R v JA

[2019] NSWDC 314

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v JA [2019] NSWDC 314
Hearing dates:	7 December 2018
Date of orders:	01 February 2019
Decision date:	01 February 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [87]-[91]
Catchwords:	CRIMINAL LAW – sentencing – 3 convictions – one following a jury trial – 2 following guilty plea – historical child sex abuse
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth)
Cases Cited:	Barbaro v R; Zirilli v R (2014) 253 CLR 58 Conte v R [2018] NSWCCA 209 Jonson v R (2016) 263 A Crim R 268 Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92 R v AA [2017] NSWCCA 84 R v AJP (2004) 150 A Crim R 575 R v Lulham (2016) 263 A Crim R 287 The Queen v Pham (2015) 256 CLR 550
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) JA (Offender)
Representation:	Counsel: Ms E Nicholson (Crown) Ms R Court (Offender)   Solicitors: ODPP (Crown) Panwar Legal (Offender)
File Number(s):	2016/154764
Publication restriction:	Non-Publication Order with regards to the name of the complainant, the Offender and the Offender's family

Introduction

1. The Offender appears before the Court today for sentencing after pleading guilty to two charges on the Crown Sentence Summary (Exhibit A), and also in relation to a matter which is the subject of jury deliberation and a finding of guilt, which presented itself on indictment.

2. In sentencing the Court has regard to the guideposts of maximum penalties and the standard non‑parole periods if such exists. The maximum penalty is the parliament’s assessment of the seriousness of the offending. The standard non-parole period is to be applied unless circumstances justify a departure from it.

3. The offences for which this Offender is to be sentenced and the applicable guideposts are as follows:

1. charge number ending 733 and being sequence 4 that is sexual intercourse with a child under 10 years, in breach of s66A of the Crimes Act. At the time of the commission of the offence had a maximum penalty of 20 years imprisonment and no standard non‑parole period. I note that the offence now carries a maximum sentence of life imprisonment and this is the offence for which the Offender was found guilty after pleading not guilty at trial;

2. charge number ending 733 and is sequence 5 being using a carriage service to menace, harass or offend in breach of s474.17(1) of the Criminal Code which has a maximum penalty of three years imprisonment with no standard non‑parole period; and

3. the further offence for which the Offender is to be sentenced has the same charge number as the other two offences but relates to sequence 2 in respect of that charge, namely being possess child abuse material in breach of s91H of the Crimes Act which has a maximum penalty of ten years imprisonment without a standard non‑parole period.

4. The Offender was born in 1975 and is now 43 years of age. The offending that is the subject of the matter that went before the jury occurred between 30 April 1989 and 31 January 1990 when the Offender was 14 years of age. The use of carriage service offence was committed on 30 October 2014 and the possess child abuse material offending occurred on 8 January 2016.

5. The Offender was arrested and charged on 19 May 2016. On 20 December 2016, the Offender was committed for trial in the District Court. On 20 August 201,8 the Offender was found guilty of the sexual intercourse with a child offence and had at that stage pleaded guilty to two other offences. Those pleas came at a relatively late stage of proceedings, but will nevertheless be taken into account in determining any discount for the value of a guilty plea.

6. The Offender has been in custody for these offence from 19 May 2016 to 15 June 2016 and then since 20 August 2018 when the guilty verdict was delivered by the jury. The sentence having regard to those prior periods in custody will be backdated to commence on 25 July 2018.

7. The evidence on sentence for the Crown comprised the following material:

1. the Crown Bundle (Exhibit A);

2. the Agreed Summary of the complainant’s evidence (MFI 1); and

3. the Crown’s Submissions on Sentence (MFI 2).

8. The Offender relied upon the following material:

1. a report by Anita Duffy, psychologist dated 25 October 2018 (Exhibit 1); and

2. the Offender’s Submission on Sentence (MFI 3).

