R v LV

[2018] NSWDC 530

District Court

New South Wales

Medium Neutral Citation:	R v LV [2018] NSWDC 530
Hearing dates:	11 & 28 September 2018
Date of orders:	09 October 2018
Decision date:	09 October 2018
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of 3 years to be served by way of Intensive Corrections Order
Catchwords:	SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 Borkowski [2006] NSWCCA 102
Category:	Sentence
Parties:	Regina (Crown) LV (Offender)
Representation:	Romesh Kanakaratne (Crown) Peggy Dwyer (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00248917 & 2017/00248919
Publication restriction:	Statutory non-publication order for the names of the Complainants and the Offender’s name suppressed and to be published as LV

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. LV pleaded guilty in the Local Court to six offences of indecent assault contrary to s 81 Crimes Act 1900 for which the maximum penalty specified is imprisonment for five years. The legislation creating that offence current at the time of the offences committed between 1 March 1972 and 31 July 1973 has long since been repealed. There is no standard non-parole period for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act1999 for any of these offences. That is so because those provisions producing those arrangements of sentencing were not extant at the time of the misconduct and therefore they have no application here.

2. Another point that must be noted in this matter is that the law previously required the Court to determine sentence according to standards as they applied at the time of the commission of the offences, however the Crimes (Sentencing Procedure) Act 1999 now provides in s 25AA that in respect of a child sexual offence, of which this is one because it was an offence in Div 10B of Pt 3 Crimes Act 1900, requires the Court to have regard to sentencing patterns and practices at the time of sentencing, not at the time of the offence. It also requires that when sentencing an offender for child sexual offence the Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing which may include recent psychological research and the common experience of courts.

NO PRE-SENTENCE CUSTODY

3. The offender has spent no time in custody for any of these offences; they are truly historical and much has occurred in the offender’s life since the events upon which sentence will be today imposed.

FORM ONE

4. When he is sentenced for the first of the sequences brought in respect of a victim whom I shall identify as V. He asks that I take into account a series of offences of indecent assault contrary to the same provision between 1 March 1972 and 4 October 1972. These were all upon the same victim and there are eleven of them. The offender confirmed his guilt in respect of those matters and that he wishes them to be taken into account. I intend to do so.

5. When I sentence him for the first of the sequences before me for an offence against the victim to whom I refer as F he asks that I take into account one additional offence committed against him between 1 July 1972 and 31 July 1973. I intend to do so. He confirms his guilt in respect of that offence and that he wishes the Court to take that offence into account in the determination for the principal offence.

6. The additional offences will impact upon the sentence imposed in respect of the principal offences requiring an appropriate increase to the sentences that would otherwise have been imposed were those offences to be determined standing alone. Having arranged this procedure with the Crown and now with the approval of the Court the offender has saved himself from facing separate punishment for those additional offences but at the same time by doing so he has provided utility facilitating the process under which he is now to be punished, and that must be brought to his account and to his credit.

7. The statements of principle relevant to the manner in which additional offences are to be taken into account were discussed by Spigelman CJ in Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518. The additional offences will impact upon the principal offence, as I have said; there will be an increase to the sentences that would otherwise have been imposed for the offences of standing alone; this reflects the greater weight to be given to the aspect of personal deterrence arising from the extent of the misconduct upon which the offender engaged and the community’s entitlement to retribution for these offences.

PLEAS OF GUILTY

8. Having pleaded guilty to the principal offences the offender is entitled to a discount of 25% in accordance with decisions such as Borkowski [2006] NSWCCA 102; that discount applies to the sentence that would have been imposed otherwise bringing to account all of the subjective and objective facts and circumstances in synthesis including demonstrated contrition and remorse and prospects of rehabilitation. I am satisfied that the offender has provided compelling evidence of contrition and remorse, not only by way of the evidence he gave before me and the cross-examination that he faced but also with regard to his disclosure of his misconduct to his wife prior to the matter coming to the notice of authorities and the steps he took to address the psychological sequelae that followed his misconduct which in itself occurred after he was also the victim of sexual assault at the hands of a Catholic priest.

THE FACTS

9. Turning to the facts upon which I am to impose sentence. The first victim, V, was born in 1959; the offender was born in 1954; a difference of five years with the offender the victim’s senior. The victim and the offender were family friends and have continued to know each other for a very long period of time. In January of 1971 the victim’s father passed away after which the victim continued to reside with his mother in the family home in Guildford with his older brother and older sisters and his other brother F, the second victim in the sequence of his conduct.

