R v KZ

[2022] NSWDC 643

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v KZ [2022] NSWDC 643

Hearing dates:

27 September 2022, 11 November 2022 and 24 November

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Criminal

Before:

O’Brien AM DCJ

Decision:

See paragraph 172

Catchwords:

SENTENCING – multiple serious offences committed as a juvenile and adult – Commonwealth and State offences – break, enter and damage school premise including by fire – substantial quantum of damage occasioned – enter dwelling with intent – larceny – firearms offences – intimidation – transmit child abuse material – possess child abuse material of a most heinous type – offending in part racially motivated – reduced moral culpability and impact on objective seriousness – autism spectrum disorder and social isolation of offender – importance of youth – future dangerousness – effect of COVID-19 – totality

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code Act 1995 (Cth)

Firearms Act 1996 (NSW)

Cases Cited:

Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372

Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4

CR v R [2020] NSWCCA 289

CW v R [2022] NSWCCA 50

Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

DS v R; DM v R [2022] NSWCCA 156

Elias v The Queen (2013) 248 CLR 483

Fitzgerald v R [2015] NSWCCA 226

Howard v R [2019] NSWCCA 109

Markarian v R (2005) 228 CLR 357

Miller v R [2015] NSWCCA 86

Minehan v R [2010] NSWCCA 140

MS2 & Ors v R [2005] NSWCCA 397

Muldrock v R (2011) 244 CLR 120

Osman v R [2020] NSWCCA 78

Paterson v R [2021] NSWCCA 273

R v Booth [2009] NSWCCA 89

R v Coffey [2003] VSCA 155

R v Cook [2018] TASCCA 20

R v Dawson [2022] NSWSC 1632

R v De Leeuw [2015] NSWCCA 183

R v Engert (1995) 84 A Crim R 67

R v Hamze [2005] NSWSC 136

R v Hutchinson [2018] NSWCCA 152

R v Najem [2008] NSWCCA 32

R v Pham (2015) 256 CLR 550

R v Ponfield (1999) 49 NSWLR 327

R v Porte [2015] NSWCCA 174

R v Tran (2002) 4 VR 457; [2002] VSCA 52

Sarhene v R [2022] NSWCCA 79

Taylor v The Queen [2015] TASCCA 7

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

KZ (offender)
Office of the Director of Public Prosecutions (NSW)

Representation:

Counsel: Mr T McKenzie (for the offender)
Solicitor: David Ryan & Co Legal (for the offender)
Solicitor: Mr K Blackley (for the Director of Public Prosecutions)

File Number(s):

2021/00205084 and 2021/00258246

Publication restriction:

There is to be no publication of any details that might identify or tend to identify the young person/offender.

judgment

Introduction

1. The offender was born in March 2003. He is presently aged 19 years. He is to be sentenced for twenty-one offences committed between 21 May 2019 and 18 July 2021. Fifteen of those offences were committed when he was a juvenile. The remaining six occurred on 18 July 2021, after he had attained his majority. Given the offender was a young person for part of his offending, I remind interested parties of the statutory prohibition on the publication of any details that might identify him.

2. The matter was initially listed before me for sentence in the District Court at Campbelltown on 27 September 2022. The matter was unable to be completed on that day as a background report from Youth Justice NSW had not been ordered by the court. The proceedings were adjourned until 28 October 2022 to allow preparation of that report and for any further submissions to be made concerning its contents. The matter was unable to proceed on 28 October through no fault of the offender and was further adjourned until 11 November 2022. On that occasion the Crown made an application for an adjournment to allow a psychiatric report it had commissioned to be put before me. Over the objection of the offender’s counsel Mr McKenzie, I granted that application, and the matter was adjourned until 24 November 2022, following which it was again adjourned until today for judgment.

3. I can indicate at the outset that I have not found this an easy sentencing task. Aspects of it pull powerfully in very different directions.

4. The offences committed as a juvenile and for which sentences are to be imposed are:

1. Three offences of break and enter and commit serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900. These offences carry a maximum penalty of 14 years imprisonment. The offences occurred on 21 May 2019, 18 September 2019, and 14 October 2019.

2. Four offences of destroying or damaging property contrary to s 195(1)(a) of the Crimes Act 1900. These offences carry a maximum penalty of 5 years imprisonment. The offences occurred on 16 September 2019, between 5 and 6 February 2020, between 21 and 22 May 2020 and 14 June 2020.

3. Two offences of using a carriage service to transmit child-abuse material contrary to s 474.22 of the Criminal Code Act 1995 (Cth). These offences carry a maximum penalty of 15 years imprisonment. The offences occurred on 16 July 2019 and 3 May 2020.

4. One offence of manufacturing a firearm without a licence or permit contrary to s 50A(1) of the Firearms Act 1996. This offence carries a maximum penalty of 10 years imprisonment. The offence occurred between 22 January and 23 January 2020.

5. One offence of possessing an unauthorised firearm contrary to s 7A(1) of the Firearms Act 1996. This offence carries a maximum penalty of 5 years imprisonment. The offence occurred between 22 January and 23 January 2020.

6. One offence of possessing ammunition without authority contrary to s 65(3) of the Firearms Act 1996. This offence carries a maximum penalty of 50 penalty units. The offence occurred between 22 January and 23 January 2020.

7. One offence of entering land with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900. This offence carries a maximum penalty of 7 years imprisonment. The offence occurred on 11 February 2020.

8. Two offences of larceny contrary to s 117 of the Crimes Act 1900. These offences carry a maximum penalty of 5 years imprisonment. The offences occurred on 10 November 2019 and between 1 and 2 May 2020.

5. These offences were committed when the offender was aged between 16 years and 2 months and 17 years and 3 months. It is not a matter of dispute that he is to be dealt with for these offences according to law, rather than in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.

6. The offences committed as an adult, and for which sentences are to be imposed are as follows:

1. Two offences of intimidation contrary to s 13(1) of the Crimes (Domestic andPersonal Violence) Act 2007. These offences carry a maximum penalty of 5 years imprisonment.

2. One offence of possessing a prohibited pistol contrary to s 7(1) of the Firearms Act 1996. This offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years imprisonment.

3. One offence of possessing a prohibited firearm contrary to s 7(1) of the Firearms Act 1996. This offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years imprisonment.

4. One offence of possessing child-abuse material contrary to s 91H(2) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years imprisonment.

5. One offence of carrying a cutting weapon upon apprehension contrary to s 547D of the Crimes Act 1900. This offence carries a maximum penalty of 6 months imprisonment.

7. All these offences occurred on 18 July 2021 when the offender was aged 18 years and 4 months.

8. The offender’s pleas of guilty were entered in the Local Court at Picton and the Children’s Court at Campbelltown on 6 May and 15 August 2022 respectively, and he is entitled to a 25% discount on what would otherwise be appropriate penalties to reflect the utilitarian value of his pleas. Following his arrest on 18 July 2021 he was granted bail on the following day. He was re-arrested on 9 September 2021 and has remained in continuous custody since then. This period of presentence custody will be taken fully into account, meaning the sentences to be imposed today will commence on 8 September 2021.

9. As the offences of possess prohibited pistol and possess prohibited firearm attract a standard non-parole period, it is necessary that I have regard to it. The standard non-parole period applies to an offence found in the mid-range of objective seriousness for such offences considering objective factors, and without reference to matters personal to the offender. In Muldrock v R (2011) 244 CLR 120 the High Court held that the standard non-parole period applicable to an offence is not to be treated as if it were a necessary starting point or the only important end point in framing a sentence for such an offence. Reference to it is part of the task whereby the court determines the appropriate sentence in the process of intuitive or instinctive synthesis discussed by McHugh J in Markarian v R (2005) 228 CLR 357. In the determination of sentence for an offence where there is a standard non-parole period, it and the maximum penalty are legislative guideposts for the sentencing court along with other established sentencing principles and, to the extent relevant the Crimes (Sentencing Procedure) Act 1999.

10. The offending for which the offender is to be sentenced involves crimes against both Commonwealth and state law. He is to be sentenced for the Commonwealth offences (the two charges of using a carriage service to transmit child-abuse material) having regard to Part 1B of the Crimes Act 1914 (Cth). In respect of the New South Wales offences I must have regard to the Crimes (Sentencing Procedure) Act. In all matters it is necessary for me to assess the objective seriousness of the offences for which the offender is to be sentenced. I am required to do this by reference to the maximum penalties prescribed by the Parliament, the facts and circumstances of the offending, relevant common law principles and the Crimes Act (Cth) and the Crimes (Sentencing Procedure) Act. As observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10], “Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial experience. Reasonable minds may differ as to the conclusion”.

11. I am required to impose sentences that are proportionate to the gravity of the offending and in doing so have regard to their factual circumstances and the subjective features of the offender. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation.

12. In dealing with the state offences I must also pay attention to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Those purposes are adequate punishment, general and specific deterrence, the protection of the community, the rehabilitation of the offender, the need to make the offender accountable for his conduct and to denounce it, and the need to recognise the harm done to the victim and the community. I must also have regard to s 5 of that Act which provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no other penalty is appropriate.

13. Both Commonwealth offences are “child sex offences” within the meaning of s 3 of the Crimes Act 1914 (Cth). In sentencing for them, I am required to comply with s 16A(1) of the Crimes Act 1914 (Cth) and impose sentences that are of a severity appropriate in all the circumstances. In doing so I must take into account the factors set out in s 16A(2) as are relevant and known to me, bearing in mind that these are not an exhaustive list of all to which I can have regard. I must also consider s 17A(1) which provides that a court shall not pass a sentence of imprisonment in respect of a federal offender unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate. In addition, I must have regard to s 20(1)(b)(ii) which requires a Commonwealth child sex offender to serve an actual period of imprisonment unless there are exceptional circumstances.

14. It is also necessary in sentencing for the Commonwealth offences to seek to achieve consistency, and to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency sought is in the application of relevant legal principles, rather than in the numerical equivalence of sentences, and I have sought to give effect to this.

15. Further, in dealing with the Commonwealth offences, it will be necessary for me to have regard to s 16A(2AAA) of the Act which is in the following terms:

In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a) when making an order—to impose any conditions about rehabilitation or treatment options;

(b) in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program.

16. Once all the relevant factors have been considered I am to undertake an instinctive synthesis. That is, I must make a value judgment as to what is an appropriate sentence having regard to all the factors of the case including the offender’s subjective circumstances. As a result, there is no such thing as a single correct sentence. As emphasised by the High Court in Elias v The Queen (2013) 248 CLR 483 at [27]:

“….the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.”

Agreed Facts concerning the offences committed as a juvenile

17. A statement of agreed facts was provided to the court, and it is upon the basis of that document that the offender will be sentenced. It will not be recited verbatim in this judgment. Rather I will seek to summarise it.