Agreed Facts

Sexual intercourse with a child under 10 years of age

9. The following is an agreed summary of the complainant’s evidence, taken from the complainant’s evidence in chief in the trial in regards the charge of sexual intercourse with a child under the age of ten years. I find that the facts as agreed are an accurate reflection of the evidence at trial and accord with the jury’s verdict. Those facts are:

1. the Offender was the older brother of the victim;

2. the incident occurred about a month prior to the separation of the parents of the Offender and the complainant;

3. the complainant was nine years old at the time and the Offender was 14 years old;

4. the complainant was in her bedroom alone playing when the Offender walked in;

5. the Offender looked at her strangely and picked her up and threw her onto the end of her bed;

6. the Offender ripped the complainant’s underwear off and got on top of her;

7. the Offender took his own pants down and showed the complainant his penis;

8. the Offender got on top of her and started to ram his penis near the complainant’s vagina;

9. the Offender’s penis was erect and the complainant could feel it digging down on her vagina;

10. the Offender rammed his penis in about an inch or so into the complainant’s vagina;

11. the complainant was in pain and let out a yelp or ouch noise;

12. the Offender got off the complainant and ran to the bedroom;

13. the complainant continued lying on the bed for a couple of minutes wondering what had happened and then got up and put her pants back on;

14. the complainant told her mother about the incident, after she, her mother and her sister had left the family home about five weeks later; and

15. this was not an isolated incident and there had been some other earlier incidents of uncharged sexual conduct by the Offender towards the complainant.

Use carriage service to menace, harass and offend

10. With regards to the use carriage service to menace, harass, and offend (being the same complainant as for the sexual intercourse offence), the following facts are agreed.

11. On 29 October 2014, the Offender contacted the complainant via the Facebook Messenger application. The following exchange took place at 2.25pm:

Offender: “Hey what’s happening sis?”

The complainant: “Not much bro, I’ll ring a quickly bro”.

Offender: “Okay have to change SIM cards.”

Complainant: “Okay, let me know when you do”.

Offender: “Just done it”.

Complainant: “Cool”.

12. On 30 October 2014, the Offender again contacted the complainant via Facebook Messenger. At 12.26pm the following exchange took place:

Offender: “My other number sis, don’t tell no one 04********”.

Complainant: “Okay I won’t bro”.

13. At 1.43pm, the Offender replied, “Okay cool”. At 1.59pm the Offender sent a further message which red, “Rah”, and the victim responded “Rah back”. At 3.20pm the Offender sent a photograph to the complaint depicting the actor Morgan Freeman, followed by a message which read, “Fuck that was meant for [HA]”. At 4.58pm the complainant replied, “Lol”. The following exchange then took place:

Offender: “Mm, Amanda and me aren’t friends no more”.

Complainant: “Yeah cause you sent her a rude pic lol”.

Offender: “No wasn’t rude, she just a lesso, ha, ha, ha, she wouldn’t know what to do with it”.

Complainant: “Yeah cause it’s real meat”.

14. The Offender sent two colour photographs of a penis to the complainant, together with the messages, “Just a lesso and that’s not rubber”. The complainant did not respond.

15. At 5.54pm the Offender sent a further colour photograph to the complainant depicting an erect penis being held by a male wearing a blue jumper. The complainant recognised the male in the photograph as the Offender, due to a tattoo visible on the left arm. The Offender send a further message which read, “She just a lesso”. He then sent a final message saying, “Going off line now, give us a ring if you want”.

16. The complainant found the messages disgusting and did not respond to the latter messages. She had no further contact with the Offender.

Possess child abuse material

17. Following are the agreed facts with regards to the possess child abuse material offence.

18. In January 2016, the Offender was residing with his father SA in Halekulani. As a result of information received from the Australian Federal Police, New South Wales Police attended the premises on 8 January 2016. They were granted entry to the premises by SA and both the Offender and his father were cautioned.

19. Police conducted a check of the browser history of SA’s personal laptop with his consent which revealed nothing of interest. At the request of police, the Offender brought his laptop computer into the dining room. The Offender confirmed he had a Facebook account and was the only user of that account. He also told police that he was the only user of his laptop computer.

