the offender had an established diagnosis of paranoid schizophrenia.

50. The Crown also submitted that there is no clear evidence of investigations being conducted to exclude the possibility that the offender's delusions might have been drug related. I accept that there is some merit in these various submissions by the Crown, including the last one to which I have just made reference.

51. I accept that the evidence as to any mental health diagnosis relating to the offender is not entirely clear. In my view, the evidence is not sufficient for me to be satisfied that the offender was suffering from schizophrenia or any other specific mental health illness at the time of offending or currently. However, in my view, the material before the Court is sufficient for me to be satisfied that the offender has a fairly longstanding history of significant mental health problems, which have impacted on his life in various ways. I base this conclusion on the combination of the evidence of the offender's own self report, the 2019 letters of Dr Ishmael, the observations of Ms Martens about hallucinations reported by the offender, and the unchallenged evidence that the offender has been on a Disability Support Pension since about 2019.

52. The psychologist, Ms Martens, suggests at para 44 of her report that:

"It is likely Mr Irving's own traumatic experiences, mental health concerns, limited interpersonal relationships and lack of involvement in the community more generally contributed to his behaviour."

57. In making reference to “his behaviour”, I assume that the psychologist is referring to his behaviour involving the offences before the Court.

58. While I do not accept that there was any direct causal link between the offender's mental health concerns and the offending, case law establishes that it is not necessary for there to be a direct causal link before mental health issues can be taken into account in assessing moral culpability and in determining the weight to be given to general and personal deterrence. As was stated in Muldrock v R (2011) 244 CLR 120 at para 52:

"The question for consideration is not whether there was a 'causal link' between the mental health condition and the offending, but whether the mental health condition contributed to the commission of the offence in a material way."

59. See also DB v R [2023] NSWCCA 323.

60. In relation to the relevance of and weight to be given to general and personal deterrence, the cases make it clear that no causal link or finding of material contribution is required: see Stobinski v R [2025] NSWCCA 97 per Hamill J at para 44.

61. In my view, the offender's mental health issues are such that they diminished his ability to make reasoned judgments, and to control his impulses. I regard this as reducing his moral culpability to some degree.

62. I also accept that the offender's mental health problems should operate to reduce the weight to be given to general deterrence and personal deterrence. Although the weight to be given to these important sentencing considerations is reduced, they both remain of relevance however, and particularly, personal deterrence. That is because the offender clearly understands that engaging in sexual activity with a child is wrong. This is demonstrated by his comments to the psychologist that "adults who engaged in sexual harm toward children are putrid" and are not "wired properly". In my view, his offences therefore clearly involved a choice, and this, combined with his risk of reoffending confirms the need for the sentence that I will impose to include some component of personal deterrence and general deterrence.

63. The offender also told the psychologist that he was sexually abused in his early years of primary school by the school deputy governor and that as a result of this, he became disengaged with schooling and was often involved in physical altercations. The Crown also took issue with respect to this claim by the offender, and the proceedings on 26 June 2025 were adjourned partly also to give the offender an opportunity to place before the Court any further evidence relevant to this topic.

64. The suggestion that the offender might have experienced sexual abuse as a child appears to have arisen from his self-report to the psychologist Ms Martens in her interview with him on 6 June 2025. The offender gave evidence on the first day of the sentence hearing, which included some evidence about this claim of having been sexually abused.

65. He said that he told Ms Martens the truth, and, when asked by his own counsel why he had not previously disclosed the abuse, he said that he is currently, "Going through the processes of it", and is seeking legal assistance.

66. In cross examination, he said that Ms Martens was not the first person to whom he had disclosed the abuse, and that he had told a lawyer about eight to nine months earlier. When asked for the name of the lawyer, he could not provide a name. When asked how he came into contact with the lawyer, he said that when he was being held at Nowra, "basically, I got a letter", which indicated that the lawyer wanted to talk to him, and that subsequently, they spoke by a video call, and that later he was sent some paperwork that he filled out.

