R v Logan

[2020] NSWDC 80

District Court

New South Wales

Medium Neutral Citation:	R v Logan [2020] NSWDC 80
Hearing dates:	26 February 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	Full-time custodial order to be served by way of aggregate term of imprisonment. For orders see [75]
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >14 <16 – Camping trip – Isolation - Child abuse material — Production/Possession – Filming children showering without knowledge  SENTENCING — Penalties — Imprisonment – Aggregate
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Abbas & Ors v R [2013] NSWCCA 115 Attorney General’s Application (No 1) (2002) 56 NSWLR 146 in Muldrock v The Queen (2011) 244 CLR 120 Markarian v The Queen [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 R v Hutchinson [2018] NSWCCA 152 Watts v R [2007] NSWCCA 153
Category:	Sentence
Parties:	Regina (Crown) Stephen Logan (Defendant)
Representation:	Counsel: Ms Hughes (Crown) Mr Fraser (Defence)
File Number(s):	2018/348249
Publication restriction:	Non Publication Order on the name of the complainant or any information that may identify her.

Judgment

1. The offender Stephen Logan, born in 1983, is before the court for sentence for two counts of sexual intercourse with a child greater than the age of 14 years but less than the age of 16 years, under authority, contrary to section 66C(4) of the Crimes Act 1900 (sequences 9 and 10) for which the maximum penalty is 12 years and the standard non-parole period is 5 years. The offender is also to be sentenced for possession of child abuse material contrary to section 91H(2) of the Crimes Act 1900 (sequence 12); and produce child abuse material contrary to section 91H(2) of the Crimes Act 1900 (sequence 17), each of which carry a maximum penalty of 10 years and for which there is no standard non-parole period.

2. There are also Form 1 matters which the offender asks me to take into account when sentencing him. There is a charge of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (sequence 11), which attaches to sequence 9 and production of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (sequence 16) which attaches to sequence 12.

3. I note that the offender has been in custody since 13 November 2018.

Evidence

4. Before me are three exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A notice of committal;

2. The charge certificate dated 15 November 2019;

3. The Agreed Facts;

4. The offender’s criminal history;

5. The offender’s custodial history; and

6. An annexure describing the images found in the offender’s possession.

5. Exhibit 2 is a psychologist report dated 17 December 2019 of Mr Sam Borenstein.

6. Exhibit 3 is a letter from the offender dated 20 February 2020.

7. Exhibit 4 is a Sentencing Assessment Report (SAR) dated 31 March 2020, under the hand of Todd Marchese, Community Corrections Officer.

8. I was greatly assisted by the written and oral submissions of Ms Hughes on behalf of the Crown and Mr Fraser on behalf of the offender.

Agreed Facts

9. The Agreed Facts are as follows:-

1. The victim in this matter is AB, who was born in January 2003. The offender was aged 35 years at the time of the offences. The victim is a friend of the offender’s two daughters, who were 15 and 14 years of age at the time of the offending.

2. The victim has been assessed as having a mild intellectual disability, with an IQ score in the extremely low range, at the 3rd percentile. She experiences a range of difficulties across the domains of adaptive functioning, both at home and at school. She attends a school where she is managed with assistance in the mainstream class.

3. On 24 October 2018, a 'child at risk report' was received at the Child Abuse Unit - South West Metropolitan. Detectives attended Moss Vale Police Station on 29 October 2018. The victim participated in an electronically recorded child interview with detectives and the following disclosures were made.

4. On 15 January 2018, the victim went on a 3-4 night camping trip with the offender and his two children. There were no other persons present on the trip. The offender, the victim and his daughters all slept in one tent which was divided into two areas. The offender occupied a separate area opposite the girls.

5. During the course of the camping trip, while the victim, the offender’s daughters and the offender were swimming in the river near the camp-site, the victim developed a rash all over her body, and she told the offender about it. The offender and the victim walked up to the tent, leaving the offender’s daughters swimming in the river.