20. The Offender agreed to police reviewing his internet browsing history and favourites and opened his internet browser for that purpose. Police observed a number of websites including websites mentioning young children. Police formed a view that some of the websites contained child abuse material and seized the laptop. The Offender provided police with a password to the computer. Police then conveyed the laptop computer to Wyong Police Station and entered it into police exhibits database.

21. On 12 April 2016 the Offender’s laptop computer was examined by the State Electronic Branch of the New South Wales. From a sample of 11,402 images on the computer, 51 images were identified as child abuse material. Of these 51 images, 13 images depicted material at CTS level 1, one image depicted material at level 2, 16 images depicted material at level 3 and 21 images depicted material at level 4. All of these images were located in a folder H/harddriveD/users/[JA] pictures.

22. The relevant description of each CDTS level is:

1. level 1, no sexual activity depicting nudity, surreptitious images showing underwear, nakedness, erotic posing, explicit emphasis on genital areas;

2. level 2, sexual activity between children or solo masturbation by a child;

3. level 3, non-penetrative sexual activity between children and adults;

4. level 4, penetrative sexual activity between children and adults;

5. level 5, sadism, bestiality or any form of child abuse; and

6. level 6, animated cartoons or drawings depicting children engaged in sexual places or activity.

23. From a sample of 558 video files on the computer one video was identified as child abuse material. This video depicted an adult male and a young female under 16 years of age having penile vaginal sexual intercourse, after which the adult male ejaculates in the child’s face. The video is classified as CDTS level 4. Also located on the laptop in the folders documents and pictures were a scanned image of the Offender’s New South Wales driver’s licence, documentation in the Offender’s name and images depicting a male’s naked genital region and erect penis, some of which were the same images that had been sent to the complainant in the Facebook messages.

Complaints and Investigation

24. On 12 April 2016, Senior Constable Keith Ross spoke with the complainant by telephone. The complainant told Senior Constable Ross that she wanted to report a number of offensive photographs the Offender had sent to her via the Facebook messenger application.

25. On 9 May 2016 Senior Constables Ross and Reynolds travelled to Queensland and obtained a statement from the victim at Caboolture Police Station. At this time the complainant showed Senior Constable Ross the images sent to her by the Offender on Facebook messenger. Senior Constable Ross obtained screen shots of those images from the complainant’s mobile phone.

26. On 19 May 2016 the Offender was arrested in relation to these matters. He was conveyed to Wyong Police Station where he participated in a recorded interview with police. During the interview the Offender confirmed that he owned the Toshiba laptop computer seized by police on 8 January 2016. He stated that his Facebook user name was Jason Paul Alder and he was the only person who used this Facebook account.

27. Initially the Offender denied accessing any child abuse material on the laptop computer. He then went on to tell police that he was forced to download child pornography by a male known as Joel who he had met in March 2012 while walking his dog. The Offender claimed that he had provided the images to Joel under threat of his father’s life. In relation to the messages and images sent to the complainant via Facebook Messenger on 20 October 2014, the Offender admitted that he had sent the images. He said, however, that he sent the images to the wrong person and that they were not meant for the complainant. He admitted to being the male depicted in the images. He stated that the complainant was aware those images had been sent to her by mistake. The Offender told the police he had meant to send them to a female by the name of Amanda. The Offender denied sending any messages or captions to the images, particularly the message which read, “I’ll shave them next week sis”. Following the ERISP interview the Offender was charged with these offences.

Elements of Offences

28. The elements of the offences are as follows:

29. In relation to the sexual intercourse offence it includes:

1. a sexual connection occasioned by the penetration to any extent of the genitalia including any surgically constructed vagina of a female or the anus of any person by:

1. any part of the body of another person; or

2. any objects manipulated by another person except where the penetration is carried out for medical purposes; or

2. a sexual connection occasioned by the introduction of any of the penis of the person into the mouth of another person. There are other aspects of the definition which do not bear relevance to the facts as they exist here.