10. The house at Guildford was a three-bedroomed single storey home, there was the main bedroom at the front of the building located near to the front door which led on to a hallway passing the shared bathroom, the second bedroom, a sunroom and then the kitchen and dining area and a third bedroom at the back of the property. Eighteen months after the victim’s father passed away the offender began courting his wife, the victim’s older sister. He stayed at the family home mostly on weekends. He befriended the victim and his brother F often agreeing to take them out for dinner with his wife and on trips. He provided them with pocket money of about a dollar a week which at the time was clearly of greater value than it is today. He provided help around the house, particularly following the father’s passing.

11. During 1971 V and his brothers including F occupied the main bedroom at the front of the house. Their mother occupied the middle or second bedroom and the sisters occupied the third bedroom at the rear. The brothers slept in beds throughout the room, V and F slept with another brother in a double bed and a fourth brother slept in a single bed. About the time that the offender began courting his wife and the older brother in this family began courting the offender’s sister. As a result it was common for that brother to stay in the offender’s house-hold and the offender would sleep over in the victim’s house.

12. The first sequence of offending is discussed beneath the heading “Initial incident at home in Guildford” offences 1, 7, 8, 9 of 24. This I understand to be reference to the sequence numbers in the series H65661258 charged in respect of the victim V [1] .

    1. This is an incorrect reference, corrected in the paragraphs following.

13. About 9pm one night between March and August 1972 V went to sleep in his bed in the front bedroom wearing pyjamas; about half an hour later the offender and F came to the room to retire to bed. The offender lay down beside V under the covers, he was also wearing pyjamas, and the offender put his hand into the front of the victim’s pyjama pants and begun to stroke the victim’s penis; that is the offence on a Form 1.

14. I will have to correct what I said a moment ago, the ...1258 series was in respect of the victim F and the sequence 24 is in respect of the victim V in the series H65269618. Should I be called upon to revise the judgement I will note that correction.

15. Sequence 24 is the eleventh item on the Form 1 to be taken into account in respect of the conduct toward V impacting upon the sentence to be imposed in respect of Sequence 1. After having stroked the victim’s penis he removed the victim’s pyjama pants and moved down the bed and performed fellatio for about three minutes; that is the offence charged in Sequence 1 of H65269618. He stopped and then put his hand behind the victim’s head and guided the victim toward his penis and placed his penis in the victim’s mouth and he performed fellatio for a period of a few minutes; that is the substantive offence Sequence 7 in the series H65269618. The offender stopped and used his hands to masturbate the victim until he ejaculated; that is sequence 8 of that series on the Form 1. He then took the victim’s hand and placed that on his penis and the victim masturbated the offender to the point of ejaculation; that is Sequence 9 of that series on the Form 1. Their respective ages were 12 to 13 and 17 to 18 years.

16. The second incident is described beneath the heading “Second Incident at Bathurst inside the Car”, offences 2, 10, 11, 12 and 13. These are sequence numbers in the series H65269618. On 2 October 1972 the offender organised for a number of friends to drive to Mt Panorama in Bathurst to watch the car races. The victim V was invited to go with the offender as well as his older brother and another friend. There were two separate cars with the offender and the victim in one and the older brother and another friend in the other vehicle.

17. At Mt Panorama the offender parked in the camping grounds. It was arranged that they would sleep in the vehicles. There was no lighting and only portable toilets back in those days and the accommodation was nowhere near the standard it is today. During the evening the offender and the victim, the older brother, and friend sat in the camper grounds talking until about 10.30pm when all four decided to go to sleep. The victim slept in the front passenger seat of the offender’s motor vehicle, a Holden. The offender sat in the driver’s seat, they reclined their seats as far back as they could; they were fully clothed and used a single blanket to stay warm. The other vehicle with the other two was about 10 metres away; there were no other cars parked nearby.

18. At some point during the night the victim was woken by the offender moving his hands over the victim. The offender reached and placed his hand inside the victim’s pants and began to masturbate his penis; that is sequence 10 on the Form 1 in this series. The offender then moved closer to the victim before leaning over and taking the victim’s penis in his mouth to perform fellatio; that is the substantive offence Sequence 2 in this series. The offender stopped before placing his hands behind the victim’s head and guiding him down over to his side of the car and onto his penis where the victim performed fellatio; this is Sequence 11 on the Form 1.

19. Shortly after, the offender began to masturbate the victim to the point of ejaculation, Sequence 12 on the Form 1, and the offender took the hand of the complainant and placed it on his penis and the victim began to masturbate the offender to the point of ejaculation after which the offender went to sleep; this is Sequence 13 on the Form 1. Their respective ages at this time were 13 and 18 years.

