R v Lamey

[2025] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:

R v Lamey [2025] NSWDC 353

Hearing dates:

26/2/25, 25/3/25, 18/6/25, 9/7/25

Date of orders:

9/7/25

Decision date:

09 July 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Offender resentenced as follows:

Convicted and sentenced to an aggregate term of imprisonment of 9 years 7 months with a NPP of 5 years 6 months (13/3/24-12/9/29). I find special circumstances.

Indicatives:

Count 1 – 7 years 6 months

Counts 4, 5, and 6 – 3 years 3 months with NPP 1 year 10 months.

Count 7 – 3 years 4 months with NPP 1 year 10 months

Count 8 – 18 months with NPP 10 months

Count 9 – 19 months with NPP 10 months

Count 13 – 3 years.

Catchwords:

Crime – Resentencing – Maintain unlawful sexual relationship with a child

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Croxon v R [2017] NSWCCA 213

Eacott (a pseudonym) v R [2019] NSWCCA 158

R v Fisher [2024] NSWCCA 191

R v Lamey [2025] NSWCCA 17

R v LPCM [2025] NSWCCA 78

RA v R [2024] NSWCCA 149

Towse v R [2022] NSWCCA 252

Xerri v R [2021] NSWCCA 268

Category:

Sentence

Parties:

NSW DPP – Crown
Benjamin Lamey - Offender

Representation:

Mr C Young for Crown
Mr S Doupe for Offender

File Number(s):

19/320273, 20/160284

Publication restriction:

Statutory non-publication of the identity of the victim.

remarks on resentencing

1. The offender, Benjamin Lamey, was sentenced by me on 3 September 2024. That was in relation to eight counts on which he was found guilty by a jury after trial. I imposed an aggregate sentence comprising a head sentence of eight years, six months, with a non-parole period of four years, nine months.

2. One of the offences on which the offender was sentenced was count 1 and, in relation to that count, I nominated an indicative sentence of six years, nine months. That count was an offence of maintaining an unlawful sexual relationship with a child, that being an offence under s 66EA(1) of the Crimes Act 1900, which carries a maximum penalty of life imprisonment.

3. Subsequently, the Crown commenced appeal proceedings with respect to the overall sentence. That appeal was based on two grounds. The first ground was that I erred in principle in my approach to the determination of the objective seriousness of count 1. The second ground was that the overall sentence is manifestly inadequate.

4. The appeal was heard in the Court of Criminal Appeal on 9 December 2024 and a decision was delivered by that court on 21 February 2025: R v Lamey [2025] NSWCCA 17.

5. In that decision, the Court of Criminal Appeal concluded that it was not in a position to determine the manifest inadequacy ground number 2. However, the court allowed the Crown’s appeal in relation to ground 1, quashed the sentence and directed that the proceedings be remitted to me to be reheard, consistent with the findings of the court.

6. The proceedings were subsequently mentioned before me in February 2025 and on 18 June 2025 I heard further submissions on behalf of the Crown and on behalf of the offender.

7. In my remarks on sentence on 3 September 2024, I made findings that I was satisfied beyond reasonable doubt that the unlawful sexual relationship included two specifically described incidents and at least one of each of three other forms of sexual offending where the victim AR’s evidence was not specific as to the occasions on which these occurred.

8. The first specific incident, I found, occurred when AR was sleeping in her room and the offender came and took her from her bed. He placed her on a fold out lounge in the lounge room, placed a blanket over her, pulled down her pyjamas and underwear and kissed her on the vagina. AR said to the offender, “Don’t” and “No”, but he continued and said he would give her bubble gum. Although she again said, “No”, the offender kept kissing her on the genital area.

9. The second specific incident that I found occurred when AR was in the family van, going to soccer training and the offender was sitting next to her. The offender put a blanket over AR’s lap and touched her genital area with his finger, through her clothing, which included moving his finger “around in circles”. This continued until the van arrived at the soccer field.

10. In addition to these two specific incidents, I was satisfied beyond reasonable doubt that there was at least one further incident where the offender touched the victim’s genital area through her clothes while they were sitting under a blanket on the lounge. I was also satisfied that there was at least one further incident of touching the victim’s genital area through her clothes which occurred when they were covered by a blanket in the family van.