18. On 18 July 2021 the offender was arrested for intimidating two children at Mount Annan. At the time of his arrest, the offender was 18 years and 3 months old. When he was arrested, Police lawfully seized various items from his house, including a number of hard drives.

19. Those hard drives were submitted for forensic analysis, which identified an electronic journal and various videos and images. These identified the offender as having committed fifteen offences before he turned 18, and I will now outline those.

20. At 2:50am on 21 May 2019, the offender entered the grounds of the Mount Annan Primary School. Once inside the grounds of the school, he walked around the area, trying door handles and looking through windows of various buildings. At the time he was filming and narrating his actions.

21. The offender found an open door and entered a classroom. Inside the classroom, he opened several internal doors. After a short time he entered a classroom containing iPads in blue cases, belonging to the school.

22. The offender picked up one of the iPads and made a recording on it, saying “You have been visited by the spooky ghost that lies within this voice memo app. Show this to your teacher and say…What the fuck. I mean don’t say that, that’s a bad word.” The offender searched through the iPad, watching various videos recorded by students, before returning it.

23. He then walked to the kitchenette in the classroom and made himself a cup of coffee before continuing to walk through other rooms in the building. He stated in his recording “They made the mistake when they locked everything from the outside but then left everything on the inside open, which means that if a person can get through one of the outside parts, then they now have access to everything.”

24. The offender then searched through bags and looked on shelves before picking up a yellow frisbee, a travel mug with a lid, and three pencils. He left the premises and took those items with him.

25. This conduct on 21 May 2019 give rise to an offence of break and enter and commit serious indictable offence being larceny.

26. On 16 July 2019, at approximately 1:30am, the offender was on his computer. He was using the Discord social media platform and was in a chatroom named “Paladins” with four other participants. The offender used a screen capture function while using the computer to record his activity on the screen and his voice while using it.

27. During this chat, the offender uploaded 15 images and gifs depicting sexualised torture and mutilation of females. Of those 15 images, 4 were Child Abuse Material, namely:

1. 1 anime gif depicting a pre-pubescent child tied up in a torture device before being stabbed to death,

2. 1 anime image depicting a pubescent child tied to a chair being electrocuted,

3. 1 anime image of a pubescent child with their leg cut off and bleeding, appearing highly distressed,

4. 1 anime image of a prepubescent child on the floor naked with all both arms and legs cut off bleeding profusely and appearing highly distressed.

28. The offender was laughing throughout this and said, “Are you guys still laughing at the girl in the fucking chair”, in reference to the second image uploaded.

29. This conduct on 16 July 2019 gives rise to a Commonwealth offence of using a carriage service to transmit child abuse material.

30. In the evening of 16 September 2019 the offender entered the grounds of Mount Annan High School and used a hammer to smash 23 windows connected to the science block. The offender then left the building. This conduct on 16 September 2019 gives rise to an offence of destroying or damaging property.

31. The offender’s journal contains an entry purporting to be written on 18 September at 1:18am as follows:

…school wasted so much of my and others lives. Yes you meet cool people. But there’s still the five hours of wasted time.

They don’t teach you about the Jews or difference between races.

They preach diversity and multiculturalism.

I cannot simply wait until adulthood and change how it words. They wouldn’t allow that. With how things are going now, I’ll be labelled a Nazi before I even open my mouth, without any evidence to say so. And people will believe it.

I’m not going to lie and say I’m not partially doing it as a petty form of revenge. I know it won’t achieve much of anything besides moderately humouring the students and moderately annoying the staff.

I could commit arson and use the gasoline I was going to use on the mosque before. What are the chances my father checks the can? It was covered in dusty heavily, clearly he hasn’t touched it in a long time

I’m certain they only have cameras in the main staff areas, or in computer labs.

I’ll go scope it out now. Don’t need to bring the gasoline first thing. I can see what’s happening with the glass from before. If it’s still broken I’ll tear it open and take a look around for coming back with the gasoline.

I’ll use a mask. A science lab storage might have security. A mask as in a kitchen cloth tied as a balaclava. Eh. Don’t care too much. Or perhaps I care a lot.

32. At about 2:40pm on 18 September 2019 the offender entered the grounds of Mount Annan High School. He then entered the science building he damaged on 16 September 2019. Whilst inside the building, the offender collected several paper records and files which he placed on the floor before setting them alight using matches. He did not use petrol or any accelerant. He then fled the scene.

32. The school’s fire alarm was activated, and the New South Wales Fire Brigade attended and extinguished the blaze. The total cost of the damage to the school from the Fire and the smashed windows was $123,035.00.

33. This conduct on 18 September 2019 gives rise to an offence of break and enter and commit serious indictable offence, being destroying property by fire.

34. At around 1:30am on 14 October 2019 the offender again entered the grounds of Mount Annan High School. The offender gained entry to the library building by smashing a ground floor window. Once inside, he collected several books and placed them on a metal trolley. He then doused the trolley with petrol, leaving a twenty-metre-long ignition trail leading from the metal trolley to the broken window. The offender then set the trail alight.

35. The resulting fire caused significant damage to the structure of the building and destroyed most of the contents inside. The clean-up of debris, the value of the contents inside and the cost of repairs to the structure itself totalled $2.5m.

36. This conduct on 14 October 2019 gives rise to an offence of break and enter and commit serious indictable offence, being destroying property by fire.

37. At about 3:40am on 10 November 2021 the offender approached a Holden Colorado Utility parked in Chain-o-Ponds Circuit, Mount Annan. The vehicle was unlocked, but all doors and windows were closed.

38. The offender opened the front door of the vehicle and climbed inside. He found $20 in various denominations and a “Kinchrome” branded folding knife valued at $40. He took the knife and the money.

39. The offender’s actions disturbed a dog at the address, and its barking woke the occupant and owner of the car. He went outside and saw the offender standing on the road beside the open driver’s side door of the car and yelled out “Are you alright mate?”. In response, the offender fled the down the street. This conduct on 10 November 2021 gives rise to an offence of larceny.

40. On 11 January 2020 at 12:01pm, the offender wrote in his journal about how to procure the necessary components to make a projectile to be used in a homemade “slam gun” – being a firearm consisting of two metal tubes and a makeshift handle which can be loaded with one round of ammunition. A slam gun has no trigger mechanism and requires the application of manual force to trigger the firing pin.

41. On 13 January 2020, the offender wrote in his journal that he had made a projectile, although no further detail as to how he did so is provided. On 18 January 2020, the offender wrote in his journal about what steps he had taken to assemble a slam gun. On 22 January 2020, the offender wrote in his journal that he had made a functioning slam gun which would fit the projectile he had previously made.

42. This conduct between 11 January and 22 January 2020 gives rise to offences of manufacturing a firearm without a permit, possessing an unauthorised firearm, and possessing ammunition without authority.

43. On 5 February 2020 the offender wrote in his journal that he was going to walk to the Mount Annan Botanical Gardens. He stated he was going to go to the “Stolen Generations Memorial” located in the botanical gardens and damage it. He noted that, as sandstone does not have any “chemical weakness like limestone” that he would use “pure, unadulterated, totally overpowering strength” and a pickaxe to deface it. He also stated that the thought of doing this did not make him anxious as he’d “done vandalism twice before, so I’ve got friggin nerves of steel bro”. Lastly, he stated the following:

“Is doing this going to result in any outcome good for my cause? Yes, as any increase in tension and conflict between ethnic groups is good. This wont make anyone dislike seigfags more because the vast majority of people opposed to us are lemmings who’s opinions are based solely on what the majority believes”.

45. On either 5 or 6 February 2020 the offender attended the Botanical Gardens and caused significant damage to the “Stolen Generations Memorial”. The parties agree this damage occurred using a pickaxe. Specialised repair was required at a cost of $120,000.

46. On 7 February 2020, the offender wrote (in reference to his damage to the memorial):

“Good start to part 25, searched up regarding what I did three nights ago and found this. 50K in damage is a beautiful number to see. Fuck your money kikes…

…I look forward to another report of vandalism but without the term ‘Vile’ forcefully injected into the title from tonight’s ordeal.

I fight for those who have forgotten how to.

Those dozen people who”

47. This conduct on 5 or 6 February 2020 gives rise to an offence of destroying or damaging property.

48. At 2am on Tuesday 11 February 2020 the offender accessed the rear yard of a property in Angophora Circuit, Mount Annan. At that address resided a family whose daughter went to school with the offender. His journal disclosed a romantic interest in her.

49. The offender walked around the house and approached the front of the premises and banged on the outside window to the master bedroom at the front of the house, where the mother was sleeping. He then walked to the front door and rang the doorbell.

50. The noise woke the mother who saw the offender. He was wearing long dark pants and a hoodie jumper. She ran to the kitchen and called 000. The offender then jumped over the fence and entered the rear yard. He approached the black sliding security door and attempted to open it, but it was locked. The mother heard this and shouted out “Fuck off, I’ve called the police”. The offender then left the scene.

51. On 25 April 2020 the offender wrote in his journal about wanting to see the girl from school that night. He wrote the following:

“…All of that I did fuelled purely by lust. I wanted to take her clothing, I wanted her laptop and pretty much everything I could get. She’s an innocent 17 year old girl in senior year of high school who draws Steven universe oc’s and post them to her Instagram and i want to break her. She is appealing because of her innocence, naivety, stupidity and air of nomieness.

Of course, everything I just typed is disgusting. If it were simply a thought, it would not be worth worrying over. Everyone has fantasised about horrific things, but the difference is I acted upon it. I did not do it, no. But if didn’t have that obstacle in my path I would have.”

52. This conduct on 11 February 2020 gives rise to an offence of enter land with intent to commit an indictable offence being intimidation.

53. Overnight, between 1 and 2 May 2020, the offender returned to the “Stolen Generations Memorial’ at Mount Annan Botanical Gardens. He there removed five plaques screwed onto the memorial. The Cost of replacing them was $300.

54. This conduct between 1 and 2 May 2020 gives rise to an offence of larceny.

55. On 25 May 2020 the offender wrote in his journal and updated his 2 May entry. He wrote that he:

…had actually just returned from using a crowbar to pry off the coon’s self- pity plaques from the attempted to be saved generations memorial. Have them under my bed as a trophy.

Yea I did it out of hate and not because it would achieve much truth,, I don’t care. I fucking hate ooga boogas and how disgusting they look. I hate how fucking brain dead they are and the disproportionate amount of crime they commit. Fuck them, I want them all dead. It would help all of us, I promise you.

