Medium Neutral Citation: R v Sorensen [2024] NSWDC 138
Hearing dates: 14 September 2023, 17 November 2023, 9 February 2024, 12 April 2024
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   I impose a sentence of 2 years 7 months.
(2) Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentence is to be served by way of intensive correction order.
(3) The standard conditions prescribed by section 73 of the Crimes (Sentencing Procedure) Act 1999 apply, that is: –
(a) The offender must not commit any offence; and
(b) The offender must submit to the supervision by a Community Corrections Officer.
(c)   The following additional conditions apply: –
(i) The offender is to serve a period of 1 year 10 months of the intensive correction order by way of home detention commencing today 12 April 2024.
(ii) The offender is to attend on Dr Antony Henderson, Forensic Psychiatrist at a frequency of at least once every month initially in order to monitor compliance with a treatment plan implemented by Dr Henderson.
(iii) The offender is to comply with any directions of Dr Henderson in regards to treatment including any referral to any other treating psychiatrist that Dr Henderson deems fit.
(iv) The offender is to remain compliant with all appropriately prescribed medication.
(v) The offender is to continue to accept ongoing psychological treatment with Dr Teo Xia, psychologist on a fortnightly basis or otherwise as directed by Dr Xia.
(vi) The offender is to remain abstinent from all alcohol and illicit substance use to be confirmed by random liver function test monitoring, CDD testing and urine drug screen monitoring at a frequency of once every 6 to 8 weeks or as required by his supervising psychiatrist, general practitioner or psychologist.
(vii) The offender is to remain an active participant in the PTSD support group and rehabilitation group Veteran Surf Project.
(viii) In the event the offender relapses in respect to alcohol or illicit drug use he is to accept an admission to a residential drug and alcohol treatment facility.
(ix) Should the offender experience a significant deterioration in his mental health, he is to accept a further admission to an inpatient psychiatric treatment facility.
(x) The offender is to waive any clinical rights of confidentiality in order to notify the Court should any breaches of the proposed treatment plan take place.
(4)   The offender is to immediately report to the Mt Druitt Community Corrections Office.
(5)   I have been advised by Community Corrections that the home detention orders require mandatory electronic monitoring. To the extent that is not the case, the offender is subject to electronic monitoring for the duration of the home detention order.

Catchwords:
CRIME – sentence - intentionally record intimate image without consent – multiple complainants – victim impact statements – intensive correction order – relevant considerations – home detention

Legislation Cited:
Crimes (Domestic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kevin Sorensen

Details

AGLC: R v Kevin Sorensen [2024] NSWDC 138
Case: [2024] NSWDC 138
Decision Date: 12 April 2024

CaseChat Overview and Summary

In the case of R v Kevin Sorensen, the defendant was convicted of intentionally recording intimate images of multiple complainants without their consent. The matter was heard in the Local Court of New South Wales. The primary issue for the court was to determine an appropriate sentence for Sorensen, taking into account the severity of his crimes, the number of victims, and the impact on them. The court was also required to consider the appropriate conditions for any intensive correction order that might be imposed.

The court examined various factors including the nature of the offence, the need for deterrence, rehabilitation, and the specific circumstances of Sorensen's case. It gave significant weight to the victim impact statements, which detailed the profound psychological harm suffered by the victims. The court concluded that Sorensen's actions were egregious and warranted a substantial sentence. However, it also recognised Sorensen's potential for rehabilitation, which led to the decision to impose a sentence by way of an intensive correction order, with specific conditions designed to ensure Sorensen's rehabilitation and to protect the community.

In light of the above considerations, the court imposed a sentence of 2 years and 7 months, to be served through an intensive correction order. The court mandated that Sorensen must adhere to a rigorous treatment and supervision regime, which includes home detention, regular psychological and psychiatric assessments, and strict abstinence from alcohol and illicit substances. Additionally, Sorensen must remain active in support and rehabilitation groups and accept admissions to treatment facilities if his condition deteriorates or if he relapses. The court emphasised the importance of monitoring and compliance with these conditions to ensure Sorensen's rehabilitation and to prevent reoffending.