67. When asked when it was that he had this contact with the lawyer and whether it was this year, last year or the year before, he said that he was, "not quite sure", but that it was, "after 2017". When asked about the current state of any legal action by the lawyer, he said that, "I think we're at the stage of, like, getting doctors and psychiatrists". When the sentence hearing resumed today, no further evidence was placed before the Court about the offender's claim of having been sexually abused.

68. Given the rather vague and unsatisfactory evidence of the offender on the topic, given that there is no mention of child sexual abuse in any of the other materials placed before the Court, and that no evidence has been placed before the Court to support the offender's claim that some form of legal action is underway, I am not able to be satisfied on the balance of probabilities about his claim of having been sexually abused as a child.

69. Having said that, I nonetheless still accept that the offender's upbringing as a child and adolescent was marred by his exposure to parental separation, alcohol abuse, and violence at the hands of his mother's partners. I accept that this history invokes the principles discussed by the High Court of Australia in Bugmy v R [2013] HCA 37.

70. I also accept, as I have earlier set out, that the offender has mental health problems which are reasonably long standing. As I have already found, this history operates to reduce the offender's moral culpability to some degree: see DPP (Cth) v De La Rosa [2010] NSWCCA 194.

71. Furthermore, it seems to me that the offender’s disturbed upbringing, to which I have made a reference, is a matter which further reduces his moral culpability. These subjective aspects of the offender's background and functioning rendered him less able to make reasoned and sensible decisions and to resist urges which contributed to the commission of the offences before the Court. These matters reduce the importance of general deterrence, and to some extent, personal deterrence, although both of these considerations, and particularly personal deterrence, remain relevant for reasons that I have set out earlier.

72. On the other hand, the fact that offender does have this compromised ability to control his impulses and make responsible decisions is, in my view, a matter that increases his risk to the community. I have therefore balanced the importance of community protection against my findings with respect to the offender's reduced moral culpability and the reduced importance of general deterrence and personal deterrence.

REMORSE

73. Turning to questions of remorse, the offender maintains his innocence, and so, in practical terms, there is no remorse in this case. I have, however, given the offender the benefit of the fact that in his defence of the allegations at trial, he facilitated to some extent the course of justice by agreeing about certain facts and thus avoiding the need for certain witnesses to be called.

RISK AND REHABILITATION

74. I have also given consideration to the offender's future risk and his prospects of rehabilitation. The Sentencing Assessment Report notes that the offender blames the victim's mother for, "setting him up". The report notes that the offender appeared to demonstrate a level of insight by reason that his comment that the victim would be, "scarred from this", although nonetheless, he continued to deny the offences.

75. The Sentencing Assessment Report notes that the LSI-R assessment tool suggests that the offender is a medium to high risk of reoffending. The psychologist, Ms Martens, however, assessed the offender's risk of reoffending based on the Static 99R and RSVP2 assessment tools as being "average" relative to other offenders. The psychologist also noted the offender's lack of insight into the offending, his major mental illness, his history of problems with employment and the fact that he avoids contact with other people.

76. Having taken these various assessments into account, along with all of the other material, I am of view that the offender remains a material risk of reoffending. I think his prospects of rehabilitation are guarded or uncertain.

DETERMINATION

77. Turning to my ultimate determination. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I will not recite each of those factors. It seems to me that they are all of relevance, subject to what I have said about the reduced importance of general deterrence and personal deterrence, which as I have also said nonetheless remain relevant.

78. I am satisfied for the purposes of s 5 of that same Act, that no penalty other than imprisonment is appropriate for each of the eight offences.

79. Given that I am imposing sentence for eight offences, I have given close consideration to totality principles and to the question of to what extent there should be any notional accumulation. It is necessary to have regard to the fact that the eight offences were committed over the course of six separate incidents over a period of slightly more than 12 months.