56. At approximately 6:00pm on 3 May 2020, the offender was on his computer. He was using the Discord social media platform, in a chatroom named “Not for Qwartz” with 13 other participants. He used a screen capture function to record his activity on the screen, and his voice while using the computer.

57. During this chat, the offender uploaded material containing violent content. He also uploaded an image of a pubescent female engaged in a sexual act with an adult male. When he uploaded the material, he made sexual sounds that were captured by his microphone and relayed to other participants in the group chat.

58. This conduct on 3 May 2020 gives rise to a Commonwealth offence of using a carriage service to transmit child-abuse material.

59. Between 21 and 22 May 2020, the offender entered the grounds of the Mount Annan Primary School. Once inside the school grounds, he smashed 38 windows and three doors attached to buildings inside the school. Given the amount of broken glass left in carpeted areas, the classrooms connected to those windows were unusable for several weeks. The total cost of repairing that damage was $7,700.

60. On 22 May 2020 the offender wrote in his journal that he had “smashed a dozen or so windows with an axe”. He also wrote that he “wanted it to seem dangerous for students to go to school. If they don’t go they aren’t being taught by Jews”.

61. This conduct on 21 or 22 May 2020 gives rise to an offence of destroying or damaging property.

62. At about 6am on 14 June 2020 the offender entered the grounds of Mount Annan High School. Once inside the grounds, he used a crowbar to destroy twelve light fittings in various locations around the school. He also gained access to cages securing gas bottles to a barbeque inside the grounds and turned them all on. The offender then defaced a mural by throwing paint at it before returning home.

63. This conduct on 14 June 2020 gives rise to an offence of destroying or damaging property.

Agreed facts concerning the offences committed as an adult

64. MH who was born in October 2010 and CR born in July 2012 are young girls who live in Mount Annan with their families. There is a nature reserve nearby.

65. At about 7:00pm on 18 July 2021, these girls were playing “tip” close to the car of C’s parents, when they noticed the offender walking in the nearby nature reserve. The offender had a backpack on and was wearing a dark camouflage jacket and dark pants.

66. M told C she didn’t feel safe playing outside with the offender around, so the girls went inside, told their parents they didn’t feel safe, and said they were going to play inside. They stayed inside for about 20 minutes, before deciding to go outside and play again.

67. Initially, the girls did not observe the offender, but after a couple minutes of playing outside again, C saw him. He started walking towards the girls and looked at them, at which point C didn’t feel safe. They walked back to their parents and the offender walked off.

68. The girls went inside and played in the house for a while, when they decided to play hide and seek. A friend of the girls, Z, was also playing, and was counting while the girls hid. They both decided to hide near some bushes outside M’s family home, when they saw the offender again. He walked up to the girls and said, “Hey little kids, what are you running away from, do you want to come and play”. He said it in a medium voice. I have taken this to mean that he did not say it loudly, nor did he say it softly.

69. C felt very unsafe, and ran off to see her parents, and tell them a man was outside and asking them to play. M froze, but shortly after C ran inside, M screamed and followed her in. Both M and C spoke with Anthony Holmes, a father to one of the children on the street, and a Detective Senior Constable of the NSW Police Force. DSC Holmes went outside with a torch to try and find the offender.

70. He saw the offender in the nearby reserve. DSC Holmes approached the offender. He was wearing a camouflage jacket, dark pants, camouflage backpack and a head lamp.

71. DSC Holmes called out to the offender and asked what he was doing. The offender replied, “I am just looking at the echidnas”, and started walking away. DSC Holmes said, “Hey come here I want to talk to you” and caught up with the offender. He asked the offender if he was over in the location where the girls were. The offender said “Yeah, maybe. Why?”. DSC Holmes asked if the offender spoke with two young girls, and he replied “Yes. I was just trying to scare them”.

72. DSC Holmes identified himself as an officer of the NSW Police Force, asked the offender to walk back with him, and told him he would be contacting the Police.

73. DSC Holmes asked the offender what was in his backpack, at which point the offender ran in a northerly direction. DSC Holmes chased him and forced him to the ground. DSC Holmes placed the offender under arrest and cautioned him.

74. This conduct on 18 July 2021 gives rise to two offences of intimidation.

75. DSC Holmes asked the offender to empty his pockets, which he did, producing a mobile phone and a knife from the right waistband of his pants. Shortly afterwards he was conveyed to Campbelltown Police Station.

76. The offender’s possession of a knife on 18 July 2021 gives rise to an offence of carrying a cutting weapon upon apprehension that has been referred to this Court on a s 166 Certificate.

77. Police asked the offender for the PIN to his mobile, so they could speak with his parents. They were contacted and asked to attend Campbelltown Police Station to act as support persons for him. The offender’s mother told police she suspected her son suffered from an undiagnosed autism spectrum disorder.

78. Police accessed and reviewed images in the offender’s mobile phone and identified images of him with two firearms. The offender’s father informed Police that the firearms were gel blasters the offender owned and were currently in his bedroom.

79. Police advised the offender’s father they would be classified as replica firearms under NSW law, and they would need to be confiscated. The offender’s father consented to Police searching the offender’s bedroom. The offender’s father spoke to him whilst he was in custody, and informed Police that his son also consented to the search.

80. Police attended the offender’s house with his father and conducted a search of the offender’s bedroom. Police identified and seized two firearms, namely 1 Model Glock gel ball air pistol, and 1 Model 416D select fire gel ball air gun, and one plastic container of ammunition for the Gel blasters. An examination by the NSW Police Ballistics Investigation Section concluded the Model Glock met the definitions of a firearm and a pistol within the meaning of s 4(1) Firearms Act 1996. The Model 416D met the definitions of a firearm within the meaning of s 4(1) Firearms Act 1996 and a prohibited firearm within the meaning of Item 1,7 and 11 of Schedule 1 of the Firearms Act 1996.

81. The possession of these items gives rise to the offences of possessing an unauthorised pistol and possessing an unauthorised prohibited firearm.

82. Police also seized a number of electronic devices, including:

1. Western Digital hard drive – serial number WXNIE53HZ108,

2. Western Digital hard drive – serial number WX91A888J,

3. Blue Verbatim branded USB Drive,

4. Orange and green Sony branded USB Drive,

5. Desktop Computer.

83. The Hard Drives and USB Drives were subject to analysis by NSW Police. The Western Digital hard drive – serial WX91A888J was found to have Child Abuse Material on it. Of the 20,587 images and 8647 videos, police identified thirty images and twenty five videos which met the definition of child abuse material pursuant to s 91FB Crimes Act 1900. Of the images:

1. Seventeen depicted pre-pubescent and pubescent children engaged in penile/vaginal and oral sexual intercourse or posing in a sexually suggestive manner.

2. Thirteen depicted pre-pubescent and pubescent children engaged in violent forms of torture, mutilation and physical abuse, including:

1. Two images depicting babies appearing under 12 months old deceased with significant wounds to their heads.

2. One image depicted two babies appearing under 12 months old hanging from nooses tied to a ceiling.

3. Several images depicted children being mutilated with knives and hooks inserted into their person.

84. Of the twenty five videos identified:

1. Ten depicted pre-pubescent and pubescent children engaged in penile/vaginal and oral sexual intercourse or posing in a sexually suggestive manner.

2. Fifteen depicted pre-pubescent and pubescent children engaged in violent forms of torture, mutilation and physical abuse, including:

1. Two videos depicting destruction of a foetus, including one where the foetus was “alive.”

2. One video involving a female punching two babies who appear under the age of 12 months, before slamming their heads into a tiled floor, resulting in significant injury and possible death.

3. Two videos depicting pubescent children being restrained in a tyre and set on fire.

4. Two videos of pubescent children being executed by being shot in the head. One of those videos involved the child being stripped naked and violently assaulted prior to their execution.

5. Several videos depicting pre-pubescent and pubescent children having sustained significant wounds caused by knives or other cutting implements.

85. The possession of this material gives rise to an offence of possessing child abuse material.

General principles and objective seriousness of the break and enter and enter land with intent offences.

86. Break and enter offences are serious and general deterrence is an important sentencing consideration. So much is clear from the maximum penalty of 14 years imprisonment prescribed by the Parliament. Courts have said repeatedly that a clear message must be sent that if people are convicted of these types of offences, then meaningful penalties will be imposed. The relative seriousness of the serious indictable offence committed following the breaking and entering is an appropriate matter for the court to consider in determining objective seriousness. Here, the serious indictable offences respectively are larceny, an offence, which carries a maximum penalty of 5 years imprisonment, and destroying or damaging property by fire, an offence which carries a maximum penalty of 10 years imprisonment.

87. More than 23 years ago, in R v Ponfield (1999) 49 NSWLR 327 the Court of Criminal Appeal delivered a guideline judgment in respect of break, enter and steal offences pursuant to s 112(1) of the Crimes Act. It provides some assistance in this sentencing task in both the break and enter offences and the enter land with intent offence. While not specifying a sentencing range for such offences, given the diversity of circumstances in which they are committed, the Court nonetheless referred to the factors to be taken into account in sentencing for such offences and noted that the presence of any of them increased the seriousness of such offending.

88. I do not propose to recite the guideline in these reasons. It is however important to note the presence of several factors to which the guideline judgment referred. While none of the offences could be said to involve professional planning or organisation, each of them certainly involved some degree of planning and premeditation. I note the offences were committed at times when the buildings were unoccupied and this fact reduces to some extent their objective seriousness.

89. The break and enter at Mount Annan Public School is the least objectively serious of all three break and enter offences. It involved the offender stealing several items of modest value and no damage was occasioned. I have assessed the objective seriousness of that offence as falling towards the lower end of the range for offences of its type.

90. The break and enter offences at Mount Annan High School on 18 September and 14 October 2019 each involve substantial damage being occasioned and were undoubtedly motivated by the offender’s lingering resentment at his own attendance there. The extent of the damage in those offences, being $123,035 and $2.5 million respectively, significantly increase their objective seriousness. When public schools are deliberately damaged in this way, stern sentences which reflect the need for both general and specific deterrence are necessary. Public schools are a valuable and significant community resource. They provide the platform for the education of the vast majority of children in this state, and behaviour such as exhibited here must be met with a meaningful and deterrent punishment. It would have been perfectly clear to the offender that real dislocation to both the school and its students would have resulted from his conduct, and in committing the crimes he did, he showed disdain not only for the students and teachers at Mount Annan High School, but for the wider community.

86. The break and enter offences at Mount Annan High School are in a very different category to the offence at the Mount Annan Public School. The extent of the damage occasioned significantly distinguishes them from one another. The offence on 18 September 2019 I assess as falling at about the mid-range of objective seriousness for offences of its type, and the offence on 14 October 2019 I assess at a point above the mid-range of objective seriousness.