The court also issued several orders to ensure Sorensen's compliance with the intensive correction order, including mandatory electronic monitoring during home detention and immediate reporting to Community Corrections. Sorensen was further required to waive any confidentiality rights in his treatment to allow for court notification in the event of any breaches in his treatment plan.

Orders

Orders of the court

(1) I impose a sentence of 2 years 7 months.

(2) Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentence is to be served by way of intensive correction order.

(3) The standard conditions prescribed by section 73 of the Crimes (Sentencing Procedure) Act 1999 apply, that is: –

(a) The offender must not commit any offence; and

(b) The offender must submit to the supervision by a Community Corrections Officer.

(i) The offender is to serve a period of 1 year 10 months of the intensive correction order by way of home detention commencing today 12 April 2024.

(ii) The offender is to attend on Dr Antony Henderson, Forensic Psychiatrist at a frequency of at least once every month initially in order to monitor compliance with a treatment plan implemented by Dr Henderson.

(iii) The offender is to comply with any directions of Dr Henderson in regards to treatment including any referral to any other treating psychiatrist that Dr Henderson deems fit.

(iv) The offender is to remain compliant with all appropriately prescribed medication.

(v) The offender is to continue to accept ongoing psychological treatment with Dr Teo Xia, psychologist on a fortnightly basis or otherwise as directed by Dr Xia.

(vi) The offender is to remain abstinent from all alcohol and illicit substance use to be confirmed by random liver function test monitoring, CDD testing and urine drug screen monitoring at a frequency of once every 6 to 8 weeks or as required by his supervising psychiatrist, general practitioner or psychologist.

(vii) The offender is to remain an active participant in the PTSD support group and rehabilitation group Veteran Surf Project.

(viii) In the event the offender relapses in respect to alcohol or illicit drug use he is to accept an admission to a residential drug and alcohol treatment facility.

(ix) Should the offender experience a significant deterioration in his mental health, he is to accept a further admission to an inpatient psychiatric treatment facility.

(x) The offender is to waive any clinical rights of confidentiality in order to notify the Court should any breaches of the proposed treatment plan take place.

(4) The offender is to immediately report to the Mt Druitt Community Corrections Office.

(5) I have been advised by Community Corrections that the home detention orders require mandatory electronic monitoring. To the extent that is not the case, the offender is subject to electronic monitoring for the duration of the home detention order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Kevin Sorensen [2024] NSWDC 138

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 30 of 30 shown

DG v R (No 1)
[2023] NSWCCA 320 Para 170

…In DG v R [2023] NSWCCA 320, the Court (Wilson, Fagan and Sweeney JJ), having considered the obiter comments of Simpson AJA in Mandranis , held that where an aggregate sentence of more than three years was considered appropriate, and the offender had serve some presentence custody, it would be an impermissible exerc…
DC v R
[2023] NSWCCA 82 Para 128

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
Zheng v R
[2023] NSWCCA 64 Para 102

…imate submission that an intensive correction order required “serious consideration", with reference to the judgment of Gleeson JA in Zheng v R [2023] NSWCCA 64 where the effect of the decision in Stanley v DPP [2023] HCA 3 was summarised. Emphasis was placed on the fact that while community safety was not the sole…
Stanley v DPP (NSW)
[2023] HCA 3 Para 102

…us consideration", with reference to the judgment of Gleeson JA in Zheng v R [2023] NSWCCA 64 where the effect of the decision in Stanley v DPP [2023] HCA 3 was summarised. Emphasis was placed on the fact that while community safety was not the sole consideration in the decision to make, or refuse to make, an i…
Hesketh v R
[2021] NSWCCA 262 Para 153

…short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose pun…
Hall v R
[2021] NSWCCA 220 Para 152

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] – [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the “crushing” effect of a long total senten…
Mandranis v The Queen
[2021] NSWCCA 97 Para 102

…in excess of 3 years was “unlikely", and that the pre-sentence custody could be dealt with in the manner identified by Simpson AJA in Mandranis v R [2021] NSWCCA 97. It was the offender’s ultimate submission that an intensive correction order required “serious consideration", with reference to the judgment of Glees…
Cressel v The Queen
[2021] NSWCCA 26