11. I was further satisfied beyond reasonable doubt that there was at least one incident in which the offender pulled down the victim’s pants and touched her buttocks with his hands, this being the time which AR described as the “playing the drums” on her bottom incident.

12. In making my assessment of the objective seriousness of count 1, I concluded that the offending relationship extended over a period of up to six months. I was satisfied that the relationship was one in which the offender was a trusted member of the victim’s family and in a position of some authority over the victim. I noted that the victim was aged six at the time and, therefore, very much towards the lower end of the age range for this type of offence and that the offender was a great deal older.

13. I also made findings beyond reasonable doubt that there were a minimum of five incidents. I noted that of these incidents the most serious was the cunnilingus which amounted to sexual intercourse with a six year old child, which at that time carried a maximum penalty of 25 years imprisonment as a stand alone offence.

14. I noted that the other incidents, which involved either touching the victim’s genital area through her clothes or touching in a skin on skin manner her buttocks, were less serious and represented offences of aggravated indecent assault under s 61M(2) of the Crimes Act 1900, which at the relevant time carried a maximum penalty as a stand alone offence of 10 years imprisonment.

15. In determining ground 1 of the appeal, the Court of Criminal Appeal concluded at para 122 of its decision that I had stated correctly the principles in sentencing for a s 66EA offence. However, the court, at para 121, found that I had erred in the application of those principles, in that I proceeded under the misapprehension that before I could be satisfied beyond reasonable doubt that the abuse was occurring regularly, as AR contended, I had to be satisfied of each incident beyond reasonable doubt.

16. At para 126 of the Court of Criminal Appeal judgment, the Court said that the conclusion that I had erred in this respect did not mean that in every case of an offence against s 66EA(1) a sentencing judge must make a determination in terms of frequency, rather than in terms of specified events. The court noted that in some cases there will be a known number of incidents constituting the entirety of the criminal conduct, while in others there may be evidence of a frequency of abuse given by a complainant that is accepted beyond reasonable doubt.

17. Alternatively, the court said it may be that there is evidence given of unparticularised conduct occurring at a frequency that is not accepted beyond reasonable doubt and, in such a case, a judge may be able to find that the conduct occurred at some lower level of frequency or may only be satisfied beyond reasonable doubt of a number of specific instances, rather than at a particular frequency.

18. The Court of Criminal Appeal noted, at para 127, that in finding the facts for count 1, any of the above alternatives may have been open to me, but that I erred in that I limited myself by taking the view that I was required to sentence only on the basis of particular “incidents” about which I was satisfied beyond reasonable doubt to the exclusion of the possibility of sentencing on the basis of a finding as to frequency.

19. Given the orders of the Court of Criminal Appeal in relation to the error in my approach to count 1, it falls to me to consider again what facts I find in relation to that count and to consider again the objective seriousness of that count.

20. However, and as the Court of Criminal Appeal noted at para 150, the remittal of the matter to me is not to be understood as requiring me to make a different finding of fact. Rather, I must arrive at any finding of fact by applying the principles set out in the Court of Criminal Appeal judgment.

21. In the event that I reach factual findings that differ from those I previously reached, then it will be necessary for me to consider again the objective seriousness of count 1. It follows, in my view, that if my conclusion about the objective seriousness of count 1 is different to the conclusion I reached in my original remarks on sentence, then it will be necessary for me to re-determine the indicative sentence for that count.

22. If I reach the conclusion that a different indicative sentence is appropriate, then it will be necessary for me also to return to the question of what aggregate sentence should be imposed, which will, of course, mean that I have regard to totality principles and also consider the ratio between head sentence and non-parole period.

23. The sentencing exercise that I am currently undertaking should not, however, be seen as involving my revisiting the sentence generally. These were matters that I raised with the parties when the proceedings came before me on 18 June 2025. While it seemed that initially the Crown was approaching the proceedings on the basis that it was open to me to revisit all of the indicative sentences, and the ultimate aggregate sentence, I understood the Crown ultimately to accept that the correct approach was the one I have set out above. Namely, that I reconsider what facts I find for count 1 and potentially reconsider the objective seriousness and indicative sentence for that count, but that I not revisit my findings or indicative sentences in relation to any of the other counts.