6. Once at the tent, the offender and the victim entered it. The tent was zipped and shut by the offender. The offender removed the victim’s swimwear, so that she was naked. He then rubbed an unknown cream all over the victim’s body, including her breasts – s.61M(2) Aggravated Indecent Assault (Form 1 offence)

7. The victim’s mother was advised of the rash by message from the offender’s phone.

8. During the same camping trip, that night, whilst the victim was sleeping on her side of the tent with the offender’s daughters, the offender shined a torch at her from his side of the tent. The victim got up and walked over to the offender. The victim removed her pyjama pants and underwear and got into the offender’s bed. The offender said to the victim that he wanted to put his “dick” in her. The offender touched the victim’s vagina with his fingers. The victim then performed fellatio on the offender – s.66C(4) sexual intercourse with a child > 14 years and < 16 years in circumstances of aggravation (under authority)

9. Following this, the offender put his penis inside the victim’s vagina and had penile/vaginal intercourse with her– s.66C(4) sexual intercourse with a child > 14 years and < 16 years in circumstances of aggravation (under authority). During the intercourse, the offender told the victim that he loved her. The victim believed the offender's feelings towards her were genuine. At one point in the record of interview with police, the victim said “…and I fell in love with him, even though he was using me.”

10. On 13 November 2018, the offender was at Mittagong. He was taken to Southern Highlands Police Station where he obtained legal advice. The offender participated in an electronically recorded interview, where he declined to answer questions relating to the allegations.

11. A search warrant was undertaken at the offender’s residential address. A number of electronic devices were seized. These devices were examined by specialists from the State Electronic Evidence Branch (SEEB) and material was reviewed by detectives from the Child Abuse Unit - South West Metropolitan.

12. The following images and videos were located. On an Asus brand laptop, investigators located 4 cartoon images that are classified as 'child abuse material', and opened and watched 9 videos of 'child abuse material'. When that video material was viewed it revealed infant females 0 – 1 year of age being sexually assaulted by way of penile/vaginal intercourse. There were also videos of 10 to 14 year old female children being sexually assaulted by way of penile/vaginal intercourse. An annexure is attached with a description of material viewed. There were more videos located. However, based on the severity of the content, investigators made the decision not to view any further material.

13. On a blue computer tower, 21 videos of 'child abuse material' were viewed by police. These videos largely depicted pre-pubescent females aged 1 – 9 years of age being sexually assaulted by way of penile/vaginal intercourse and oral sex (fellatio) and some videos of females between 9-11 years and between 12-14 years being sexually assaulted by way of anal intercourse. An annexure is attached with a description of material viewed. Due to the severity of the content, investigators made the decision not to view any further material.

14. On a 1000GB drive, 119 images were classified as 'child abuse material'. The images range from naked pre-pubescent females aged about 5 - 12 years of age in sexually explicit poses, and pre-pubescent females aged approximately 5 - 12 years of age engaged in sexual intercourse (penile / vaginal) and fellatio (penis / mouth). A further 37 images were classified as 'child abuse material'. The images ranged from small pre-pubescent females aged 3 - 9 years of age in sexually explicit poses and images of sexual assaults (penile/vaginal) occurring. An annexure is attached with a description of material viewed.

15. On another hard drive, five (5) videos were classified as 'child abuse material'. The videos depicted pre–pubescent females aged approximately 11 - 14 years of age performing fellatio on an adult male.

16. The child abuse material described at paragraphs 12-15 above relates to the offence under s.91H(2) of the Crimes Act 1900 - Possess Child Abuse Material.

17. On the Asus laptop, a further 27 videos of children either naked or in various stages of undress filmed inside the offender’s bathroom and shower were located. In one video, the offender enters his bathroom and fixes an unknown recording device, pointing in the direction of the shower. The entire shower is visible. It is the same bathroom as shown on the search warrant video at the offender’s premises. The offender’s tattoo can clearly be seen. The offender exits the bathroom and a female wearing pink tights enters. This female has been identified as AB. AB removes her clothing and gets in the shower. AB’s breasts, vagina and bottom can be seen as she enters, washes herself in the shower and exits. She appears unaware of the recording device – s.91H(2) Production of Child Abuse Material (Form 1 matter)