…eld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Filippou v R (2015) 89 ALJR 996; [2015] HCA 29 Hall v R [2021] NSWCCA 220 Hesketh v R [2021] NSWCCA 26 Hughes v R [2008] NSWCCA 48 Johnson v R [2016] NSWCCA 286 LN v R [ 2020] NSWCCA 131 Mandranis v R [2021] NSWCCA 97 Munro v R [2006] NSWCCA 350 Pfitzner v R [2010] NS…
Luque v R
[2017] NSWCCA 226 Para 114

…e significance in his offending. [75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in…
Ryan v Regina
[2017] NSWCCA 209 Para 15

…be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).…
Imbornone v R
[2017] NSWCCA 144 Para 125

…The observations of Wilson J in Imbornone v R [2017] NSWCCA 144 at [57] helpfully set out a number of principles to be applied in respect to untested statements made by an offender as follows:…
Van Zwam v R
[2017] NSWCCA 127

…381 R v Qutami [2001] NSWCCA 353 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Stanley v DPP [2023] HCA 3 Van Zwam v R [2017] NSWCCA 127 Zheng v R [2023] NSWCCA 64 Category: Sentence Parties: Rex (Crown) Kevin Sorensen (Offender) Representation: Counsel: Mr P Boulton SC; Mr D McMahon (Offender) Solici…
Jonson v R
[2016] NSWCCA 286 Para 110

…As Bathurst CJ in Johnson v R [2016] NSWCCA 286 at [49] observed: –…
Filippou v The Queen
[2015] HCA 29 Para 107

…f proving on the balance of probabilities matters which are submitted in his favour: R v Olbrich (1999) 199 CLR 270; Filippou v R (2015) 89 ALJR 996; [2015] HCA 29.…
Filippou v R
[2013] NSWCCA 92 Para 107

…r bears the burden of proving on the balance of probabilities matters which are submitted in his favour: R v Olbrich (1999) 199 CLR 270; Filippou v R (2015) 89 ALJR 996; [2015] HCA 29.…
Devaney v R
[2012] NSWCCA 285 Para 126

…However I am also mindful of the observations of Allsopp (with whom Price J agreed) in Devaney v R [2012] NSWCCA 285 at [88] as follows…
Pfitzner v R
[2010] NSWCCA 314

…CA 48 Johnson v R [2016] NSWCCA 286 LN v R [ 2020] NSWCCA 131 Mandranis v R [2021] NSWCCA 97 Munro v R [2006] NSWCCA 350 Pfitzner v R [2010] NSWCCA 314 R v JRD [2007] NSWCCA 55 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] N…
Einfeld v R
[2010] NSWCCA 87 Para 142

…In Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Basten JA (with whom Hulme and Latham JJ agreed) said at [146]:…
Butters v R
[2010] NSWCCA 1

…ence) Act 2007 Crimes (Sentencing Procedure) Act 1999 , ss 37, 53A, 66, 3A Crimes Act 1900 , ss 91P(1), 344A Cases Cited: Butters v R [2010] NSWCCA 1 DC v R [2023] NSWCCA 82 Devaney v R [2012] NSWCCA 285 DG v R [2023] NSWCCA 320 Director of Public Prosecutions (NSW) v TH [2023) NSWCCA 81 Einfeld v R [2010] NSWCCA…
Hughes v R
[2008] NSWCCA 48 Para 166

…he offender has further spent a period of time in residential rehabilitation which is capable of being quantified by way of quasi-custody: Hughes v R [2008] NSWCCA 48 at [38]. The offender also relies upon his restrictive bail conditions which can also be considered a form of quasi-custody.…
R v JRD
[2007] NSWCCA 55 Para 141

…In R v JRD [2007] NSWCCA 55 Howie J considered the significance of taking into account other charged offences as follows: –…
R v MAK
[2006] NSWCCA 381 Para 152

…of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] – [17] per Spigelman CJ, Whealy J and Howie JJ).…
Munro v R
[2006] NSWCCA 350

…SWCCA 26 Hughes v R [2008] NSWCCA 48 Johnson v R [2016] NSWCCA 286 LN v R [ 2020] NSWCCA 131 Mandranis v R [2021] NSWCCA 97 Munro v R [2006] NSWCCA 350 Pfitzner v R [2010] NSWCCA 314 R v JRD [2007] NSWCCA 55 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 R v Elfar [2003] N…
R v Elfar
[2003] NSWCCA 358