87. The enter land with intent offence is on any view troubling. In assessing its objective seriousness it is appropriate to consider the indictable offence the offender intended to commit. Here, that offence was intimidation, one which carries a maximum penalty of five years imprisonment. This offence occurred in the early hours of the morning at a time when the offender must have known that people would be present within the home. The offending was planned and premeditated, and the journal entry made by the offender regarding his conduct, albeit some months later, displays a concerning motivation, including the wish to take the clothing of the young female occupant for whom he had an unrequited romantic interest, along with an indication that his behaviour was “fuelled purely by lust”. There is a menacing overtone to this offence, and I have no doubt that the offender’s conduct would have caused the victim family considerable fear. Those observation having been made, I note the relatively short duration of the incident. I have assessed the objective seriousness of it as falling below the mid-range for offences of its type.

General principles and objective seriousness of the firearms offences

93. The offender is to be sentenced for five firearm offences, three committed as a juvenile and two as an adult. Offences relating to firearms are serious and general deterrence is an important consideration given the inherent danger to public safety that firearms represent. The FirearmsAct 1996 makes it clear that firearm possession is a privilege that is conditional on the overriding need for public safety. In R v Najem [2008] NSWCCA 32 Hulme J explained the rationale underlying the seriousness with which firearm offences are to be treated as “a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage”.

94. While the evidence does not permit a conclusion beyond reasonable doubt that any of the firearms or ammunition would be used for a criminal purpose, that fact alone is not a decisive consideration. In R v Hamze [2005] NSWSC 136, Howie J dealt with, amongst other things, an offence under Section 7 of the Firearms Act. There His Honour observed at [20]:

“They were serious offences because of the nature of the weapons, because there was ammunition found in the offender’s possession that fitted one of the weapons and because they were found in unsecured places in a suburban dwelling. It is not a matter of mitigation that there is no evidence the offender was going to use them for any unlawful purpose. The policy behind firearms offences is to control the use of weapons in the community generally and not simply to disarm the criminally minded. The Court of Criminal Appeal has emphasised the seriousness with which these types of offences must be treated: R v Cromarty [2004] NSWCCA 54: (2004) 144 A Crim R 515.”

95. Here, I have not been provided with any explanation by the offender as to why he had possession of the firearms or ammunition, nor is there any explanation for why he manufactured the home made “slam gun” and ammunition. His father’s affidavit deposes to his lack of awareness that the gel blaster weapons were illegal, noting that he had seen them advertised on You Tube. The offender told the author of the Youth Justice NSW report something similar. There is no suggestion in the agreed facts that the firearms were ever possessed by the offender in a public place and there is at least the hint of naivete and immaturity to his conduct in respect of all the firearms offences. So far as concerns the gel blaster offences, his conduct unfortunately appears to have been countenanced to some extent by his father. Upon being made aware the firearms were illegal, the offender’s father with the offender’s consent, immediately surrendered them to police.

96. Given the nature of the firearms and ammunition possessed by the offender both as a juvenile and an adult, and notwithstanding the seriousness with which offences of this type must be viewed, I have concluded that the objective seriousness of these offences falls towards the lower end of the range for offences of their type. In doing so I have also had regard to the context in which the offender possessed the firearms, including the violent content and radical ideology expressed in some of his journal entries, and the fact the subject weapons were not capable of causing harm in the same way as a firearm which discharges live rounds of ammunition.

General principles and objective seriousness of the child-abuse material offences.

97. Offences of this type are very serious indeed. So much is plain from the various maximum penalties that the Parliament has prescribed. In R v De Leeuw [2015] NSWCCA 183, the Court of Criminal Appeal noted that the following propositions apply to sentencing for child pornography/ child abuse material offences (with citations omitted):

a.   Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted:

b.   The objective seriousness of the offending is ordinarily determined by reference to the following factors:

i.   The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

ii.   The number of items or images possessed;

iii.   Whether the material is for the purpose of sale or further distribution;

iv.   Whether the offender will profit from the offence;

v.   In the case of possession or access to child pornography for personal use, the number of children depicted and thereby victimised;

vi.   The length of time for which the pornographic material was possessed:

c.   General deterrence is the primary sentencing consideration for offending involving child pornography:

d.   Less or limited weight is given to an offender’s prior good character;

e.   Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;

f.   Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: The possession of child pornography material creates a market for the continued corruption and exploitation of children;

g.   There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market:

h.   The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.

98. While these propositions and sentencing principles were articulated in the context of offences involving child pornography, it is beyond doubt that they have equal application to cases concerning other forms of child abuse material, including where children are victims of torture, cruelty and extreme physical abuse. In this case, both sexual and non-sexual child-abuse material was possessed and/or transmitted by the offender.

99. As I have noted, general deterrence and denunciation are paramount considerations when sentencing for offences of this type. In R v Booth [2009] NSWCCA 89 Simpson J (as Her Honour then was) described such offending as both “callous and predatory” at [40] and went on to observe at [41]-[43]:

“it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in undeveloped and disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.”

100. In Fitzgerald v R [2015] NSWCCA 226 at [33] Hoeben CJ at CL (with whom Price and Button JJ agreed) said:

“General deterrence is of paramount importance when sentencing for these kinds of offences. This kind of offending primarily requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender”.

101. The sentence to be imposed must make clear that this type of criminal behaviour is conduct that the community finds completely unacceptable and indeed abhorrent. As noted in Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4 at [159] “offences of this kind are an abomination in a civilised society”.

102. In Minehan v R [2010] NSWCCA 140, RA Hulme J set out a series of often quoted factors relevant to the assessment of objective seriousness in cases of this type. In R v Hutchinson [2018] NSWCCA 152, at [45], His Honour took the opportunity to revise the list of potentially relevant matters that may bear upon the assessment of the objective seriousness of offences concerning the possession, dissemination or transmission of child pornography and child abuse material. That revised and non-exhaustive list, which is more extensive than identified in R v De Leeuw (supra), is as follows:

i.   Whether actual children were used in the creation of the material.

ii.   The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

iii.   The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

iv.   The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

v.   In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in R v De Simoni (1981) 147 CLR 383.

vi.   In the case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

vii.   Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

viii.   The proximity of the offender’s activities to those responsible for bringing the material into existence.

ix.   The degree of planning, organisation, sophistication and or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.

x.   The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.

xi.   Whether the offender acted alone or in a collaborative network of like-minded persons.

xii.   Any risk of the material being seen or acquired by vulnerable persons, particularly children.

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

xiv. Any other matter in section 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for state offences) or section 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

103. In R v Porte [2015] NSWCCA 174 at [66]-[69] Johnson J observed that the possession of child pornography material creates a market for the continued corruption and exploitation of children; that the possession of child pornography is not a victimless crime; and that harm is ongoing because the material remains in circulation on the internet. These remarks have equal application in considering the violent and depraved material depicting the torture and death of children possessed by this offender.

104. Other factors that have been held relevant in the assessment of objective seriousness of offences of this type and which have relevance in the circumstances of this case include the following:

1. The degree of obvious physical harm, fear or distress in the victim and the nature and content of the images: Taylor v The Queen [2015] TASCCA 7 at [29]. Here, there is obviously a heinous level of physical harm occasioned to certain of the children depicted, and the level of that harm is important in determining objective seriousness.

2. The length of time the material was possessed by the offender. In this case there is no evidence which allows me to conclude how long the offender possessed the material and accordingly I will sentence him on the basis he possessed it relatively briefly.

3. Whether the offending is aggravated by an offender paying to acquire the material, noting the fact an offender does not pay for child abuse material does not mitigate the offending: R v Coffey [2003] VSCA 155 at [552]. The facts are silent as to this aspect and I will sentence the offender upon the basis he did not pay to acquire the material.

4. The fact an offender did not himself cause actual harm to real children does not mitigate culpability: R v Cook [2018] TASCCA 20 at [44].

105. The offending committed as both a juvenile and an adult concern child abuse material which falls into two distinct categories. There are images of both child pornography, and images involving the physical abuse, torture, mutilation and death of children. As to the second of these, one cannot lose sight of the fact that they involve images of gross violence, including babies under the age of 12 months with significant wounds to their heads, along with an image of two babies hanging from nooses tied to a ceiling. The material also includes videos of children of varying ages being violently assaulted, restrained and set on fire, and executed. These are images of real children who had been physically violated and abused in a way I have struggled to comprehend. To contemplate the treatment of children in this way by other human beings is to despair at the capacity for individuals, somewhere in the world, to visit wicked cruelty upon vulnerable and innocent children.

106. While the overall number of images possessed by the offender both as a juvenile and an adult is less than the court sometimes confronts in these types of cases, the gravity of the images and videos possessed by him as an adult, and especially those to which I have just referred, are of such extreme depravity as to markedly increase the objective seriousness of the offence contrary to s 91H(2) of the Crimes Act 1900. They are of a type which sets this case apart from other offending against that section. Despite the limited quantity, the nature of those images, coupled with his possession of what might sadly be described as more “typical” sexual child abuse material, means that in my assessment, the objective seriousness of this offence falls at a point above the mid-range for offences of its type.

107. In respect of the two Commonwealth offences committed as a juvenile involving the transmission of child-abuse material, I note the limited quantity of that material and the fact some, but not all, concern animated characters. I also bear in mind that the first transmission on 16 July 2019 was to four other participants in a chat room and the second transmission on 3 May 2020 was to thirteen other chat room participants. The fact the material was transmitted to more people in the second transmission makes that offending more serious. The transmission of the material within a collaborative network of chat room participants comprised of like-minded individuals also impacts upon the assessment of objective seriousness. I have finally concluded that the Commonwealth offences fall towards but not at the lower end of the range of objective seriousness for offences of their type, with the second such offence being at a slightly elevated level of seriousness than the first.

108. In sentencing for offences of this type I bear in mind that the subjective circumstances of an offender must not overshadow the objective gravity of the offending and there must be reasonable proportionality between the objective seriousness of the offending and the sentences imposed: CR v R [2020] NSWCCA 289 at [57], and that prior good character will generally be given less weight: R v Porte (supra) at [126].

General principles and objective seriousness of the destroy or damage property offences and the larceny offences

109. Offences contrary to both s 195(1)(a) and s 117 of the Crimes Act cover a wide range of offending behaviour and so it is here. Generally, the objective seriousness of property damage offending will be determined by the nature and extent of the damage inflicted, although all the circumstances are relevant, including the offender’s motivation and the degree of planning and/or premeditation. I note immediately that all the damage property offences involved a degree of premeditation and planning, albeit rudimentary and relatively unsophisticated.

110. The objective seriousness of larceny offences will be assessed primarily having regard to the value of the property stolen. The surrounding circumstances of the theft including the degree of planning and premeditation and the offender’s motivation are also relevant considerations.