18. There were videos depicting 3 other female children inside the offender’s bathroom. On another video, the offender enters his bathroom, and sets up an unknown recording device in the direction of the shower. The offender’s tattoo is clearly visible. An unidentified female aged 9 - 13 years of age with mid-length brown hair enters the bathroom wearing blue pyjama pants. The child gets undressed and enters the shower. Her breasts, vagina and bottom can be seen clearly as she enters, exits and washes herself in the shower. The child appears to be unaware of the recording device. A further video was located depicting a female aged 13-14 years with blonde hair, wearing grey track-pants and a black singlet getting undressed and into the shower. Her breasts, vagina and bottom can be seen. She is then seen to wash herself in the shower, exit the shower and dry herself. She was recorded naked as she gets dressed. The child is unaware of the recording device. A further video depicts an unidentified female child aged 9-13 years of age with blonde hair entering the bathroom wearing white pyjama pants with red spots. She removes her clothing and enters the shower. Her breasts, vagina and bottom can be clearly seen as she enters, exits and washes herself in the shower. The child appears to be unaware of the recording device – s.91H(2) Production of Child Abuse Material

Exhibit 1

10. I will now summarise some of the documents which have been placed before me. I propose to highlight some important elements in these documents.

11. The offender’s criminal history consists of one offence of sell/supply liquor to person under 18 years, one offence of enter prescribed premises without lawful excuse, and one offence of cause or set fire to the property of another. The conduct occurred in 2001, and the offender was fined in August 2002. I do not consider that the offender’s criminal record is an aggravating factor on sentence. For all intents and purposes, the offender has no prior criminal history.

Exhibit 2

12. Mr Borenstein, psychologist, interviewed and assessed the offender by way of audio visual link on 10 December 2019 for the purpose of preparing a report.

13. Mr Logan acknowledged his guilty plea, and informed Mr Borenstein that he had never received psychiatric or psychological treatment in the community, and has not had contact with those services whilst in prison. The offender could not offer an explanation for the offences, although he expressed guilt and remorse and expressed an understanding that his actions were wrong and potentially injurious to the victim. The offender stated that 12 months prior to the offending he went to the tip, found computer parts and a hard drive which contained the images, and which he then watched.

14. Mr Logan previously worked as a self-employed arborist. Leading up to the offending, he was not in a relationship. He has two daughters aged 15 and 16 with his de facto partner from whom he is separated. Mr Logan stated that he and his ex-de facto “just grew apart. DOCS got involved. The girls had nits, and the state of the house they were in was unliveable.” The offender recounts that when the girls came under his care, they described how to make a pipe to smoke cannabis. He has had primary care of his daughters ever since, and they have irregular contact with their mother.

15. The offender says that he continues to have a positive relationship with his daughters, who are aware of the charges. He told Mr Borenstein that after his relationship with his daughters’ mother came to an end, he struggled with symptoms of depression including social withdrawal, isolation, emotional numbing, variable motivation and anhedonia. He denied any history of trauma, abuse or domestic violence.

16. Mr Logan confirmed that he had watched the child abuse material prior to engaging with the victim. He said that once the child abuse material was observed on the computer, he became quite interested. He could not explain the offending behaviour saying “I do not know. It just happened”. The offender denied sexual paraphilias, that is froterism, voyeurism, sadomasochism or paedophilia. He said his interest in child pornography was only one of curiosity. He confirmed that he was aroused, which he says left him feeling “disturbed”.

17. In Mr Borenstein’s opinion, the offender lacks insight into his emotional and psychological states, but did not display serious psychiatric disorder. He could not explain the offending behaviour, for which he expressed wrongdoing, guilt and remorse. He was somewhat vague in explaining how he came into possession of the child abuse material. He said that he was in the habit of picking up computer parts at tips and found the child abuse material on a hard drive. Mr Borenstein states that it is possible that Mr Logan regressed to earlier memories of his first sexual experiences when aged 16, with a girl of similar age. The offender did not attempt to minimise his offending behaviour, and expressed an understanding of the impact the offences would have on the victim. He was motivated to undertake treatment. The offender says he enjoyed a solid network of friends and social support, all of whom know of his current charges, and remain supportive.

18. Using a conceptual actuarial instrument and a dynamic assessment, Mr Borenstein assigns the offender to a low-risk recidivist category. He notes that the offender would be eligible to participate in the CUBIT program conducted in the custodial environment.