…CCA 314 R v JRD [2007] NSWCCA 55 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v McGourty [2002] NSWCCA 335 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 Stanley v Director of Public Prosecutions (NSW)…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 4

…ciated by the Court of Criminal Appeal in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146.…
R v Palu
[2002] NSWCCA 381

…381 R v Olbrich (1999) 199 CLR 270 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v McGourty [2002] NSWCCA 335 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Stanley v DPP [2023] HCA 3 Van Zwam v R [2017] NSWCCA 127 Zheng v R [2023]…
R v McGourty
[2002] NSWCCA 335

…A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v McGourty [2002] NSWCCA 335 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Stanley v DPP [2023] HCA 3 Van Zwam v R [2017] N…
R v Qutami
[2001] NSWCCA 353

…LR 270 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v McGourty [2002] NSWCCA 335 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Stanley v DPP [2023] HCA 3 Van Zwam v R [2017] NSWCCA 127 Zheng v R [2023] NSWCCA 64 Category: Sentence…
R v Harrison
[2001] NSWCCA 79

…5 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v McGourty [2002] NSWCCA 335 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Stanley v DPP [20…
R v Olbrich
[1999] HCA 54 Para 107

…doubt. Further, that the offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: R v Olbrich (1999) 199 CLR 270; Filippou v R (2015) 89 ALJR 996; [2015] HCA 29.…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
37, 3A, 53A, 66 5 mentions (from Para 4)
Crimes Act 1900 (ACT)
344A, 91P(1) 3 mentions (from Para 1)
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 133)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 90)

Medium Neutral Citation:	R v Sorensen [2024] NSWDC 138
Hearing dates:	14 September 2023, 17 November 2023, 9 February 2024, 12 April 2024
Date of orders:	12 April 2024
Decision date:	12 April 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) I impose a sentence of 2 years 7 months. (2) Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentence is to be served by way of intensive correction order. (3) The standard conditions prescribed by section 73 of the Crimes (Sentencing Procedure) Act 1999 apply, that is: – (a) The offender must not commit any offence; and (b) The offender must submit to the supervision by a Community Corrections Officer. (c) The following additional conditions apply: – (i) The offender is to serve a period of 1 year 10 months of the intensive correction order by way of home detention commencing today 12 April 2024. (ii) The offender is to attend on Dr Antony Henderson, Forensic Psychiatrist at a frequency of at least once every month initially in order to monitor compliance with a treatment plan implemented by Dr Henderson. (iii) The offender is to comply with any directions of Dr Henderson in regards to treatment including any referral to any other treating psychiatrist that Dr Henderson deems fit. (iv) The offender is to remain compliant with all appropriately prescribed medication. (v) The offender is to continue to accept ongoing psychological treatment with Dr Teo Xia, psychologist on a fortnightly basis or otherwise as directed by Dr Xia. (vi) The offender is to remain abstinent from all alcohol and illicit substance use to be confirmed by random liver function test monitoring, CDD testing and urine drug screen monitoring at a frequency of once every 6 to 8 weeks or as required by his supervising psychiatrist, general practitioner or psychologist. (vii) The offender is to remain an active participant in the PTSD support group and rehabilitation group Veteran Surf Project. (viii) In the event the offender relapses in respect to alcohol or illicit drug use he is to accept an admission to a residential drug and alcohol treatment facility. (ix) Should the offender experience a significant deterioration in his mental health, he is to accept a further admission to an inpatient psychiatric treatment facility. (x) The offender is to waive any clinical rights of confidentiality in order to notify the Court should any breaches of the proposed treatment plan take place. (4) The offender is to immediately report to the Mt Druitt Community Corrections Office. (5) I have been advised by Community Corrections that the home detention orders require mandatory electronic monitoring. To the extent that is not the case, the offender is subject to electronic monitoring for the duration of the home detention order.
Catchwords:	CRIME – sentence - intentionally record intimate image without consent – multiple complainants – victim impact statements – intensive correction order – relevant considerations – home detention
Legislation Cited:	Crimes (Domestic…