24. Accordingly, I return to the question of what findings I should make as to the nature of the unlawful sexual relationship that is the subject of the finding of guilt on count 1.

25. In its “Proposed facts consistent with jury verdict” document, which was relied upon in the original sentence hearing, the Crown submitted that the unlawful sexual relationship occurred between January and June 2007 and that sexual contact between the offender and AR happened on a regular basis during this time.

26. The Crown cited AR’s assertions to police, that “He touches it every time he comes over”, that it happened “heaps of times”, and “He keeps on touching them and never stops”. The Crown relied also on AR’s evidence that the sexual conduct would occur when sitting on a lounge watching TV, late at night when her parents were out or were asleep and when travelling in the family van.

27. The Crown submitted that the regular sexual contact included the following acts:

1. Touching the area of AR’s vagina outside of her clothing, usually after putting a blanket over AR.

2. Touching AR to the buttocks, referred to by AR as “playing the drums” on her bottom.

3. Putting his finger inside AR’s vagina.

4. Licking AR’s vagina, referred to by AR as “kisses my rude bits”, and again usually after the offender put a blanket over her.

28. The Crown also pointed to the two specific incidents which AR was able to describe in detail. I have already indicated in my remarks on sentence of 3 September 2024, at paras 8 through to 13, that I was satisfied beyond reasonable doubt that these two incidents, as well as a minimum of three other incidents, occurred.

29. Counsel for the offender, in his written submissions of 5 August 2024, submitted that the court would not accept that the offender committed sexual offences against AR “every time” or “heaps of times”, as suggested in the Crown’s proposed facts document at para 8.

30. It was further submitted that the court would not find that the offender engaged in all of the acts described in para 10 of the proposed facts document or that sexual contact could be described as “regular”.

31. In her first interview, which took place in June 2007, when she was about six and a half years old, AR said that the offender had been “touching my rude bits” and he “touches it every time he comes over” and “he never stops”. She referred to the offender putting a blanket over them and him going under the blanket and kissing her “rude bits”.

32. She referred to what appeared to be a particular occasion when the offender put the blanket over her and she was watching Sponge Bob on TV. When asked about the “last time” that the offender put his head under the blanket and kissed her on the rude bits, she said that he pulled down her pyjamas and they were dark pink with white sheep on them. She said that she told him, “Don’t” but that he kept on doing it and promised to give her bubble gum. When asked if others were in the room when this happened, she said that the others were in bed and that the offender would sometimes take her to the lounge room.

33. She said that the offender also “used to play the drums on my bottom” and thought that this was on the same day as he kissed her on the rude bits. AR said that she told her dad that the offender kisses her rude bits and plays the drums on her bottom, and also told her mum that he had been touching her rude bits and tickling them and had been playing the drums on her bottom.

34. When asked if she knew how many times the offender had played with her rude bits, she said it was “every time”. And when asked if that would be once, twice or something else, she said, “Heaps of times”.

35. A second interview took place with AR in August 2008, when AR was seven years old. On that occasion, the interviewer made attempts to obtain more detail about the matters that AR had disclosed in her first interview. She was asked whether the first time that the offender touched her rude bits was a school day but she said she did not remember. She did confirm, however, that she had started school at the time and said that she was in Year 1 and was seven years old.

36. She was asked to speak about the “next time” that the offender touched her rude bits and the last time that he had touched them, but said that she forgot.

37. She was asked if she could say anything more about how the offender “kissed your rude bits” and she said that this was with his lips but she could not remember whether it was on the inside or outside of her “rude bit”.

38. She was also asked if she could tell more about when the offender would get her up from bed and keep her awake but she said she could not remember most of it. She was asked to describe the first and last time that the offender woke her up and got her out of bed but she said she could not remember. She added, however, that the offender had put a blanket over her about eight times and that this had been “all last year”, but that she could not remember if anything else happened.