111. The offending on 16 September 2019 concerned the smashing of 23 windows at the Mount Annan High School. The facts do not indicate the extent of the damage caused. Relevantly his conduct in smashing 38 windows and three doors on 21 – 22 May 2020, an offence to which I will shortly come, resulted in damage amounting to $7700 which the Crown submits was not significant. Given the lesser number of windows damaged and the Crown’s concession concerning the May 2020 offending, I will sentence him on the basis the damage caused on 16 September 2019 was both less than $7700 and not significant. The offender’s journal entry from 18 September 2019 concerning this incident contains not only reference to his own experience at the school but racially charged and prejudicial rhetoric about Jewish people. I am satisfied these attitudes motivated his conduct. This motivation by prejudice is also a statutory aggravating factor pursuant to s 21A(2)(h) of the Crimes (Sentencing Procedure) Act. I have assessed the objective seriousness of this offence as falling at a point below the mid-range for offences of its type but not at the bottom of the range.

112. The larceny offence from 10 November 2019 involved the offender entering a vehicle in the early hours of the morning and stealing $20 and a knife valued at $40. The offending appears impulsive, and the offender immediately decamped when confronted. In my view the objective seriousness of this offence falls towards the bottom of the range for offences of larceny.

113. The offending on 5 and 6 February 2020 involved damage to the Stolen Generations Memorial at Mount Annan Botanical Gardens with a pickaxe causing damage in an amount of $120,000. On any view, this is a substantial quantum of damage. This damage, and his subsequent stealing of plaques of deceased aboriginal people from this memorial between 1 and 2 May 2020, and their subsequent retention as a type of trophy or memento, cannot be explained other than as motivated by the offender’s racism and prejudice against aboriginal people. Indeed, when making a journal entry on 25 May 2020 concerning the stealing of the plaques, the offender described an abiding and deep-seated hatred/contempt of Australia’s first people. Such an attitude is totally unacceptable to right thinking Australians, is a blight on our community and sets back the steps our nation has taken towards reconciliation between all Australians. Those steps importantly include our government’s apology to the Stolen Generation, whose obvious and undoubted hardship and extreme trauma are marked by the memorial which the offender first damaged, and then stole from. His attitude is again a statutory aggravating factor pursuant to s 21A(2)(h) of the Crimes (Sentencing Procedure) Act in respect of both the damage and larceny offences and must be clearly and emphatically denounced by this Court. The inevitable harm and grave offence caused to aboriginal people by the offender’s conduct must be acknowledged and cannot be understated.

109. Given these matters, I have assessed the objective seriousness of the damage to the Stolen Generations Memorial at a point above the mid-range of objective seriousness for offences of its type, and the larceny offence concerning the plaques being removed from the memorial, at about the mid-range of objective seriousness for offences of its type. This is notwithstanding the modest replacement value of the plaques stolen.

110. The damage property offences from 21 – 22 May 2020 (to which I earlier referred) and 14 June 2020, involve the offender again attending at the Mount Annan High School. On the first occasion he smashed 38 windows and three doors causing damage in an amount of $7700. An entry in his journal concerning this offence makes further reference to Jewish people so again enlivening s 21A(2)(h) as an aggravating factor on sentence. As I have already noted, the Crown submitted this damage was not significant, and I will sentence him on that basis. I have assessed the objective seriousness of the 21-22 May 2020 offence at a point below the mid-range of objective seriousness for offences of its type but not at the bottom of the range.

111. The damage property offence from 14 June 2020 involved the use of a crowbar to destroy 12 light fittings in various locations throughout the school and to damage a mural within the school grounds. It also involved the offender in turning on gas bottles and leaving them on, causing a risk of other harm. The facts do not provide any particulars as to the amount of damage occasioned and I will proceed upon the basis that it was not substantial. I have assessed the objective seriousness of this offence as falling towards the lower end of the range for offences of this type.

General principles and objective seriousness of the intimidation offences

117. Offences of intimidation can cover a wide range of behaviour. It is an offence of specific intent. That is, the offender has conceded by his plea of guilty that in conducting himself in the way he did towards the two young girls he was intending to cause them fear, or at the very least knew that his conduct was likely to have that effect. His behaviour in approaching two young girls as he did and inviting them to play with him is unusual and disturbing. The fact he was in possession of a knife adds to the disturbing nature of his conduct, which I note took place sometime after 7:00pm on an evening in the middle of July when it would have been dark. That having been noted, there is no suggestion that the knife was produced by the offender in the presence of the two young girls or that they were aware he was in possession of it. While there are two offences for which a penalty must be imposed, there is clear overlap in the factual matrix giving rise to each, and this is something I will take into account. I am unable to be satisfied beyond reasonable doubt the offender intended other than to scare the children in the way set out in the agreed facts. That being the case, and as conceded by the Crown, these offences fall towards the bottom of the range of objective seriousness for offences of its type.

Objective seriousness generally

118. An issue I have considered in my assessment of the objective seriousness of all the offences, concerns whether the offenders personal background and psychological/mental conditions, which I will shortly detail, mean that there is a reduction in his moral culpability and, as a result the objective seriousness of the offences. In DS v R; DM v R [2022] NSWCCA 156 at [63] to [96] Beech-Jones CJ at CL, considered the question of whether an assessment of an offender’s “moral culpability” was a necessary part of the determination of the objective seriousness of an offence. In doing so His Honour observed that “there is considerable support for the proposition that a causally related mental impairment may (my emphasis) reduce the objective seriousness of an offence,” but that it will not always do so. His Honour referred to his decision in Paterson v R [2021] NSWCCA 273 where he described objective seriousness and moral culpability as two separate but related concepts of importance to sentencing. He noted that objective seriousness involves an objective assessment of the seriousness of the crime and matters causally related to it, whereas moral culpability is concerned with an offender’s moral blameworthiness for an offence. He went on to reiterate what Johnson J had said in Tepania v R [2018] NSWCCA 247, that in assessing the objective seriousness of an offence regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It is the nature of the impairment, the circumstances of the offence and importantly, the degree of connection between those two aspects which will determine whether an offenders reduced moral culpability (if any) has the effect of reducing the objective seriousness of his or her offence.

119. For reasons to which I will shortly come when I consider the offenders subjective case, I am satisfied this is a case where the offenders overall moral culpability is reduced. I am further satisfied that his reduced moral culpability impacts upon and moderates my assessment of the objective seriousness of the offences for which a penalty must be imposed. This is because there is, in my assessment, some direct connection between his generally compromised circumstances and his offending.

The offender’s subjective case and mental health

120. Tendered in the offender’s case was a psychological report of Ms Megan Godbee dated 18 August 2022, a letter from Dr Suraj Samtani, psychologist dated 25 June 2019, an Affidavit of CZ, the offender’s father sworn 27 September 2022, and two Forensic Psychiatric reports of Dr Andrew Ellis dated 9 April 2022 and 29 August 2021 concerning the mental health impacts of COVID-19 on New South Wales inmates. A Sentencing Assessment Report from Community Corrections dated 24 June 2022 and a Background Report from Juvenile Justice dated 24 October 2022 were also provided to the court. A consideration of the offender’s subjective case is not without some difficulty and complexity.

121. Ms Godbee’s report, the affidavit of the offender’s father and the Juvenile Justice Report provide a considerable amount of detail in respect of his background. The offender is the eldest of 2 children born to his parent’s union. The offender grew up and attended school in Mount Annan, living with his hard-working and pro social parents, younger brother and maternal grandmother in the family home. He remained living with them until entering custody for the offences he is being sentenced for today. His grandmother, with whom he is reported to have had a close relationship passed away while he has been in custody. He reported to Ms Godbee feeling loved and safe in the family home. The home was stable, and he had the benefit of caring and supportive parents. There is no evidence of family dysfunction, disadvantage, abuse or trauma such as the Court sometimes sees when young people, the age of this offender, come before it for sentence in respect of serious criminal behaviour. He has had no prior engagement with the criminal justice system. The affidavit of his father, the Sentencing Assessment Report and the presence of his parents in Court on each occasion the matter has been before me, confirm he continues to enjoy their unreserved support. Unsurprisingly they want him to return home as soon as possible. His younger brother has autism, and the offender was similarly diagnosed when he was 18 years of age. He is described as having a heightened sex drive and as someone who uses sexual release as an emotional coping strategy. He has no friends in the community. The only friend he has is someone he met online. That person lives in New Zealand and the offender has never met him in person.

122. The offender initially attended Mount Annan Public School. His level of intellectual functioning was assessed there as being in the high average range compared to peers his own age. After primary school he was enrolled for year 7 at Campbelltown Performing Arts High School. He had difficulty adjusting to high school and was bullied at a school camp following which he exited the school and enrolled at Mount Annan High until year 10. He did not enjoy attending school. Indeed, he told the author of the Juvenile Justice Report that “he hated school” and “it was my prison”. He had difficulties learning and making meaningful friendships, describing himself to Ms Godbee as a “a very dumbass kid who couldn’t relate to anyone”. His parents believe that he was bullied at high school. He told Ms Godbee he struggled with mental health issues and particularly anxiety from the age of 13. These related to attending school and social interaction generally, causing him to isolate from his peers. He described feeling worthless, having reduced concentration, a disrupted sleep schedule which often resulted in him leaving the family home in the early hours of the morning, fatigue, reduced appetite and thoughts of suicide from age 13. He told Ms Godbee he became engaged in sexual behaviour at the age of 8 which she describes as “an early onset of sexual behaviour”, and further that he commenced to access pornography at age 11.

123. The offender told Ms Godbee he began misbehaving and being generally disruptive at school from year 8. He refused to complete schoolwork and became aggressive. He reported he would respond to ongoing bullying at school with aggression and violence as a form of retaliation, and as a result told Ms Godbee he was suspended on approximately 12 occasions. The Juvenile Justice report indicates the offenders school records at the time report him placing Nazi symbols on his classwork and making racist comments regarding Jewish people or people of colour. Sadly, the racist attitudes exhibited in some of his offending are of some duration. He is also reported to have made inappropriate sexual gestures and comments. These included him harassing a teacher and commenting that he wanted to complete a sexual act with her and then strangle her with her lanyard. School counselling records indicate concerns regarding the offender’s deteriorating mental health during years 8 to 10. It does not appear to be a matter of dispute that throughout his adolescence, the offender became increasingly isolated and antisocial, particularly in the school environment.

124. His father indicates that he struggled with depression for about 12 months prior to being diagnosed with that illness in May 2018. He is reported to have had thoughts of suicide. From about that time he received 11 sessions of cognitive behavioural therapy provided by Dr Suraj Samtani, psychologist of Camden. On the advice of Dr Samtani the offender commenced to keep the journal police later discovered, parts of which contain the disturbing content earlier set out in this judgment.