Exhibit 3

19. The offender provided a letter to the court. He expressed “sincere apologies and remorse” for the pain and suffering he caused the victim, her family and friends. He says that he thinks about the harm he has caused every day and the embarrassment and shame he has caused his family, friends and the wider community. The offender expresses the hope that the victim can find peace and healing from the trauma that he has inflicted upon her. He says that he recognises that the impact of the offending may cause the victim to have an inability to feel safe and trust others, and in particular males. The offender says he welcomes any assistance which will lead him down a path towards rehabilitation.

Exhibit 4

20. The SAR of 31 March 2020 notes that at the time of his offences, Mr Logan was single and had sole custody of his two children. The offender worked full time as an arborist. He has no any historical offences relating to sexual offending.

21. The offender did not deny the seriousness of any of his offences. He did dispute the number of child abuse videos found on his laptop pertaining to the video camera that he set up in his bathroom. He stated that there were only 4 videos, rather than 27. He could not provide an explanation for his offending but stated that he should not have committed them. The offender said that he did not realise that the victim had a disability, and that he failed to realise the position of power that he maintained over her. He did not understand that he should have turned the images over to the police. Mr Logan was assessed at a low risk of general reoffending, and a medium risk of committing a further sex offence using the Static 99Rv2016 assessment tool.

Objective seriousness

Counts 1 and 2 – Sexual intercourse with child aged > 14 <16(under authority)

22. It was submitted by the Crown that the following matters were relevant to objective seriousness:

1. The victim was almost 15 years of age at the time of the offence;

2. The offence involved skin to skin penetration increasing the risk of disease to the victim;

3. The offences occurred over one evening one shortly after one another;

4. There was a significant age difference (21 years) between the victim and offender; and

5. That the victim was vulnerable in that she was away on a camping trip away from her parents where the offender was the only adult.

23. The Crown submits that the offending falls at the lower end of the middle range with respect to both counts.

24. Mr Fraser submitted that a number of factors impact on the assessment of objective criminality. They include the nature of the acts, the age of the complainant at the time and the surrounding circumstances of the offending. The offending occurred less than two weeks prior to the victim’s 15th birthday and therefore her age is in the middle of the range for these offences. He submitted that to the extent that it operates on the objective gravity, this would point to an offence of moderate seriousness.

25. Mr Fraser submitted that the two acts of intercourse occurred as part of a continuous single event, and that the overall period of the offending should be seen as brief. He said that the second act of penile/vaginal intercourse was more invasive, such that the criminality involved in that count is slightly higher than that for the fellatio count. He notes that the Form 1 offence was a separate incident but occurred on the same day, such that any addition to the offence to which the Form 1 relates would be minimal.

26. It was submitted that there is no suggestion that the offender used force or threatening conduct. Mr Fraser submitted that on the contrary, AB appeared willing, and when she first spoke to the police, she described herself as having fallen in love with the offender. Whilst the acts of intercourse were prohibited by law, they were “not the subject of opposition”. To this the Crown says that the victim’s lack of resistance needs to be understood within the context of how the incident unfolded, that is taking into account that she was in the care of the offender and that he was the only adult present and that he was in a position of authority. I note here that “under authority” is an element of the offence and I do not double count this feature on sentence.

27. As to the vulnerability of the victim, I make no finding about it due to her apparent low intellect as there is scant evidence. I note that she is in the mainstream class at her school.

28. Mr Fraser submitted that in all of the circumstances of the offending, there should be a finding lower on the scale of objective seriousness and that both offences fall significantly below the middle range.

23. Taking all these matters into account, I find that the offending was at the low end of the mid-range of objective seriousness for each count.

Counts 3 and 4 – Possess and Produce child abuse material

30. In R v Hutchinson [2018] NSWCCA 152, a list of factors relevant to the assessment of objective seriousness were set out.

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

31. Here, the Crown says that the material produced and in the possession of the offender included material depicting actual children. She submitted this factor increases the objective seriousness.

32. Mr Fraser said that whilst there were a few cartoon images, the majority of the material involved actual children as the subject of the material. However, he submitted that this is commonly the case, and should not therefore be treated as aggravating the offending. Notwithstanding that submission, I take into account that 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.