30. By the finding of guilt on the part of the jury they accepted that sexual connection was occasioned by way of penile/vaginal penetration performed by the Offender on his sister, who at that stage was under the age of ten years.

31. The elements relating to the use of a carriage service to which the Offender has pleaded guilty include using a carriage service and doing so in a way that reasonable persons would regard it as being menacing, harassing and offensive. Again by the admission of guilt in respect to that matter the Offender has accepted that he has satisfied those elements.

32. In relation to the third offence of possess child abuse material, the elements comprise:

1. possession of a computer or data storage device, holding or containing the data or of a document in which the data is recorded; and

2. control of data held in the computer that is in the possession of another person.

33. Again, by his guilty plea the Offender has admitted the elements of that offence.

Objective Seriousness

34. A predominant factor relevant to the sentence is the objective seriousness of the offence or offences. It is not however necessary to articulate a determination by placing the offences along a hypothetical range although this is commonly done.

35. It remains an essential task to undertake an evaluative assessment of the objective seriousness of the offences. The starting point of course is the legislative guideposts to which I have already referred, one has regard to the particular circumstances of the offending and assessment the overall criminality.

36. In respect of the offence of sexual intercourse with a child under the age of 10, specific guidance on the factors relevant to assessing the objective seriousness under s66A, it was provided by the Court of Criminal Appeal in the matter of R v AJP (2004) 150 A Crim R 575 at [25]. Those factors include the following:

1. the age of the child, in this instance the child was nine years of age;

2. the nature of the sexual intercourse, in this case penile/vaginal sexual intercourse;

3. how the offence occurred. In this case the Offender walking into the complainant’s bedroom;

4. over what time period it occurred. The evidence of the complainant suggests that it was a relatively brief period of time;

5. with what degree of force or coercion was involved. The evidence of the complainant was that the Offender ripped the complainant’s underwear off before forcing her onto the bed and forcing his penis in her vagina;

6. the use of threats or pressure. In this case there were no threats other than the physical force used in the offending; and

7. any immediate apparent effect on the victim. I note evidence was given of immediate pain that the complainant suffered upon the offending occurring.

37. In the matter of R v AA [2017] NSWCCA 84, it was held that the age of the Offender in that case being a teenager was relevant because it was such that he had not assumed responsibility for the care of the complainant and that in this instance it could be distinguished between the Offender and an adult.

38. In relation to the charge of using a carriage service to harass, menace or offence, I have already referred to the elements involved in that offence. I am also assisted by the comments of the High Court in the matter of Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92, where it was stated in relation to the use of the word “offensive”:

“In its application to the content of communications delivered, using postal or similar services the prohibition applies to communicates, the content of which reasonable persons could regard as being in all the circumstances offensive whether or not anyone was actually offended by it”.

39. With regards to the Commonwealth offence, s16A(2) of the Crimes Act 1914 (Cth) provides a non‑exhaustive list of facts both objective and subjective which are to be taken into account by the sentencing Court. The subjective circumstances are similar to those to be taken into account when sentencing for State offences. Relevant objective factors that exist here including the nature and circumstances of the offence and the personal circumstances of the victim.

40. In relation to the charge of possess child abuse material the following factors are relevant to the assessment of the objective seriousness of the offence:

1. whether actual children were used in the creation of the material;

2. the nature and the content of the material including the age of the children and the gravity of sexual activity portrayed;

3. the extent of any cruelty or physical harm occasioned to the children that is discernible from the material;

4. the number of images or items;

5. the Offender’s purpose;

6. whether any payment was made for the acquisition of the material;

7. the proximity of the Offender’s activities to those responsible for bringing the material into existence;

8. the degree of planning organisational sophistication employed by the Offender and acquiring or storing of material;

9. whether the Offender acted alone or in a collaborative network of like‑minded persons;

10. any risk of the material being seen or acquired by vulnerable persons; and

11. any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

41. In respect of some of those matters there is no evidence and I will not speculate as to such matters. I note that in the course of the sentence hearing, which was conducted on 7 December 2018 in Parramatta, the Offender did not give evidence, so as to explain or otherwise mitigate his offending.