20. The third incident is under the heading “Third Incident at Bathurst, Inside the Car Offences 3, 14, 15, 16 and 17” in the same series. On 3 October 1972, the following day, the group spent the day watching the races before retiring to the campsite for the evening. At some point that night the offender and the victim went to sleep in the Holden. The offender was in the driver’s seat with the victim in the front passenger seat again with a single blanket covering them. The victim woke during the night to the offender moving his hands over to place a hand inside the victim’s pants; he began to masturbate the victim, which is Sequence 14 on the Form 1. He then moved closer to the victim and performed fellatio; that is a substantive offence, Sequence 3. The offender then placed his hands behind the victim’s head and moved it onto his penis where the victim performed fellatio at the instance of the offender; this is Sequence 15 on the Form 1. Shortly after the offender began to masturbate the victim to the point of ejaculation and then took the victim’s hand and put it onto his penis and the victim masturbated the offender until ejaculation; this is Sequences 16 and 17 respectively on the Form 1. Their respective ages were 13 and 18 as I noted.

21. In November 2015 the victim attended Merrylands Police Station and reported the assaults. He provided a statement and this commenced the investigation. Clearly a significant period of time had elapsed between the events and the notification to authorities.

22. The next sequence in the facts describes the misconduct towards F. This series as I noted previously was H65661258. The complainant or victim was born in 1957. There was a difference of about three years or less in age between the offender and this victim. The same history that I outlined earlier is apposite here.

23. The first incident involving this victim was beneath the heading “The First Incident at Home in Guildford, Offences 1 and 3”. About 10pm on a night between 1 July 1972 and 31 July 1973 the victim entered his bedroom with the offender to sleep. V was also asleep in that room, having gone to bed earlier. During the night the offender got into bed with the victim, the victim awoke, the offender put his hand under the victim’s pyjamas and began to masturbate until the victim ejaculated; this is Sequence 1 on the Form 1 relevant to this victim. Afterwards the offender took the victim’s hand and moved it to his shorts and used the victim’s hand to masturbate himself; this continued until ejaculation. This is the substantive offence, Sequence 3, upon which I am to impose sentence in the series H65661258. Once the offender had ejaculated he returned to his bed and slept. The respective ages at this time was 14 to 15 years and 18 to 19 years.

24. The second incident at Guildford is beneath the heading “Second Incident at Guildford Offence 2”. Sometime around June 1973 the offender and the victim F were at the home in Guildford. On a particular night in this period the offender entered the victim’s bed before he had fallen asleep. He took the victim’s hand and moved it underneath his pyjama pants, placed his hand over the victim’s hand restricting him from pulling his hand away. He then had the victim masturbate to the point of ejaculation; this is the substantive offence Sequence 2. The second victim F was 15 at the time and the offender 18 to 19 years of age.

25. In November 2015, at the same time it appears as with the first victim, F attended the Merrylands Police Station and reported these events.

26. On 13 July 2016 the police were given authority by way of a Surveillance Devices Warrant to record conversations between the victims and the offender. On 27 August 2016 both victims met with the offender and his wife at a licenced club in Mt Pritchard. During the meeting the conversation was recorded and in the course of that conversation the offender said “I don’t know why I did it but my question to you is why did it keep going?” He made admissions with regard to the age of the victims at the time and the continuing sexual contact, when he was under the age of 18 years; I take that to be a reference to the offender although it is not entirely clear.

27. On 16 August 2017 the offender attended Merrylands Police Station, he was arrested. He participated in an electronically recorded interview. He declined to answer questions directly regarding the allegations of indecent assault.

VICTIM IMPACT STATEMENTS

28. There is a Victim Impact Statement of sorts provided. No issue has been taken with regard to the form of this document. It is of one paragraph by way of email from the victim V. He speaks of the impact of this conduct right through to his adult life, his loss of self-confidence and social skills, becoming an introvert and on occasions falling into what he described as a deep dark place with bouts of insomnia, but grateful for the love and understanding of his wife and family who have assisted him to become the man he is today.

29. A Victim Impact Statement is also provided again by way of email from F. Once again there has been no objection taken to the form of the document. This is rather more detailed albeit to a limited extent compared to the other Victim Impact Statement. It speaks of his growing up in a loving family with close cousins, the loss of his father when he was 13, the family shortly thereafter to be befriended by the offender who helped the victim’s mother. It is suggested that he had a measure of control. He speaks of what occurred as having left him reserved, lacking in confidence and self-esteem, these traits have remained with him. He speaks of having been robbed of a normal teenage upbringing. The offender had a strong influence on him and his family, this impacted upon relationships with the cousins. The offender was good to their mother and he and his brother. He bought them dinner on weekends, provided pocket money, drove to the beach and picnics, and would stay on the weekends, went on holidays together. He spoke of his time playing soccer and the distance he attempted to put between himself and the offender and his family. He was unaware that his brother was also suffering abuse. The relationship continued including career advice, the acquisition of a motor vehicle, an employment relationship thereafter and a measure of control and influence that impacted upon F’s relationship with his wife. He has undergone counselling which has provided strategies for him to be able to cope with what he suffered.