33. Ms Hughes submitted that with respect to the material produced by the offender (sequence 17), the age of the children involved is between 9 and 13 years. The children are not depicted performing any type of sexual activity and were apparently unaware of the recording.

34. In relation to the material possessed by the offender (sequence 12), the Crown conceded that the material included ‘cartoon’ and ‘animated’ material as well as images of children in their underwear that would fall toward the lower end of seriousness. However, she submitted that the material also included graphic and violent videos and images, including videos of infants being sexually assaulted and screaming in pain. This material was described by police as extremely confronting and would fall within the uppermost category of seriousness. The ages of the children depicted in this material range from 0-13 years.

35. On this point, Mr Fraser submitted that the age of the children varied. He accepted that images involving younger children would point to more serious offending. He also accepted that the material includes images and videos where the children involved were involved in varying acts of penetrative intercourse, and that images of that type are more serious than others involving sexual posing only.

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

36. Ms Hughes noted that some of the material depicts infants being sexually assaulted by adult males by way of penile/vaginal intercourse, and that it was very likely that these assaults caused physical harm to those children.

37. Mr Fraser said that in some cases, the child abuse material has been classified according to certain categories of imagery, using the COPINE/CETS scales. [1] Those scales categorise images from erotic posing (category 1) to images of penetrative acts involving adults and children (category 4) and images of sadism and bestiality (category 5). A sixth category is reserved for cartoon images. Mr Fraser submitted that the facts in the present case do not attempt to categorise the imagery. However, the descriptions (in exhibit 1) make clear that there are a number of images which would fall into category 4, and therefore represent serious examples of child abuse material. There were not any images/videos of the category 5 type. He said that whilst the penetrative acts as described involve a degree of cruelty and might be expected to have caused some physical harm, there is no clear evidence of the extent of any such harm. That being so, he submitted that only limited weight could be placed on this factor. I find that some of the material demonstrated cruelty and harm to children.

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.

1. COPINE scale (Combating Paedophile Information Networks in Europe) / Australian National Victim Image Library (ANVIL) / Child Exploitation Tracking System (CETS).

38. The Crown said that with respect to sequence 17, there are videos produced showing 3 different young girls. Sequence 12 involves the possession of 35 videos and 119 images of child abuse material. She acknowledged that it is not uncommon in such matters for offenders to be in possession of tens or hundreds of thousands of photographs and images. She submitted that the quantity of material in this case would fall below the middle range.

39. Mr Fraser said that the number of images and videos were not insignificant, but relative to others seen by the court, they cannot be regarded as unusually excessive. He further submitted that whilst it is apparent that there is some doubling up, it remains that there are a number of separate children involved in the various images. This must be considered relative to other cases involving significantly more images, and presumably significantly more children. The submissions of the parties on this issue did not diverge.

v. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination.

40. The parties are agreed that there is no suggestion of the offender having sold or disseminated the material. Neither is there evidence of his intention to do so had he not been detected.

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

41. This is not applicable.

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.

42. It is agreed that there is no suggestion of material or financial benefit.

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

43. The Crown said that with respect to sequence 17, the offender produced the material which increases the objective seriousness. With respect to sequence 12, there is no evidence that the offender was involved in the production of the material.

44. Mr Fraser submitted that there is no evidence that the offender was any more than a person who accessed and viewed the images stored on his personal electronic devices. Whilst the offender accessed and possessed child abuse material, with exception of the separately charged production offences, the evidence suggests he was completely remote from its production. I accept this submission.

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

45. The Crown said that with respect to sequence 17, there was a significant degree of planning. The offender set up a camera in his bathroom in order to capture young girls showering. I find that there was some degree of planning but it was largely unsophisticated.

46. Mr Fraser said that there is no evidence of the offender utilising sophisticated means such as encryption devices or the dark web. The images were found stored on regular hard drives and USB drives. Neither was it suggested that it was stored in an unusually sophisticated manner.

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

47. There is no evidence that the offender acted in a collaborative network of like-minded persons. The evidence discloses that the offender acted alone.

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

48. Ms Hughes submitted that the offender had two daughters, who at the time of the offending were living with him full-time, and that there was a real risk that his daughters could have been exposed to this material.

49. Mr Fraser submitted that there was some risk of the offender’s children inadvertently accessing the images. However, the available evidence does not point to a high risk of that eventuating. I agree with this submission.