42. I have taken into account in determining the objective seriousness, the victim impact statement of the complainant who stated that she did not know how to act in response to her brother’s offending behaviour so she started to act out. This resulted in violent behaviour both towards others and herself. She has described a life filled with domestic violence and abuse and is now starting to recover from the trauma she experienced following the offending.

41. The Crown submitted that with regards to the sexual contact offence, that it was only a momentary event and that the objective seriousness is below the mid-range. In regard to the use carriage service offence it was submitted by the Crown that the offence is also below the mid-range. With regards to the possess child abuse material a similar submission was made by the Crown based on the number of images and the lack of concealment of the images by the Offender on his computer.

42. It was submitted on behalf of the Offender that the sexual contact offence before the jury fell below the mid-range based on the fact that the Offender was a juvenile himself, aged approximately 14, the small age disparity between the two, namely five years, the absence of a position of trust and the short duration of the penetration which occurred. With regard to the use of the carriage service offence, it was submitted on behalf of the Offender that the offence was at the low range of objective seriousness based on the number of images sent and the short duration over which the incident occurred. A similar submission was made in relation to the third offence concerning the child abuse material.

43. In my opinion the circumstances which exist here demonstrate the following:

1. for the offence of sexual intercourse with a person under the age of 10 the objective gravity falls below the mid-range;

2. for the offence of use carriage service to menace harass, offend, the objective gravity falls within the low range; and

3. for the offence of possess child abuse material the objective gravity falls below the mid-range.

Subjective Case

46. The following material relates to the subjective case presented on behalf of the Offender. The Sentencing Assessment Report was not available on the last occasion, although it has come to my attention in the time since. The report reads similarly for the report of Ms Duffy which is detailed below.

47. I have regard to the report by Anita Duffy who visited the Offender at the Silverwater MRRC on 15 October 2018. The Offender grew up with his family in Minto until 1987 before they moved to Gorokan on the Central Coast, followed by Charmhaven. He is the eldest of three siblings with two younger sisters, one that is aged 42 at Caboolture Queensland who is single with four children and one that is aged 38 also in Queensland who is the complainant in these proceedings.

48. The Offender reported no contact with either sister since being charged with the subject offences. The Offender reported good relationships with both parents during his childhood. He noticed that his parents argued a lot but he was too young to realise what was happening. His parents separated when he was 14 years old, with his sisters living with their mother and the Offender remaining in the care of his father. The Offender’s father was a butcher and the Offender worked with his father after he left school and enjoyed a good relationship with him.

49. His mother re-married and moved to Queensland. The Offender moved between his father’s place on the Central Coast and his mother and sisters’ homes in Queensland. The Offender has had several significant relationships with women who were generally older than himself. He met his current partner [K] in November 2017 and she has remained supportive of him, visiting him and speaking to him on the phone regularly. The Offender’s father has also been very positive towards him, but he has not spoken to his mother since he was in his later twenties.

50. The Offender reported an unremarkable upbringing in terms of education. As stated, he left school at year 10 going to work with his father in the butcher shop. In the following years the Offender has been employed in various capacities working in the timber industry, operating a saw machine working a chicken processing factory, working as a furniture removalist, working at a pizza shop, working at a fruit pulping company and working for an artist paint manufacturer.

51. The Offender outlined to Ms Duffy a number of physical ailments which have caused him pain including scoliosis, Schuman’s disease, fibromyalgia and rheumatoid arthritis. Additionally he has had digestive problems for a number of years.

52. The Offender described to the psychologist severe psychological problems, including depression, which he suffered after his guilty verdict and imprisonment. The Offender was placed in an observation cell when he first arrived at prison, he was also prescribed anti-depressant medication. He denied any suicidal ideation but remains vigilant to threat.