125. Unfortunately his attendance at school continued to reduce and after an incident in year 10, where he threatened to “shoot up the school”, he ceased attending entirely. After leaving school he has not engaged in any employment and reported to Ms Godbee spending most of his time using the internet to make YouTube videos, write stories and diary entries, and going for walks. He told the author of the Sentencing Assessment Report that he has an interest in attending TAFE in the future to assist him in gaining skills for employment. Positively, he has expressed interest in obtaining skills in electrical engineering.

126. The offender told Ms Godbee that he first commenced to consume alcohol at the age of 14. Her report indicates he described a pattern binge drinking up to 8 drinks every two weeks. He normally did this alone in his bedroom, or while talking to people online. The offender told Ms Godbee that he normally drank alcohol when he was bored. There is no other reported history of substance abuse and no suggestion that his offending is in any way related to it.

127. At the age of 18 he was diagnosed with high functioning Autism. Ms Godbee had access to an assessment report confirming this diagnosis however this report, for whatever reason, was not provided to the court. She notes it indicated the offender “has difficulties with socio-emotional reciprocity, relationships, communication, as well as restricted interests, unusual reactivity to sensory input/loud noises and stereotyped behaviours”. Ms Godbee notes the offender’s presentation during interview was consistent with his diagnosis of autism. There were recommendations made in the assessment report for NDIS/Centrelink funding for the offender, psychological treatment to assist with his interpersonal skills, and support to continue education or enter the work force. The offender was arrested shortly after this assessment and these recommendations were not implemented. Ms Godbee reports that during her assessment he indicated he is not presently interested in engaging in any interventions as he does not believe he currently requires treatment or support and has no current mental health concerns. So that it is clear, the opinion of the offender is not one with which I agree. I note the offender expressed a different attitude to the author of the Sentencing Assessment Report, where he indicated a willingness to undertake interventions to address his offending behaviour and risk factors.

128. His history of depression and his diagnosis of autism spectrum disorder mean that I must consider principles concerning the taking of mental health conditions into account on sentence. These are well-known and call for “a sensitive discretionary decision” that has regard to the particular circumstances of the case: R v Engert (1995) 84 A Crim R 67. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177-178], the relevant principles concerning these matters were gathered together by McClellan CJ at CL. He there said (with citations omitted):

177.“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: … They can be summarised in the following manner:

•   Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

•   It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

•   It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

•   It may reduce or eliminate the significance of specific deterrence.

•   Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: …

178. I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.”.

129. I am satisfied on balance that the offender was suffering from a not insignificant mental condition/disorder at the time of his offending and that this impacted upon his conduct such as to warrant it being taken into account as part of the instinctive synthesis. It means that his moral culpability is moderated, and he is a less appropriate vehicle for general deterrence than might otherwise be the case. Further, I will have regard to the fact that his autism is likely to mean a custodial sentence will weigh more heavily upon him.

130. Ms Godbee notes the offender tended to minimise the seriousness of his offending behaviour. This is a matter of concern. He apparently explained that due to his social difficulties he spent a lot of time interacting with people online and agreeing with their extremist beliefs was an easy way for him to feel accepted, but that he does not actually endorse those beliefs. Ms Godbee observes, and I accept, that his offending behaviour does indeed suggest that he holds racist beliefs and has acted upon them. It also appears plain that he has held these racist attitudes for some time. As she notes, he was alone when he engaged in the offending where racist attitudes were exhibited, indicating he was not under direct peer influence at that time.

131. The author of the Sentencing Assessment Report notes the offender has limited insight into the seriousness of his offending but that his period on remand has provided him with some appreciation as to the gravity of the situation in which he finds himself, and of the impact his offending has had on the community. His behaviour in custody has been satisfactory and he has not incurred any institutional misconduct charges. He expressed to several persons who prepared reports for the court that he did not know at the time what he was doing was wrong or illegal. This attitude is consistent with a level of immaturity and naïveté. While I am not able to precisely determine the extent to which this immaturity impacted upon his offending, I am satisfied that it did to some extent at least.

132. The offender reported to Ms Godbee an interest in survivalism, the military, and weapons. She is of the view this is concerning given the violent attitudes towards others he has expressed in the past.

133. At paragraphs 33 and 34 of her report Ms Godbee observes:

“I have significant concerns related to Mr [Z]’s pattern of offending behaviour, the attitudes he expressed in his diary, and his lack of insight and motivation for intervention regarding these concerns. The first area of concern is related to his sexual offending. Mr [Z] has accessed child abuse material featuring sexualised torture, he approached two girls in a public place while in possession of a knife, and he went to the home of a young woman that he described being attracted to and wanting to harm. His behaviour is indicative of a deviant interest in sexual torture and he has approached potential victims on two occasions. The second area of concern is Mr [Z]’s general interest in firearms, military paraphernalia, and survivalism. The third area of concern relates to Mr [Z]’s attitudes towards Muslim, Jewish and Aboriginal people. His diary entries referred to a desire for these people to die to make the world a better place, and Mr [Z] has engaged in acts of aggression such as destroying memorials and setting fires.”

“I note that Mr [Z] has not engaged in detected physical violence towards another person but his behaviour is consistent with many of the ‘warning signs’ for future violence outlined in the research literature. The relevant warning signs in Mr [Z]’s case include time spent planning and gathering materials for his offences (such as discussing a plan to obtain gasoline as a fire accelerant), mental disorder (Autism), a history of suicide attempts, grievances (such as his attitudes towards school), behaviour based on ideology, constructing a form of documentation that detailed the motivations for his behaviour (the videos and diary), problems with relationships, and collecting weapons”.

134. I accept the opinions expressed in these paragraphs by Ms Godbee and share her concerns. These are all matters which enliven for the Court’s consideration in sentencing, issues of community protection and what the Crown describes as the “future dangerousness” of the offender, an issue to which I will return. In reaching my conclusion I have had regard to the Sentencing Assessment Report which indicates that New South Wales Corrective Service psychologists have advised the offender is presently a low risk of sexual re-offence. To the extent there is conflict between that opinion, and the opinion of Ms Godbee, then I prefer Ms Godbee’s opinion, it having been formulated following a clinical interview with the offender, whereas the opinion set out in the Sentencing Assessment Report, as is typically the case, based entirely upon the perusal of written material.

134. He is reported to have a general propensity towards thrill seeking behaviours and has struggled to regulate feelings of boredom. Ms Godbee opines that these features may have led him to become bored with mainstream pornography and sexual fantasies leading to an interest in “shocking” content. Plainly enough, some of the child-abuse material possessed by the offender falls into that category.

135. Ms Godbee’s report notes the offender’s undiagnosed autism impacted his interpersonal functioning, resulted in depression and lead to him disengaging from school and peers, instead spending his time on online forums which promoted hatred, extremist views, violence and antisocial behaviours. She opines that it is related to the offences for which he is to be sentenced in several ways. She says his social difficulties left him isolated and vulnerable to adopting the radicalised beliefs of social groups online to “fit in”. His social difficulties have also contributed to him being unable to develop protective relationships with peers or girlfriends and this has contributed to his grievances towards others. Finally, his lack of empathy and poor capacity to understand the seriousness of his actions and their consequences are also likely to have contributed to his offending. The author of the Juvenile Justice Report similarly concludes, noting the offender’s autism “appears to be a factor contributing to his offending behaviour”. He further notes “Potentially due to his un-diagnosed ASD [KZ] may have been more susceptible to obsessive participation in the online antisocial content he was exposing himself to and which directly influenced his offending behaviour”. I am prepared on balance to accept these opinions as to the link between his autism and his offending. I have earlier noted that I have also taken this link into account in my assessment of the offender’s moral culpability and the objective seriousness of the offending.

136. Ms Godbee observes that there are few protective factors to identify in the offender’s case. She notes that while his family are pro social and supportive, this support was in place at the time of the offending and was not able to deter it. Balanced against this, is the fact his parents are now fully appraised of the extent of their son’s criminal behaviour and are ready, willing and able to assist him with his rehabilitation upon release. As I have earlier remarked, this support is apparent from their attendance at Court on each occasion the matter has been before me. In Ms Godbee’s view, and this is an opinion with which I agree, the offender requires intensive intervention to address his radicalised beliefs, decrease his sexual interest in deviant material, and improve his social functioning and emotional coping skills. The author of the Juvenile Justice Report has come to a similar view, noting the offender now says he considers his radicalised ideology to be unacceptable, and not something he any longer endorses. The affidavit of his father, in respect of which he was not cross examined, provides some support for this, when it refers to the offender making friends with people from different ethnic backgrounds and cultures since being in custody.

137. Obviously, the level of intervention the offender requires will not be provided by his parents alone, and the assistance of Community Corrections will be pivotal to his prospects of rehabilitation and his risk of reoffending. The Juvenile Justice Report recommends that he undertake further psychological assessment concerning sexualised behaviour and extreme views, and that these be a component of future treatment. I agree with this recommendation.

Sentencing young offenders and the importance of youth

139. An important aspect of this sentencing task involves a consideration of the age of the offender at the time the offences where committed, and how his youth impacts on the overall sentence to be imposed. The relative importance of youth as a factor in sentencing is determined by the circumstances of the individual case: CW v R [2022] NSWCCA 50 at [64]. At the time of the offending, he was aged between 16 years and 2 months and 18 years and 4 months. He was then and is now, a very young man.

140. It is to be emphasised that the criminal law in Australia treats young people differently to adults who commit criminal offences, and while the offender was an adult so far as the law is concerned at the time of the offences on 18 July 2021, he had barely obtained his majority. It is well recognised that the youth of an offender and their relative immaturity can impact upon the sentencing process, particularly where that immaturity plays some role in the offending. While matters of general deterrence and principles of retribution are important in this sentencing task, they must be considered and weighed in light of the immaturity of the offender, and the importance of fostering rehabilitation.

141. In Sarhene v R [2022] NSWCCA 79, Hamill J at [25] provided the following summary of some of the relevant principles in sentencing young offenders (with citations omitted):

• There is no doubt that the youth of an offender is a relevant factor, or a “most significant factor” in assessing what sentence should be imposed.

• Considerations of general deterrence may be less significant when sentencing a juvenile or young offender.

• Rather, emphasis should be placed on “the need to provide an opportunity for rehabilitation”.

• While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; “emotional maturity and impulse control develop progressively during adolescence and early adulthood.”

• Where “immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”

• An offender’s youth and immaturity is also relevant to an assessment of their moral culpability.

• In some cases, where the young offender is said to have committed an “adult crime” or “conducted him or herself as an adult might”, the significance of youth, or the weight to be afforded to it, has been held to be less.