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

50. The Crown submitted that the offender had his two daughters living with him at the time of the offending, and often had his daughter’s friends visiting the home. She said that there was a real risk that a vulnerable child (such as the victim in this matter) could have been exposed to the material. Mr Fraser said there was no evidence of this factor. In my opinion, whilst there may have been some risk of exposure, the facts do not disclose where the hard drives were located in the premises, and I make no finding in this regard.

xiii. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act bearing upon the objective seriousness of the offence.

51. Ms Hughes conceded that the offender has no history of similar offending.

52. The Crown submitted that count 4 (sequence 17) is aggravated given the offender was in a position of trust when the young girls showered in his home (s 21A(2)(k)). I note that this is not an element of the section 91H(2) offences. She further submitted that the children depicted in the images and videos for counts 3 (sequence 12) and 4 (sequence 17) were vulnerable by virtual of their age (s 21A(2)(l)).

53. The Crown submitted that the offending constituting both sequences 12 and 17 would fall somewhere in the middle range of objective seriousness.

54. Mr Fraser submitted that having regard to the factors above, the court should find that the offender’s possession of child abuse material falls below the middle of the range of objective seriousness for offences of its type.

55. I take into account all submissions made by the offender and the Crown. In many respects their submissions overlapped. In my opinion, the objective seriousness of the possess child abuse material falls at the mid-range, primarily because of the graphic and severe nature of some of the images. As to the objective seriousness of the produce child abuse material, I find that it falls between below the mid-range, primarily because it was unsophisticated and was not disseminated and because it cannot be said that the offender in any way “lured” the girls into the shower, which would have significantly increased the objective gravity.

Plea of Guilty

56. The offender pleaded guilty at the earliest opportunity and he is entitled to a discount of 25% for the utilitarian value of his early plea, which is agreed between the parties.

General Deterrence and Denunciation

57. General deterrence clearly has a significant role to play, with respect to both the section 66C(4) and section 91H(2) offences. Indeed, it is of some paramount importance. So significant is this offending, taking into account that it involves children, that it 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. The sentence that I will impose will reflect those objectives.

Remorse

58. Mr Fraser submitted that the offender’s remorse is represented by his early plea of guilty, his letter to the court and his comments to Mr Borenstein. Both parties acknowledge that the offender has expressed guilt, remorse and some insight with respect to the section 66C(4) offences.

59. The Crown, however, disputes that there is evidence of remorse and insight with respect to the section 91H(2) offences. She submitted that the offender does not acknowledge the harm caused by his actions in producing and possessing child abuse material and has not expressed insight into the effect that the offending has on the community. It is true that the offender does not specifically mention those words, but I am not so certain that he does not refer to them, at least obliquely. In fact, the offender’s letter expresses regret for all of his actions to the victim (implicitly including sequence 12), and he speaks of his general regret for the “heinous” offences he committed and the remorse he feels “to all those affected” by his offending behaviour. I am prepared to make a finding, on the balance of probabilities, that the offender has expressed some remorse, that he has limited insight into his offending but that he is eager and motivated to address his offending behaviour.

Personal Deterrence and Prospects of Rehabilitation

60. As to specific deterrence and his prospects of rehabilitation, the offender’s lack of a prior criminal history, and the evidence of his lack of understanding about why his offended, poses challenges for his prospects of rehabilitation. However, in my opinion, should he be offered intensive support upon his release, taking into account the protective factors of his daughters and his network of support of family and friends, he is likely to have some reasonable prospects of rehabilitation, notwithstanding my findings about insight and remorse above. I cannot accept, on the available evidence, Mr Fraser’s submission that the offender has good prospects, and I cannot find that he is unlikely to re-offend, notwithstanding Mr Borenstein’s risk assessment contained in his report.

Prior Criminal History

61. Whilst the offender has no prior criminal history for all intents and purposes, it was acknowledged by Mr Fraser that this factor would have reduced weight in the context of this offending.

Totality

62. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [2]

    2. Mill v The Queen (1988) 166 CLR 59 at [63].

63. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.