53. The Offender reported drinking alcohol from the age of 18 consuming beer, wine and spirits. He did not describe his alcohol intake as being problematic. The Offender reported being shy about sex when he was young. He has had a number of partners as I have already stated, a number of whom were older than him. These relationships ended for a variety of reasons.

54. The Offender has continued to assert his innocence in relation to the sexual intercourse charge. When he was informed about the Deniers Program available to inmates he expressed interest in attending such a course. With regard to the child abuse material offence, the Offender reported being threatened by a man named Joel who had threatened his father’s life.

55. In respect of the subjective material, there is no evidence which would support a finding that the Offender was affected by any psychiatric condition or any addiction at the time of the subject offending in any of the three cases relating to the offences.

Aggravating and Mitigating Factors

56. The Court may also have regard to any aggravating or mitigating circumstance particular to the Offender and the offending, the former to be proven beyond reasonable doubt and the latter on the balance of probabilities. The Crown submitted that a relevant aggravating factor with regards to the historical offence is that the offence was committed in the home of the victim.

57. A bench of five in the matter of Jonsonv R (2016) 263 A Crim R 268 held that previous decisions which stated that this aggravating factor which was restricted to cases where the Offender was an intruder were plainly wrong and should be overruled. In the circumstances which exist here the Offender and the complainant resided in the same premises at the time of the offending, rendering that consideration not an aggravating factor.

58. I note the authorities in relation to that point are mixed and that in the matter of R v Lulham (2016) 263 A Crim R 287 at [25], the Court of Criminal Appeal held that the sentencing judge was correct to find the offence was aggravated on account of the fact the victim was attacked in his own house despite the fact that the Offender was not an intruder.

59. The reasoning underlying such a finding of aggravation is that an offence committed in the home of the victim involves the violation of the victim’s reasonable expectation of safety and security, in his or her home. I note the comments of the Court in [5] in the judgment of Lulham. This reasoning seems to apply mostly to break and enter type offences and I therefore do not find this statutory aggravating factor proven.

60. The mitigating factors which are relevant and exist for the later offences, include the Offender’s plea of guilty albeit late.

Remorse

61. Evidence of contrition or remorse in respect of the subject offending is also a relevant sentencing consideration. Such evidence must be assessed in context.

62. In relation to the historical offence of sexual intercourse with a child under the age of ten I decline to make any finding of remorse as the Offender at no stage has admitted guilty or demonstrated any remorse in respect of that offending.

63. With regards to the use of the carriage service and possess child abuse material offences the Offender’s explanations were not remorseful, stating that he had sent the pictures to the wrong person and that he was acting under duress with regard to the child abuse material. In respect to the latter, I reject any suggestion that the Offender was under duress. I, therefore, decline to find that the Offender is remorseful for any of the offences for which he is to be sentenced.

Good Character

64. The Offender’s character is also relevant. The good character of an Offender is a matter that may be taken into account in mitigation of penalty. It is one of a number of matters the Court must consider the nature and circumstances of the offence is of the utmost importance. A finding of good character might be made for the historical offence, but not the later offences.

Risk of Re-Offending

65. In terms of the risk of re-offending I note that Ms Duffy undertook a risk assessment based on an actuarial measure of relative risk for sexual offence recidivism, based on commonly available demographic and criminal history information. The Offender’s total score was zero taking into account his age and the number of non-sexual offences. Ms Duffy placed the Offender’s risk of re-offending in the below average range. I accept that opinion and find accordingly.