39. AR added, however, that the offender would also touch her on the “rude bits” when they were in the car and when they were taking “Jay” to soccer. The offender had placed a blanket over their laps and had touched her “rude bit” through her clothes by moving his finger around in circles until they got to soccer. When asked if the offender had touched her in any other place, she said, “Only in the lounge room, in the van and that’s it.”

40. AR’s evidence on oath was given and recorded on 18 November 2021, when the offender’s first trial was heard before another judge. This was when AR was aged almost 21. This recording of her evidence was played to the jury in the trial that took place before me in May 2024.

41. In her evidence AR was reminded of her interview in 2007, where she said she had been touched “heaps of times” and was asked if she could be “more concrete” about the number of times that the offender touched her “rude bits”. To this, she replied in evidence, “I can say the same thing. Just heaps”. She said she was pretty sure that at the time the offender was staying at her house every day and pretty much every night. She said that,

“Every time I’d see Ben, Ben would either get me out of bed or put a blanket over both of us and I do remember him always pulling my pants down as well as his own pants and touch me and try and say that he will give me bubble gum if I don’t say anything.”

42. She said that he would touch her vagina “all over”.

43. She was cross-examined about her 2007 and 2008 interviews, which were also played to the jury, and she agreed that in the 2007 interview she said nothing about being touched when in the van and that this was first mentioned in the 2008 interview. She also said in cross-examination that she had told her dad that the offender “puts his finger in my rude bit and smells it” but she agreed she did not mention this in either of her police interviews and that the first mention of it was in her police statement of 6 May 2020.

44. She also agreed in cross-examination that she had told police about only one “touching” event on the lounge and one in the van, but she added that “It was more than once on the lounge, it was more than once in the van.” And she said, “Like, growing up, I’ve remembered more stuff.”

45. She said in evidence that the “more stuff” she had remembered was included in her police statement of 6 May 2020 but agreed that in that statement she only spoke of one incident that happened in the van, which was on the way to soccer.

46. She was cross-examined about whether there was a difference between the assertion in her first interview that the offender played with her rude bits “every time” and “heaps of times”, as compared with the assertion in her second interview that he put a blanket over her about “eight times”. She agreed that there was a difference but added that “Ben did it every time I saw him. Every time Ben came over Ben touched me. I was only little and I think saying eight I thought eight was a big number.”

47. I have previously expressed a conclusion based on my own observation of AR’s evidence that she was an honest, cogent and convincing witness, both in her police interviews when she was six and seven years old, and also when she gave evidence on oath in the recording made in the first trial, on 17 November 2021. I remain of that view.

48. Given the findings of fact that I made in my remarks on sentence of 2 September 2024, I was also of the view that AR was a reliable witness in relation to the two specific incidents that are referred to at paras 8 and 9 of my original remarks on sentence. Furthermore, I was satisfied that AR was a reliable witness with respect to at least one further incident, where the offender touched her genital area through clothes while they were sitting on the lounge and at least one further incident where he touched her genital area through clothes while they were in the van.

49. Also, I was satisfied that she was reliable about there being at least one incident where the offender pulled down her pants and touched her buttocks with his hands which she referred to as “playing the drums” on her bottom.

50. I remain of the view that AR was an honest and reliable witness with respect to these incidents.

51. However, as already noted, AR gave evidence to the effect that there were “heaps of times” that the offender touched her sexually and that it happened “every time” that he came over.

52. In its written submissions of 6 August 2024, the Crown pointed to the evidence of Jamie Pearson to the effect that in the first half of 2007 the offender was at the house “pretty well every day”, would stay “three nights a week at least” and that in the weeks before AR made disclosures, the offender had been staying at the house full time.

53. This is largely consistent with the version given by the offender to police in his record of interview of August 2007, where he said that he looked after the children “every day”. While in his evidence in the first trial, in 2021, the offender suggested that it was less frequent than this, he agreed, at transcript p 502 on 26 November 2021, that in the first half of 2007 he was “very regularly” babysitting the children; that this could have included the entire period of January to June 2007; and that on the occasions where he would stay over he slept on a sofa bed in the lounge room.

42. This evidence of the offender provides considerable support for the evidence of Mr Pearson, namely that in the first half of 2007 the offender was at the house very frequently, if not “pretty well every day”.