30. The legislation to which I earlier referred with regard to the approach to sentencing in historical sexual matters, as I noted includes the mandate that the Court have regard to the trauma of sexual abuse on children is understood at the time of sentencing. The Court may inform itself by recent psychological research and the common experience of the Courts in dealing with these matters. Having served as a judge for more than 12 years and before then as counsel for both accused and for the Crown over many years it has been an unfortunate aspect of my career that I have had to deal with this type of offence in those various capacities.

31. There can be no question that the abuse of children has profound impact upon their lives to the extent that to inform the public of the extent of the problem the Federal Government appointed a Royal Commission that continued over some years and which thoroughly investigated this type of behaviour in institutional settings and the consequences for the victims. It is now well recognised that sexual abuse has a profound impact. These Victim Impact Statements do not include any psychological assessment of the victims. What is provided in these succinct documents which could not be said to be exhaustive provide something of a glimpse of what these victims suffered. It has given the opportunity to express to the offender the impact upon them of his misconduct, the impact that it has had upon their relationships and their development so that he can understand what they have suffered.

28. The material is not received in aggravation of the misconduct or the punishment that must be imposed but to provide the Court, if it were needed, with some indication of how profound such behaviour can be upon the welfare of the victims.

THE OFFENDER

33. The offender was born in 1954. He is now 64 years of age. He has no antecedent criminal offences. The authorities tell me that good character is of limited value in an offender’s circumstances when called upon to answer for misconduct such as this, and indeed there is a provision which requires the Court to disregard character that might otherwise be seen to be good character where it has facilitated the misconduct, the subject of prosecution, such as this. I do not find, however, in this case that the offender has exploited his character in pursuit of these boys for his sexual gratification.

34. Although there is some age difference between the victims and the offender, he was still a young man at the time of the offences. He was, himself, a victim of sexual assault and this is another feature unfortunately that is now recognised that victims of such behaviour, not infrequently go on to become perpetrators.

35. A compelling subjective case has been presented on behalf of the offender and this includes an assessment by a psychologist, Jelena Cuk. The report was written on 4 September 2018. There was an interview and clinical assessment on 28 August 2018. This provides a summary of background information consistent with the evidence that the offender gave, and the familial relationship between the offender and his wife and the victims of these crimes that first evolved during the courtship upon which the offender was engaged ultimately leading to his marriage which has persisted, notwithstanding what had occurred during these years.

36. Twenty years ago, the offender disclosed the details of his misbehaviour to his wife and also to his children.

37. In October 2015, he presented for treatment because of the consequences of having to live with his guilt. The history provided includes the fact that he was sexually assaulted by a priest at his school between the ages of eight and nine.

38. He holds a responsible position in a commercial enterprise which I need not name. He has physical health issues, namely arthritis, reflux, gallstones, kidney stones, left and right knee replacement and Bell’s palsy, all of which are managed. He has an extensive and chronic history of depression and anxiety extending back to his childhood following survival from the sexual abuse that he suffered and continuing into the liaisons which are the subject of this prosecution.

39. His first treatment provided by way of psychologist was more than 20 years ago after his disclosure to his wife and his children, and then in 2015, he obtained a further referral from his general practitioner for depression and anxiety relating to the same issues; he commenced treatment with this author on 1 October 2015. Sessions were attended with the offender and his wife. He told the author of the report that in August 2016, there had been the contact arranged to discuss their past relationship issues and to attempt a reconciliation. This gave rise to anxiety. He and his wife agreed to attend that meeting together. His perception was that the meeting did not achieve its goal, and issues were not resolved.

40. It was in September 2017, that he disclosed that the complainants had commenced legal action which increased his psychological ill-health giving rise to extremely low mood, frequent crying, loss of interest, loss of appetite, loss of energy, disturbed sleep and persistent worrying over-laid with thoughts of guilt, shame and hopelessness, worthlessness with some suicidal ideation.