Approach to Sentencing

General Principles

66. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purpose for which a Court may impose a sentence on an Offender. They comprise the following:

1. punishment, that is to ensure adequate punishment;

2. deterrence, that is to prevent crime by deterring the Offender or other persons from committing similar offences. Given the finding that the risk of re-offending is low the need for the specific deterrence in that case is reduced. However, the need for the general deterrence of conduct of the type undertaken by the Offender in respect of all three charges calls for strong general deterrence;

3. the third matter for consideration as a purpose for sentencing is the protection of the community from the Offender;

4. next is rehabilitation, that is to promote the rehabilitation of the Offender. In this case that looms large, particularly given his continued denial of the sexual intercourse offence despite the findings made against him by the jury;

5. accountability, that is for the Offender to be accountable for his actions. As discussed the Offender has not demonstrated remorse and that is a matter to take into account in ensure accountability;

6. denunciation, that is to denounce the conduct of the Offender. Plainly sexual intercourse with a child under ten is abhorrent and obscene and calls for firm denunciation, notwithstanding the fact that the Offender himself was just 14 years of age at the time of the offending. The other offences also call for denunciation, particularly the possession of child abuse material as such material is commonly circulated amongst Offenders and other who remain undetected, resulting in a continuing harm to the victims of child sex abuse material; and

7. recognition, and that is to recognise the harm done to the victim of the crime and the community. Plainly the victim of the sexual intercourse was his sister and I have already referred to her victim impact statement. In relation to the child abuse material the victims are plainly the children who were sexually abused in that material and it is necessary to recognise the harm done to children who were subjected to abuse at that time.

Instinctive Synthesis

67. Ultimately in determining a matter such as this, the Court must engage in a process of instinctive synthesis as the Court of Criminal Appeal reminded the Court in the matter of Conte v R [2018] NSWCCA 209. It involves the consideration of the purposes for sentencing just referred to in the context of weighing the objective gravity of the offending with the Offender’s subjective case.

Proportionality

68. After engaging upon such an exercise it is necessary for the Court to then consider the question of proportionality, that is, a sentence should neither exceed nor be less than the gravity of the crime having regards to the objective circumstances. In sentencing there must be reasonable proportionality between the sentence and the circumstances of the crime.

Imprisonment

69. Before sentencing any person to a period of imprisonment I must be satisfied having considered all possible alternatives that no sentence, including a non-custodial sentence, other than imprisonment is appropriate.

70. In this case the Crown contended that the threshold under s5 had been met and that a term of imprisonment was warranted. Counsel for the Offender conceded same. I make that finding.

Guilty Plea

71. As mentioned previously, consideration must be given to the fact that the Offender pleaded guilty to the use carriage service offence and possess child abuse material offence. The pleas were made at a relatively late stage.

72. Counsel for the Offender submitted a discount on sentence of between 10 and 15% would be appropriate. The Crown submitted 10%, in the circumstances I consider a discount of 10% would be just and reasonable and that such a discount will not result in a lesser penalty which is unreasonably disproportionate to the nature and circumstances of the offending.

Special Circumstances

73. Special circumstances ought to be considered in every sentencing exercise. It was agreed between the parties that special circumstances exist, in this case so as to justify a departure from the statutory ratio for parole, primarily based upon the fact that this was the Offender’s first time in custody and his mental health issues. Having regards to the commonality of the addresses in respect to that matter I find that special circumstances do exist and I will alter the statutory ratio between parole and non‑parole.

Consistency

74. Consistency in sentencing is also significant, and for that reason statistics are often provided to the Court by parties in order to have a sense of where a sentence should fall. In this case I have considered that the statistics for offences of this nature and Offenders of this Offender’s profile.

75. For the offence of sexual intercourse with a child under ten, with the profile of an individual under the age of 18 as he was at that time, the statistical population is just 25 cases. Eight of those matters resulted in fulltime custody, of those the sentence range was 18 months to four years.

76. For the offence of using a carriage service in the way previously described, the statistical population of 17 cases, four matters resulting in fulltime custody with a range of between six months and two years.

77. For the third offence of possess child abuse material the population of cases is 165, 131 of those resulting in fulltime custody, with a range of between 18 months and three years.