43. It is also relevant to note the evidence of Mr Pearson recorded at transcript p 104 of 23 May 2024, that during the first half of 2007 the offender was babysitting the children once or twice a week while Mr Pearson and his partner, Melissa, went out.

44. The evidence of Melissa, noted at transcript p 141 on 24 May 2024, was that the offender was at the house “often” and that he would look after the kids and often have them sitting on his lap.

45. I am satisfied, therefore, beyond any reasonable doubt, that during the first half of 2007 the offender was regularly present at and/or sleeping over at the home where AR lived. There can be no doubt, therefore, that the offender had regular access to AR and numerous opportunities to be alone with her.

46. Furthermore and as I have already found, he was, in effect, a trusted member of the extended family, who was regularly left to look after the children, including AR, which I am satisfied beyond reasonable doubt he did about once or twice per week in most weeks in the first half of 2007.

47. It is not possible for me to be satisfied beyond reasonable doubt of a specific number of incidents, where the offender engaged in sexual activity with AR. While the witness AR said that sexual touching occurred “every time” that the offender came over, it would not be realistic, in my view, to accept this in a literal sense. Realistically, this evidence needs to be considered in its context which involved a complaint by a six year old child about unpleasant and unwanted behaviour.

48. Considered in that context, it is to be expected that a child would perceive the unwanted behaviour to have occurred at a frequency which might have exceeded the reality. Nonetheless, given my conclusions that AR was an honest and generally reliable witness, and given the frequent and trusted contact that the offender had with AR in the first half of 2007, I am satisfied beyond reasonable doubt that he engaged in sexual activity with her on a regular and ongoing basis.

49. In using the words “regular and ongoing”, I mean that the offender engaged in sexual contact with AR as and when the opportunity arose, on a weekly basis, and that this involved multiple incidents and significantly more than the minimum of five incidents that I have previously nominated.

50. I am further satisfied beyond reasonable doubt that the unlawful sexual relationship included the following acts:

1. Multiple acts of touching AR’s genital area, either through clothing or skin on skin, whilst sitting on a lounge at the family home, or less frequently, while in the family van.

2. Kissing or licking AR’s vagina, that is skin on skin, on more than one occasion.

3. At least one occasion where the offender played with AR’s naked buttocks, referred to by AR as “playing the drums” on her bottom.

63. In my remarks on sentence of 3 September 2024, I concluded, based on the findings of fact made at that time, that the objective seriousness of the count 1 offence was well above the low range but below the mid-range of objective seriousness. Given that I have made findings of fact in relation to count 1 that are different from those which I expressed in my remarks on sentence of 3 September 2024, it is necessary that I reassess the objective seriousness of the offence.

64. As I noted in my original remarks on sentence, Wilson J in RA v R [2024] NSWCCA 149, set out a non-exhaustive list of matters relevant to the objective seriousness of an offence under s 66EA. In relation to these, I make the following observations and findings.

65. Firstly, the offending extended over a period of up to six months.

66. The relationship was one in which the offender was a trusted member of the victim’s family, being a very close friend of her stepfather and a regular visitor to the house. As a trusted adult in the house, he was also in a position of some authority over the victim. In making reference to a breach of trust and authority, I have taken care not to double count these aspects, given that there is a large degree or overlap between them in this case.

67. At the time of the offending the victim was six years old and so very much towards the lower end of the range of age for “a child”, while the offender was in his mid-20’s and so a great deal older.

68. As to the number of incidents beyond the statutory threshold of two, I have now made findings beyond reasonable doubt that the count 1 offence involved multiple incidents and significantly more than the minimum of five incidents that I have previously nominated. These acts included cunnilingus. They also included touching AR’s genitals with his hands, either skin on skin or through her clothes. Furthermore, there was at least one incident in which the offender pulled down the victim’s pants and touched or played with her buttocks with his hands.

69. Section 66EA(8) requires that in imposing sentence I must take into account, but am not limited by, the maximum penalty for the unlawful sexual acts engaged in by the offender during the period in which the unlawful sexual relationship existed. Clearly, the most serious of the unlawful sexual acts was the cunnilingus, which amounted to sexual intercourse with a six year old child and, at that time, carried a maximum penalty of 25 years as a stand alone offence.