• However, courts should not “be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult.”

142. The law recognises that there is a substantial public interest in the rehabilitation of young offenders and that immaturity is relevant to the assessment of culpability and/or criminality. This is because children and young adults, often do not make adult value judgments, have adult experience or an adult appreciation of consequences: MS2 & Ors v R [2005] NSWCCA 397 per Adams J.

143. In Howard v R [2019] NSWCCA 109, Fullerton J with whom Macfarlan JA agreed, made several pertinent observations. In that case, the applicant had committed the offence for which he had been sentenced in the District Court 27 days after his 18th birthday. Here, the adult offending occurred three months after the offender’s 18th birthday. In Howard, Her Honour held that it was appropriate to have regard to the operation of s 6 of the Children (Criminal Proceedings) Act 1987, and the special principles applicable in the sentencing of children. Like considerations apply in this case. The way those principles apply will depend upon the nature of the offending, as well as the age and personal circumstances of the person being sentenced. Her Honour noted at [13]:

“It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person’s mid- 20s”.

144. Relevantly, s 6 of the Children (Criminal Proceedings) Act 1987, is in the following terms:

6   Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a)   that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b)   that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)   that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)   that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)   that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f)   that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)   that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h)   that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

145. As Hamill J observed in CW v R (supra) at [63], “There is no ‘bright line’– that is, an offender’s 18th birthday – that determines the application of sentencing principles relating to young offenders”, and “chronological age does not dictate maturity”.

146. In Miller v R [2015] NSWCCA 86, Schmidt J reiterated the well-recognised principle that the capacity for young people to reform and mould their character to conform to society’s norms is usually greater than that of an older offender. In the result, considerable emphasis has been placed on the need to provide young offenders with the opportunity for rehabilitation. In that case, the appellant was 20 years old.

147. Her Honour went on to observe it is well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person, to contribute to their breach of the law. Of course, the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. Here, it is also relevant to note the link between the offenders undiagnosed autism spectrum disorder and his offending.

148. In R v Tran (2002) 4 VR 457; [2002] VSCA 52 at [14] Callaway JA observed that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. At the same time, his Honour emphasised that there are cases where just punishment, general deterrence, and other sentencing objectives carry at least equal importance. In Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372 at [44] it was noted that whilst, as the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigatory effect of an offender’s youth, it is only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation, that the mitigatory consideration of youth is viewed as being all but extinguished. In my view, this offending while undoubtedly very serious, does not fall into that category.

149. These general sentencing principles concerning young people are important considerations in this sentencing task and I will have regard to them as part of the instinctive synthesis. The offender’s age and obvious immaturity, especially when viewed in the context of his then undiagnosed autism, mean they have considerable work to do. In giving effect to this, I note the gravity of the possess child abuse material offence is of a type which means the extent the offenders youth operates favourably for him in the determination of sentence for that offence, is less than might otherwise be the case.

The issue of “future dangerousness”

150. Tendered in the Crown case was the report of Dr Jeremy O’Dea a well-known and highly regarded forensic psychiatrist, dated 23 November 2022. In commissioning this report the Crown provided Dr O’Dea with the agreed facts, a copy of the offender’s electronic journal, a copy of the school records at Mount Annan Public School, the Sentencing Assessment Report, the report of Ms Godbee and the report of Youth Justice New South Wales. Dr O’Dea was asked to comment upon the offender’s risk of reoffending and any ongoing danger he poses to the community.

151. Dr O’Dea fairly noted that his opinion is limited given he has not examined the offender. He also noted that the prediction of risk and an individual’s level of dangerousness “remains a difficult, controversial and imprecise endeavour in psychiatry”. He observed this is particularly so in the case of young people with limited criminal histories such as the offender, and further that even if he had undertaken a formal psychiatric assessment, the exact nature and extent of the offender’s risk of future violence and dangerousness would be difficult to predict with accuracy.

152. Dr O’Dea observes that certain of the offender’s conduct involves “potentially pre-cursory behaviours to physical harm to others”, and that the content of the offender’s journal indicates elements of rehearsal and an escalation of his offending, while noting that it is not clear to what extent he has gained insight into his conduct or changed the views expressed in his journal.

153. Dr O’Dea opines that the offender “has a number of historical risk factors for future general, physical and sexual offending including; a history of violence as an adolescent; limited social connectivity; no employment since leaving school; a history of alcohol abuse; a history of mental disorder including Autism Spectrum Disorder and significant anxiety and depression; a history of at least antisocial behaviours; a history of violent attitudes; a history of sexual deviance; and his history of offending behaviours.” He goes on to suggest that the presence of these risk factors in the context of the offences point to the offender having a significant risk of future physical and/or sexual offending that would require further assessment and management. His view is consistent with that of Ms Godbee who, as I have earlier observed described his behaviour as consistent with many of the “warning signs” for future violence outlined in the research literature.

154. Dr O’Dea finally recommends that the offender undergo a full forensic psychiatric risk assessment with preparation of a comprehensive and structured psychiatric treatment and risk management program based on his clinical needs. Whether such an assessment is undertaken while the offender remains in custody will be a question to be resolved by Corrective Services authorities, although I will direct that Dr O’Dea’s report and the other reports tendered in these proceedings be provided to those authorities.

155. Predicting future dangerousness is, as Dr O’Dea has noted, a difficult task, although it, and the likelihood of reoffending do not need to be established beyond reasonable doubt in this sentencing exercise. Here, I am satisfied the evidence permits a conclusion that there is a risk of future reoffending. I note the Sentencing Assessment Report concludes the offender is a medium to low risk of reoffending. To the extent of any difference in assessment as between the author of the Sentencing Assessment Report and Ms Godbee and Dr O’Dea, then having regard to their respective expertise, I prefer the opinions of Ms Godbee and Dr O’Dea. In considering the protection of the community, as I must by virtue of s 3A of the Crimes (Sentencing Procedure) Act, I will as part of the instinctive synthesis, take into account the risk assessment of both Dr O’Dea and Ms Godbee. I also bear in mind that general sentencing principle dictates the sentence ultimately imposed should not go beyond what is proportionate to the offending, so as to amount to a type of preventative detention. This young man must be sentenced for what he has done, not for what he may do at some point in the future. In making this value judgment as to what is an appropriate sentence, I will have regard to all the purposes of sentencing, including the protection of the community.

Prospects of rehabilitation

156. In assessing his prospects of rehabilitation I will have regard to the opinions of Ms Godbee and Dr O’Dea to which I have just referred, along with his clear need for intensive supervision, treatment and guidance in the community, the ongoing support he enjoys from his parents and his youth. Like so many other young people who commit serious offences and come before this Court, his prospects of rehabilitation will be largely dependent on his willingness to undertake the intensive interventions which have been recommended by all those who have prepared reports for the court. I would presently assess his prospects of rehabilitation as laying somewhere between guarded and reasonable.

Section 16A Crimes Act (Cth) factors

157. The appropriate sentences for the two use carriage service to transmit child-abuse material offences, are to be determined, at least in part, by reference to s 16A of the Crimes Act (Cth). Relevantly in the circumstances of this case, I will have regard to the following sub sections:

(a)   the nature and circumstances of the offences; I have referred to this earlier in this judgment.

(c)   if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct; I am satisfied that the offender’s criminal behaviour in respect of the Commonwealth offences is part of a course of conduct in which he engaged and I will have regard to that fact.

(d)   the personal circumstances of any victim of the offence; I have referred earlier in this judgment to the impact upon child victims of offending of this type, and it cannot be understated. Such offending typically occurs in undeveloped and disadvantaged countries and the harm done to those children is profound and repeated on every occasion that the child abuse material is viewed.

(e)   any injury, loss or damage resulting from the offence; as I have just noted these are substantial.

(f)   the degree to which the person has shown contrition for the offence; I am satisfied that the offender has, by virtue of his plea of guilty and having regard to his developing insight, shown some remorse and contrition.

(g)   the fact of the offender’s pleas of guilty, the timing of those pleas and the benefit to the community as a result; as I indicated at the commencement of this judgment I propose to allow the offender a 25% discount to reflect the utilitarian value of his pleas.

(h)   the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; I accept that the offender cooperated with police following his arrest.

(j)   the deterrent effect that any sentence under consideration may have on the person; I am satisfied that the sentence to be imposed for the Commonwealth offences will serve, to the extent necessary in the circumstances of this case, the purpose of specific deterrence.

(ja)   the deterrent effect that any sentence under consideration may have on other persons; I am satisfied that the sentence to be imposed for the commonwealth of offences will serve the purpose of general deterrence, it being the primary consideration in sentencing for matters of this type.

(k)   the need to ensure that the person is adequately punished for the offence; I am satisfied that the sentence to be imposed will provide adequate punishment for the offender.

(m)   the character, antecedents, age, means and physical or mental condition of the person; I have made detailed reference to these matters earlier in this judgment.

(n)   the prospects of rehabilitation of the person; I have referred to this earlier in this judgment.

COVID-19

158. Our community remains in the middle of a global health pandemic. New strains of COVID-19 continue to emerge causing ongoing health and social dislocation. Custodial environments are not immune to the health risk posed by COVID-19, and the virus has, despite the best efforts of authorities, entered our jails. For obvious reasons given the nature of the custodial environment there are difficulties in controlling the spread of the virus. Face-to-face visits to inmates have been suspended for much of the time the offender has been on remand, so reducing his ability to remain engaged with his family. Extended periods of isolation have become more common and there are fewer work opportunities for inmates and many less programs available for inmates to undertake. In addition, periods of isolation are likely to cause a greater burden on young inmates such as this offender who are serving their first custodial sentence and have no previous experience of the criminal justice system. COVID 19 has meant that the experience of custody has become more onerous, and this is a matter that I will consider favourably for the offender as part of the instinctive synthesis.

Totality

159. Considering principles of totality, this is a matter which lends itself well to the imposition of aggregate sentences pursuant to s 53A of the Crimes (Sentencing Procedure) Act, and I propose to proceed in that way. Even though two of the twenty-one offences for which sentences are to be imposed are Commonwealth offences, I can deal with all of them in this way: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]. What I cannot do is aggregate both the Commonwealth and the State offences within a single sentence. Accordingly, because I intend to impose aggregate sentences, it will be necessary for me to impose two separate aggregate sentences, one in respect of the Commonwealth offences and another in respect of the State offences.

160. In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] ff, with whom Johnson and Price JJ agreed, set out the relevant principles in respect of totality. In brief summary they are:

• Whenever a Court sentences an offender for multiple offences, such as is the case here, it is necessary for the judge to ensure that the aggregation of all the sentences is a “just and appropriate measure of the total criminality involved”.