78. Notwithstanding the fact that I have made those observations, I am mindful of the fact that the Court needs to be cautious in any weight to be given to statistics of that type. I am mindful of the comments made by Bell and Gageler JJ in The Queen v Pham (2015) 256 CLR 550 at 49, where their Honours stated: “Statistics have a role to play in fostering consistency in sentencing and in appellate review, provided care is taken to understand the basis upon which they had been compiled”. The Court went on to refer to the limitations referred to in the matter of Barbaro v R; Zirilli v R (2014) 253 CLR 58.

79. I have already observed the statistics are sometimes referred to as being a blunt instrument. The limited use of statistics is well understood and no reference has been made in this case to any relevant comparative or similar cases. It seems to me that in the overall circumstances I need to consider this matter independently of the statistics and specifically in light of its unique and individual circumstances. Nevertheless I am satisfied that the sentence to be imposed does not offend the principle of consistency.

Totality, Concurrency and Accumulation

80. In considering the principle of totality the Court must have regard to sentencing options of concurrency and accumulation or a combination thereof. It is necessary for the sentence to reflect the total criminality of the offending. The sentence must be just, having regard to the sentencing principles and not crushing.

81. Whilst the Offender committed the sexual contact offence as a child, the offence as a serious indictable offence and the Offender therefore must be dealt with according to law. Section 6 of the Children (Criminal Proceedings) Act notes the principle to which the Court is to have regard when sentencing a juvenile offender including factors such as children should not be imposed sentences no greater than imposed on an adult who committed an offence of the same kind.

82. There is a tension in this matter between the need for general deterrence for child sexual offences and the Offender’s status as a child himself at the time of the offending. Section 25AA of the Crimes (Sentencing Procedure) Act requires the Court to sentence the Offender in accordance with the sentencing patterns and practices at the time of sentence, that is today, having regard to the trauma of the child sexual abuse on children as understood at the time of sentencing. That question in this case is informed by the Victim Impact Statement to which I have already referred.

83. I should at this point just observe that although the Agreed Facts refer to other uncharged but similar acts of sexual or inappropriate behaviour by the Offender towards the complainant. For the purpose of this sentence I have put that fact out of my mind and the sentence relates only to those matters to which are charged.

Commencement Date

84. Taking into account the time spent in prison prior to today, the sentence will commence 25 July 2018.

Discount

85. The sentence will include a discount of 10% in relation to the matters to which the Offender is pleading guilty.

86. Due to the temporal disconnect between the offences I will impose partially concurrent and partially cumulative sentences for the three offences in order to ensure that the overall sentence is not crushing.

Imposition of Sentence

87. Please stand sir. You are convicted of the three offences to which I previously referred, they are:

1. sexual intercourse with a child under ten years of age, in breach of s66A of the Crimes Act;

2. use of a carriage service to menace, harass or offend in breach of s474.17(1) of the Criminal Code (Cth); and

3. possess child abuse material in breach of s91H of the Crimes Act.

88. For the offence of using a carriage service to menace, harass or offend I impose a fixed term of imprisonment of six months commencing 25 July 2018 and expiring 24 January 2019, that is last week.

89. For the offence of possess child abuse material I impose a non‑parole period of 12 months to commence on 25 December 2018 and expiring 24 December 2019. I impose a head sentence of 18 months which will expire on 24 June 2020.

90. For the offence of sexual intercourse with a child under the age of ten I impose a non‑parole period of two years and eight months commencing 25 November 2019 and expiring 24 July 2022. For that offence I impose a head sentence of four years and eight months which will expire 24 July 2024.

91. That means that the overall effective sentence I have imposed upon you is a period of six years commencing 25 July 2018 and expiring on 24 July 2024. I have imposed an effective non‑parole period of four years which will expire on 24 July 2022, at which time you will be eligible to apply for parole.

92. I direct that a copy of the report by Ms Duffy accompany the Offender’s Warrant of Commitment.

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Amendments

23 July 2019 - Non-publication orders clarified.

Decision last updated: 23 July 2019