70. The other incidents, which involved either touching the victim’s genital area, either skin on skin or through clothes, or touching in a skin on skin manner her buttocks, are less serious, but still of a serious nature, given the child’s age and the breach of trust and authority involved. These are offences of aggravated indecent assault under s 61M(2), which carried a maximum penalty as a stand alone offence of 10 years imprisonment.

71. I am unable to determine with any certainty the duration of any of the incidents. In my original remarks on sentence, I found that the incidents making up the count 1 offence were relatively brief in duration. Upon further reflection, that may have been a finding that was somewhat generous to the offender, given the amount of unsupervised access that he had to AR. On balance, I conclude that some of the sexual activity was relatively brief, while at other times, such as when babysitting once or twice a week, the abuse went on for some time.

72. However, and as I said in my original remarks on sentence, the relative brevity of the offending is of limited significance because offending of this kind is capable of having a profound and deleterious effect on victims for many years, if not the whole of their lives: Croxon v R [2017] NSWCCA 213 at para 38.

73. I confirm my original finding that the offending was opportunistic and did not involve planning or sophistication. However, given my findings in these remarks, that the abuse was regular and ongoing, as and when the opportunity arose, on a weekly basis, it follows that the offender had many opportunities to carry out offences upon AR and he regularly took advantage of these opportunities.

74. Given his trusted status in the family, his offending did not need to be planned or sophisticated, and so the lack of planning of sophistication is not a matter that mitigates the offending to any real degree.

75. I remain of the view that the offending did not involve gratuitous threats or violence or any physical injury, which would have aggravated the offending if these elements had been present. However and as I have previously said, the absence of threats or violence is not a matter that mitigates the offending because sexual offences against children are easy to commit due to the compliant nature of children, especially when committed by a trusted adult.

76. Having had regard to all of the circumstances I have described, I regard this as a serious example of this type of offence and one that is slightly below the mid-range of objective seriousness.

77. I confirm the findings of fact and my findings about the objective seriousness of the offences that are the subject of counts 4, 5, 6, 7, 8, 9 and 13. Those findings, which are set out in my remarks on sentence of 3 September 2024, should be taken to form part of these additional remarks.

78. I do not intend to recite them again.

79. I also set out the offender’s subjective case in my original remarks on sentence. I remain satisfied of the matters that I summarised there at that time.

80. I also made findings at paras 57 to 63 of my original remarks on sentence about the significance of delay in this case, and I confirm those findings.

81. I repeat, however, that I am of the view that the combined effect of the matters there set out point towards the conclusion that the offender has achieved a great deal towards his own rehabilitation. I remain of the view that this is a matter which reduces the importance of general deterrence. I am also of the view that this reduces the importance of personal deterrence in this case.

82. I remain of the view also, as noted at para 64 of my original remarks on sentence, that the offender’s experience of custody will be more difficult, for the reasons that I have previously set out.

83. I confirm also my previous remarks about the offender’s prospects of rehabilitation and his risk of reoffending. I remain of the view that he is a low risk of reoffending, and that he has at least reasonable prospects of rehabilitation. Indeed and as I have also said previously, I think he has already achieved a great deal towards his rehabilitation.

84. Given the revised findings that I have made about the facts and objective seriousness for count 1, it is appropriate that I revisit the indicative sentence which I nominated for that count in my original remarks on sentence. In considering whether that indicative sentence appropriately reflects the objective seriousness of the offence and the various purposes of sentencing, I have had regard not only to my findings about objective and subjective matters in this case but also to Judicial Commission statistics and to a number of decisions of the New South Wales Court of Criminal Appeal. Those decisions include the following: Eacott (a pseudonym) v R [2019] NSWCCA 158; Xerri v R [2021] NSWCCA 268; Towse v R [2022] NSWCCA 252; RA v R [2024] NSWCCA 149; R v Fisher [2024] NSWCCA 191; and R v LPCM [2025] NSWCCA 78.

85. I do not suggest that any of those cases are truly comparable or that they represent any appropriate range. However, subject to those comments, they, nonetheless, have provided some guidance.