64. It is not disputed by the Crown that in this case there ought to be some measure of concurrency, in particular between the sequence 9 and 10 offences. Mr Fraser said that that offending occurred over a relatively short period and constituted a single short episode of criminality. He submitted that the offences were not the most serious of their type and were committed as a continuing course of conduct, and thus that the degree of accumulation should be partial and limited. In my opinion, there ought to be some degree of concurrency between sequence 9 and 10, but less so with respect to the child abuse material offences.

Standard Non Parole Period

65. Given the terms of s54B(3) of the Sentencing Act (NSW), I indicate that my reasons for deviating from the standard non-parole period are that the offending was at the mid-range of objective seriousness and the existence of special circumstances.

Special Circumstances

66. The present offending is serious and the offender faces a custodial penalty. So much is conceded. I must, however, give consideration to the appropriate non-parole period to be imposed. It was submitted that are a number of factors which would permit a finding of special circumstances so as to permit a deviation in the ratio of the non-parole period. These include the fact that this will be the offender’s first time in custody, that he was assessed by a psychologist as having a low-risk of offending, his prospects of rehabilitation and his need for ongoing and extended supervision to ensure that he engages with treatment on release. The Crown agrees with those submissions. I accept that special circumstances exist in this matter, and I make a finding of special circumstances, and set the ratio at approximately 61%.

Threshold

67. Having considered all the possible alternatives, I am satisfied that the section 5 threshold the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Form 1 Matters

68. As I indicated earlier, I have been asked to take two offences into account on a Form 1 basis when sentencing the offender for two sequences, the details of which I have already set out above. This has the effect of increasing the sentence that would otherwise be imposed for the sequence 9 and 12 offences. [3] The increase operates to recognise the need for personal deterrence and the community’s entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. [4] I have taken these offences into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

    3. Abbas & Ors v R [2013] NSWCCA 115 at [22].

    4. Watts v R [2007] NSWCCA 153 at [4]; Attorney General’s Application (No 1) (2002) 56 NSWLR 146 at [39]-[42].

Sentence

69. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given the offender’s need for counselling and ongoing rehabilitation.

70. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

71. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the factors referred to in s21A of the Sentencing Act. I have kept in mind the legislative guideposts: the maximum penalty for the s66C(4) offences of 12 years imprisonment and the statutory non-parole period of 5 years, and the maximum penalty of 10 years imprisonment for the s91H(2) offences. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

72. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

73. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, and after allowing for a 25% discount for the offender’s plea of guilty, I impose an aggregate sentence of imprisonment for 6 years. I will backdate the sentence for time spent in custody from 13 November 2018, or 507 days.

74. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For the sequence 9 offence (taking into account sequence 11 on the Form 1), I would have imposed a sentence of 4 years, less a 25% discount bringing the sentence to 3 years and I would have imposed a non-parole period of 1 year 7 months.

1. For the sequence 10 offence, I would have imposed a sentence of 4 years, less a 25% discount bringing the sentence to 3 years and I would have imposed a non-parole period of 1 year 7 months.

2. For the sequence 12 offence (taking into account sequence 16 on the Form 1), I would have imposed a sentence of 3 years, less a 25% discount bringing the sentence to 2 years and 3 months.

3. For the sequence 17 offence I would have imposed a sentence of 2 years 6 months, less a 25% discount bringing the sentence to 1 year and 10 months.

Orders

75. Mr Logan, please stand.

76. You are convicted of the offences of:

1. Sexual intercourse with a child greater than the age of 14 years but less than the age of 16 years, under authority, contrary to section 66C(4) of the Crimes Act 1900;

2. Sexual intercourse with a child greater than the age of 14 years but less than the age of 16 years, under authority, contrary to section 66C(4) of the Crimes Act 1900;

3. Possession of child abuse material, contrary to section 91H(2) of the Crimes Act 1900; and

4. Produce child abuse material, contrary to section 91H(2) of the Crimes Act 1900.

77. You are sentenced to an aggregate term of imprisonment for 6 years. The commencement date is 13 November 2018.

78. I impose a non-parole period of 3 years 8 months, which will expire on 12 July 2022 when you will be eligible for release on parole.

79. Your head sentence will expire on 12 November 2024.

80. Mr Logan, do you understand the orders that I have made?

Endnotes

Decision last updated: 07 October 2025