80. In my view, there does need to be some notional accumulation involved in the aggregate sentence that I will be imposing, so as to acknowledge the separate incidents of criminality. However, in relation to counts 6, 7 and 8, which all occurred in the course of one incident, I accept that there should be only limited accumulation among these three counts.

81. I also have regard to totality principles in determining the date on which the sentence should commence. In this regard, I note the following. The offender was arrested on 2 May 2023 for the offences now before the Court and was initially refused bail. He was, however, released to bail on 11 October 2023, but his bail was revoked on 18 December 2023, and he has remained in custody since then.

82. The reason the offender's bail was revoked on that date was because of his arrest for offences of assault occasioning actual bodily harm, and break, enter and steal that he committed on 17 December 2023. Those two offences, together with another break, enter and steal offence, committed in early November 2023, which was taken into account on a form 1 document, resulted in the offender receiving a head sentence of three years with a non-parole period of two years to date from 13 April 2024. The offender is currently still serving the non-parole period of that sentence.

83. In addition, he was, on 24 June 2024, sentenced for two offences of break, enter and steal, committed on 17 April 2023, to a fixed term of five months to date from 24 June 2024, and that term expired on 23 November 2024.

84. The offender's period in custody since 2 May 2023 therefore has not been due solely to the matters now before this Court. I note that in relation to the sentence that the offender is currently serving, that he will not be eligible for release to parole until 12 April 2026.

85. I have a discretion to exercise in relation to the extent of any backdating of the sentence that I am to impose. It is agreed that the period of custody bail refused that is referable solely to the matters now before the Court is the period from 2 May to 11 October 2023, together with the period from 18 December 2023 until 12 April 2024. It is agreed that these two periods involve, respectively, 163 days and 117 days with a combined total of 280 days. I intend to give the offender the benefit of these 280 days backdated from today such that the sentence will commence on 1 November 2024. In so doing, I have again had regard to totality considerations and the period that the offender will spend in full time custody without eligibility for parole when the non-parole period of his current sentence and the non-parole period that I will impose are combined.

86. The commencement date that I have selected will have the effect that a considerable amount of the offender's existing non-parole period will be served concurrently with the non-parole period that I will impose. This involves an element of leniency, given the different offending involved. However, in my view, this is appropriate so as to avoid a sentence and especially a non-parole period that might be said to be crushing.

87. I have made a finding of special circumstances for reducing the ratio between head sentence and non-parole period. I made that finding on the basis of three matters:

1. The offender's risk of institutionalisation;

2. The need for a reasonably lengthy period of supervision on parole; and

3. By reason of his mental health issues which I accept will have made and will continue to make his experience of custody more difficult.

88. I intend to impose an aggregate sentence. It is necessary, therefore, that I set out the indicative sentences that would otherwise have been imposed.

89. The indicative sentences are as follows:

90. For count 1, a head sentence of two years;

91. For count 2, a head sentence of two years;

92. For count 3, a head sentence of eight months;

93. For count 4, a head sentence of 12 months;

94. For count 5, a head sentence of three years, six months, and I specify a non-parole period of two years, four months;

95. For count 6, a head sentence of two years, three months;

96. For count 7, a head sentence of two years;

97. For count 8, a head sentence of three years, six months, with a non-parole period of two years, four months.

98. The offender is convicted.

99. I impose a head sentence of six years' imprisonment.

100. I set a non-parole period of four years. Those will date from 1 November 2024. The head sentence, therefore, will expire on 30 October 2030. The non-parole period will expire on 30 October 2028.

101. Ms Crown, Mr Tate, anything to raise?

102. TATE: No, your Honour.

103. BANKS: No, nothing from the Crown, your Honour.

104. HIS HONOUR: Mr Tate, you will explain that sentence to your client if it needs explaining.

105. TATE: Yes, your Honour. I'll call him now.

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Decision last updated: 01 October 2025