86. I have had regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. All of those matters are relevant, subject, however, to my findings that the importance of general deterrence and personal deterrence is somewhat reduced in this case.

87. I remain of the view that, for the purposes of s 5 of that Act, full time custody is the only appropriate sentence for all counts.

88. In my approach to the sentence, I confirm, as I did in my original remarks on sentence, that I have had regard to the requirement in s 25AA of the Crimes (Sentencing Procedure) Act, which requires that the court have regard to the trauma and sexual abuse on children as understood at the time of sentencing. Furthermore, I have had regard to s 21B of that Act, namely that the court is to have regard to sentencing patterns as they currently exist, rather than those that applied at the time of the offending.

89. As I said in my original remarks on sentence, I have found this case a difficult sentencing exercise. That is because, firstly, there is a need for the sentence to recognise the serious nature of the offences and the fact that there were three young victims.

90. Secondly, however, it is important not to lose sight of the fact that at the time these offences were committed, the offender was, in my view, a very different person, with a very different life to that which applies today.

91. The sentence that I will impose involves a balancing of these considerations, as well as the various other matters to which I have referred.

92. As I have earlier set out, it would not be appropriate, in my view, for me to approach the current sentencing exercise by reconsidering the appropriate indicative term for all of the offences on which Mr Lamey has been convicted. Rather, the appropriate approach, in my opinion, in accordance with fairness considerations and in light of the judgment of the Court of Criminal Appeal, at para 145, is that I reassess, as I have done, the facts and objective seriousness of count 1 only.

93. It follows, in my view, that I should confirm my findings about the facts and objective seriousness and the original indicative terms for all counts other than count 1.

94. In relation to count 1, it is necessary that I examine the indicative term for that count and consider whether it remains appropriate, given the different findings of fact and different finding about objective seriousness that I have now made.

95. Having done that, I have formed the view that a different indicative term should be nominated for count 1. Instead of the previous indicative term of six years, nine months, I nominate an indicative term of seven years, six months.

96. I confirm the remaining indicative terms, which were set out in my judgment of 3 September 2024. However, in the interests of clarity and given that the original sentence has been quashed, I will restate those indicative terms, which are as follows:

97. For counts 4, 5 and 6, a head sentence of three years, three months and a non-parole period of one year, 10 months.

98. For count 7, a head sentence of three years, four months and a non-parole period of one year, 10 months.

99. For count 8, a head sentence of 18 months and a non-parole period of 10 months.

100. For count 9, a head sentence of 19 months, a non-parole period of 10 months.

101. And for count 13, three years.

102. Because I have nominated a different indicative term for count 1, I have revisited the overall aggregate sentence. In doing so, I have had regard to totality principles, including the need to ensure that the ultimate sentence is not a crushing one. This includes consideration of the extent to which there should be any notional accumulation among the sentences for the various crimes. In my view, there does need to be some notional accumulation, so as to recognise the fact that there are three victims, and also to acknowledge the various individual crimes committed on separate occasions.

103. In my view and given the limited nature of the resentencing exercise that I am performing, which does not involve revisiting any of the indicative terms, other than count 1, it would be appropriate that I maintain, in approximate terms, the original ratio of notional accumulation between the indicative term for count 1 and the remaining indicative terms.

104. I am conscious of the fact that the aggregate sentence I am imposing does not involve a large level of notional accumulation, especially when that sentence is compared with the indicative term for count 1. However, I am of the view that any further accumulation would amount to an inappropriately crushing sentence, especially given the findings that I have made about the effects of delay in this case, the offender’s low risk and his reasonably good prospects of rehabilitation.

105. I have made a finding of special circumstances based on this being the offender’s first period in custody, the onerous nature of that custody, and the need for him to be the subject of a reasonable period of supervision after his release to parole.

106. I impose an aggregate head sentence of nine years, seven months. I impose a non-parole period of five years, six months.

107. The sentence will date from 13 March 2024. The head sentence will expire on 12 October 2033. The non-parole period will expire on 12 September 2029.

108. Do the practitioners need to raise anything about any of those numbers or anything else?

109. HILL: No, your Honour.

110. HUSHON: No, your Honour.

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Decision last updated: 08 September 2025