• The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. The first is that the severity of a sentence is not simply the product of a linear relationship. Severity may increase at a greater rate than an increase in the length of a sentence. The second is the proposition that an extremely long total sentence may be “crushing” upon an offender in the sense that it will induce a feeling of hopelessness and impact adversely on such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, an offender may not be entitled to the element of mercy entailed in adopting such a constraint.

• A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is a discount for multiple offending.

Is any penalty other than imprisonment appropriate?

161. Dealing firstly with the two Commonwealth offences and in accordance with s 17A(1) of the Crimes Act (Cth), I am satisfied having considered all other available sentences that nothing other than a sentence of full-time imprisonment is appropriate.

162. I have come to a like view in respect of most but not all the state offences. In my assessment, the threshold prescribed by s 5 of the Crimes (Sentencing Procedure) Act has not been crossed in the following offences:

1. the break and enter offence at Mount Annan Primary School on 21 May 2019 where the offender stole a yellow frisbee, a travel mug with a lid and three pencils. I note this was the offence first in time with which the offender has been charged, in circumstances where he had no criminal history and where no damage was occasioned to the school,

2. the larceny offence on 10 November 2019 when the offender opened the door of a motor vehicle and stole property valued at $60, and

3. the offence of possessing ammunition without authority where the maximum penalty is a fine of 50 penalty units.

4. the offence of carrying a cutting weapon upon apprehension referred to this Court on a s 166 Certificate.

163. In these four matters and having regard to the other penalties which are to be imposed, I will shortly make orders providing convictions be recorded but that, pursuant to s 10A of the Crimes (Sentencing Procedure) Act, there be no further penalty. In all other state offences I am satisfied the s 5 threshold has been crossed and that no penalty other than imprisonment is appropriate, and that such sentence must be served in full-time custody.

Special circumstances/minimum term to be served

164. It was submitted by Mr McKenzie that I would make a finding of special circumstances for the offender in respect of the state offences. The primary consideration in such a finding is the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrent to him and others.

165. Unlike state offences, there is no statutory ratio prescribed for the minimum period an offender must serve in custody following sentence for a Commonwealth offence. I must impose a sentence for those two matters of a severity appropriate in all the circumstances. In determining that period, the objective gravity of the offending, the interests of the community and the purpose of fostering rehabilitation are, amongst other considerations, all to be taken into account.

166. The length of the Commonwealth sentence imposed determines whether I may or must impose a recognisance release order, or a non-parole period. If the sentence imposed does not exceed 6 months, I may impose a recognisance release order. Relevantly in the circumstances of this case, if the sentence imposed is between 6 months and 3 years (as it will be), then I must impose a recognisance release order, unless I am satisfied that such an order is not appropriate given the nature and circumstances of the offence or offences concerned, the antecedents of the offender, or because the offender will be serving a state sentence on the day after the end of the Commonwealth sentence (s 19AC(4) Crimes Act (Cth)). It is my intention to impose a fixed term of imprisonment for the Commonwealth offences, and for that sentence to commence first in time and to date from 8 September 2021. Given the term I regard as appropriate, I do not intend to impose a recognisance release order as the offender will be continuing to serve an aggregate sentence of imprisonment for the state offences at the time the fixed aggregate term of imprisonment for the Commonwealth offences expires.

167. In concluding a fixed term of imprisonment is appropriate for the Commonwealth offences, and in compliance with s 16A(2AAA) of the Crimes Act (Cth), I have had regard to the offenders need for rehabilitation and treatment. I am satisfied that the structure of the sentence to be imposed for the state offences will provide sufficient time for the offender to undertake such rehabilitation or treatment program as may be recommended.

168. Generally, the reform of the offender will often be the purpose in finding special circumstances for state offences, but this need not be the only purpose. Here, I am satisfied that both the offender and the community will benefit from him having an extended period of supervision on parole. This will not only assist his reintegration into the community and promote his prospects of rehabilitation but will also allow time for the intensive interventions he requires to be undertaken. The fact this is required is abundantly clear from the subjective material tendered in the offender’s case and to which I have earlier made reference. I also have regard to his youth and the fact this is his first time in custody. All these matters viewed in combination satisfy me that a generous finding of special circumstances should be made in respect of the state offences.

The indicative sentences

169. As aggregate sentences are to be imposed it is necessary for me in accordance with the statutory scheme to note the indicative sentences that I would have imposed had I not determined to proceed in this way. The indicative sentence for each offence is arrived at having regard to the objective seriousness of the offending, all aspects of the offender’s subjective case and the need to give effect to the purposes of sentencing generally. The 25% discount to reflect the utilitarian value of the offender’s pleas of guilty are to be applied to these indicative sentences.

170. The indicative sentences I regard as appropriate are as follows:

(A)   Commonwealth offences committed as a juvenile

(i)   Use carriage service to transmit child-abuse material on 16 July, 2019 (H83247948 – sequence 18) a sentence of 8 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 6 months imprisonment.

(ii)   Use carriage service to transmit child-abuse material on 3 May, 2020 (H83247948 – sequence 19) a sentence of 12 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 9 months imprisonment.

(B)   State offences committed as a juvenile and an adult

(i)   Destroying or damaging property at Mount Annan High School on 16 to 17 September 2019 (H83247948 – sequence 3) a sentence of 4 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 3 months imprisonment.

(ii)   Break and enter and commit serious indictable offence at Mount Annan High School on 18 September 2019 (H83247948 – sequence 4) a sentence of 12 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 9 months imprisonment.

(iii)   Break and enter and commit serious indictable offence at Mount Annan High School on 14 October 2019 (H83247948 – sequence 6) a sentence of 2 years imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 18 months imprisonment.

(iv)   Manufacture firearm without a licence or permit at Mount Annan between 22 and 23 January 2020 (H83247948 – sequence 9) a sentence of 8 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 6 months imprisonment.

(v)   Possess unauthorised firearm at Mount Annan between 22 January and 23 January 2020 (H83247948 – sequence 10) a sentence of 4 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 3 months imprisonment.

(vi)   Destroy or damage property at Mount Annan between 5 February and 6 February 2020 (H83247948 – sequence 12) a sentence of 20 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 15 months imprisonment.

(vii)   Enter land with intent to commit indictable offence to wit intimidation at Mount Annan on 11 February 2020 (H83247948 – sequence 13) a sentence of 16 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 12 months imprisonment.

(viii)   Larceny at Mount Annan between 1 May and 2 May 2020 (H83247948 – sequence 14) a sentence of 12 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 9 months imprisonment.

(ix)   Destroy or damage property at Mount Annan Primary School between 21 May and 22 May 2020 (H83247948 – sequence 15) a sentence of 6 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence after rounding down of 4 months imprisonment.

(x)   Destroy or damage property at Mount Annan Primary School on 14 June 2020 (H83247948 – sequence 16) a sentence of 4 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 3 months imprisonment.

(xi)   Possess child abuse material at Mount Annan on 18 July 2021(H83247948 – sequence 17) a sentence of 4 years imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 3 years imprisonment

(xii)   Intimidation at Mount Annan on 18 July 2021 (H84291184 – sequence 1) a sentence of 4 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 3 months imprisonment.

(xiii)   Intimidation at Mount Annan on 18 July 2021 (H84291184 – sequence 2) a sentence of 4 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 3 months imprisonment.

(xiv) Possess unauthorised pistol at Mount Annan on 18 July 2021 (H84291184 – sequence 4) a sentence of 16 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 12 months imprisonment. In accordance with s 54B(4) of the Crimes (Sentencing Procedure) Act I note an indicative non-parole period of 6 months imprisonment.

(xv) Possess unauthorised prohibited firearm at Mount Annan on 18 July 2021 (H84291184 – sequence 5) a sentence of 16 months imprisonment less 25% to reflect the plea of guilty making an indicative sentence of 12 months imprisonment. In accordance with s 54B(4) of the Crimes (Sentencing Procedure) Act I note an indicative non-parole period of 6 months imprisonment.

Conclusion

171. I have concluded in respect of the Commonwealth offences that an appropriate aggregate sentence of imprisonment is a fixed term of 12 months. It will commence on 8 September 2021 and accordingly has now expired. In respect of the state offences where indicative sentences have been noted, I have concluded an appropriate aggregate sentence of imprisonment is one comprising a total term of 5 years and 6 months and a non-parole period of 2 years and 9 months. In reaching this conclusion I have borne in mind the wide array of very serious offending before the court and have tried to balance that against the peculiarities of the offender’s subjective case and most significantly his very young age. As I noted at the commencement of this judgment, I have found this sentencing task a difficult one. In the exercise of my discretion the state sentence will commence after the expiration of 3 months of the now expired Commonwealth sentence, being on 7 December 2021. This will result in the offender serving a total period of 3 years in actual custody. I am mindful that this a significant period of actual incarceration to be imposed upon a young man but have concluded, given all the circumstances, that no lesser period is appropriate. I am also of the view that the lengthy period of supervision to which the offender will be subject is similarly appropriate and necessary.

Orders

172. The orders I make in this matter are as follows:

1. In each matter you are convicted.

2. In H832479481 sequences 1, 8 and 11 and H84291184 sequence 3, pursuant to s 10A of the Crimes (Sentencing Procedure) Act there will be no further penalty.

3. In H832479481 sequences 18 and 19, pursuant to s 53A of the Crimes (Sentencing Procedure) Act you are sentenced to an aggregate fixed term of imprisonment of 12 months commencing 8 September 2021. This sentence expired on 7 September 2022.

4. In H832479481 sequences 3, 4, 6, 9, 10, 12, 13, 14, 15, 16 and 17, and in H84291184 sequences 1, 2, 4 and 5, pursuant to s 53A of the Crimes (Sentencing Procedure) Act you are sentenced to an aggregate term of imprisonment consisting of a total term of 5 years and 6 months and a non-parole period of 2 years and 9 months each of which are to commence on 7 December 2021.

5. The indicative sentences are as noted earlier in this judgment.

6. You will be eligible for parole on 6 September 2024.

7. Your sentence will expire on 6 June 2027.

8. I direct that the psychologist report of Megan Godbee dated 18 August 2022, the report of Dr Jeremy O’Dea, forensic psychiatrist dated 23 November 2022, the report of Youth Justice NSW dated 24 October 2022 and the Sentencing Assessment Report dated 24 June 2022 be provided to the Department of Corrective Services and Justice Health.

9. I recommend that following a consideration of those reports the offender be provided with such psychiatric risk assessment and treatment as considered necessary by Justice Health.

Amendments

19 January 2023 - Paragraphs [120], [133] and [136] – anonymised names

Paragraph [170] – corrected paragraph numbering

Decision last updated: 19 January 2023