41. There was a series of tests administered. He was ultimately seen to be evidencing a major depressive disorder with anxiety features and complex trauma. The opinion is offered that if that be the case, it directly affected his behaviour with regards to the offending and subsequent adult behaviour with the complainants. I have a difficulty with that part of the report. First, I am not satisfied that the psychologist is qualified to provide a diagnosis. I often note that psychologists are careful to write that there are histories and representations consistent with, rather than a diagnosis of a clinical assessment such as in this case of a major depressive order with anxiety features and complex trauma. I am aware of at least one judge in the Supreme Court who will not attribute great weight to diagnoses in psychologists’ reports for that reason.

42. That said, I am satisfied that this report does provide a reliable profile for the resolution of this matter.

43. It is to be questioned though whether the opinion offered advancing a connection between what are said to be “mental health issues” which would, if this report be accepted, include the major depressive order with anxiety features and complex trauma, could be said to have directly affected his subsequent behaviour in the offences as an adult with the complainants. It is consistent, as I have indicated earlier, with what the Courts have come to learn about victims of such behaviour ultimately becoming perpetrators in some instances, but not everybody does so in consequence of having suffered at the hands of a paedophile.

44. The opinion offered is that the offender is unlikely to re-offend. With that view I would concur. He has been without blemish since these offences and that in itself demonstrates that his rehabilitation, if not achieved, is with strong prospects.

45. There is a report from Dr Olav Nielssen, psychiatrist, written on 9 September 2018. He has elicited a history consistent with what I have summarised already. There is a discussion of the disruption to the extended family by reason of this behaviour and the disclosures the offender made to his wife and children and it is quite apparent from this that some acrimony evolved.

46. Page 3 of the report deals with him as a strict Catholic raised without sex education and his own experience at the hands of the paedophile teacher at the Catholic College where he attended school. He spoke of being aroused in the course of the misconduct that he experienced without proper understanding of why that was occurring and in those circumstances he was, at the time, unaware of the connection between that and the misconduct upon which he engaged.

47. His psychiatric history and medical history are discussed. There is reference to the psychologist’s report. Dr Nielssen diagnoses a depressive illness made upon the basis of the account of symptoms given by the offender with reference to the general practitioner who initiated treatment with anti-depressants. There is no family history of psychiatric disorder. He is heterosexual in orientation and in the view of Dr Nielssen the offences can be understood in the context of the repression of sexual expression and restriction and the opportunity for sexual experimentation available at the time and in the circumstances in which these offences occurred. He was immature and sexually inexperienced and the relationship with his wife was not consummated until after marriage. Dr Nielssen suggests there is a negligible risk of re-offence.

48. I have a statement from the offender which I have read. It is consistent with the evidence that he gave. He has been at a loss to understand why he engaged with these young boys the way he did, but recognises that it was wrong and he has in my assessment at least some insight into the behaviour.

49. He has the support of his wife and they are continuing together notwithstanding the disruption caused by his disclosure to her.

50. There are testimonials speaking to his character. The first is the reference provided by the offender’s daughter, now an adult. She speaks of his qualities as a father and what she has learned as his daughter and the care that he provides for her children which, according to her perception, is without any risk.

51. There is a reference from Ms Douglas who speaks of good works by the offender in the assistance he provides her and her disabled daughter who at the time was aged six and needed constant and attentive care. The extent of the assistance provided is set forth in the document and is accompanied by an image of the young girl who was so in need.

52. There is a reference from his local church particularising the voluntary work he provides in the parish. Another reference, this time from his eldest daughter, again speaks to the qualities that he provided as a father and his relationship with her three children who are very close to him.

53. There is a further reference from a nephew. I am not quite sure of the family connection but I note that the family name of this author is that of the complainants. He speaks of the qualities and characteristics that he demonstrated to this young man through his formative years and beyond, which do not include any sexual misconduct.

54. Finally, there is a document provided by his wife speaking of his qualities and characteristics and she concludes by speaking of her pride in being able to call him her husband and best friend and that she looks forward to them growing old together.

CONSIDERATION

55. This is an unusual case. In light of the history which includes the findings made by Dr Nielssen, upon the history provided and as summarised in the report by the psychologist and from the facts themselves, although there clearly was exploitation of these young men, there was also a measure of experimentation and consensual participation by the victims. That is not, in any way, intended to be critical of these young boys who at that stage of life were evolving into their early teenage years and middle teenage years with all the confusion they might experience at that age with matters of sexuality, particularly at that period in history when society’s attitude was so significantly different to what they are today. I must focus upon, as well as what the victims have suffered, what was the motivation by the offender and the moral culpability for which he must answer.

56. In written submissions provided on behalf of the offender counsel has been thorough referring to all the material that I should bring to account. She urges the view that the offending should be seen at the lower end of the range of objective seriousness. She reminds me of his age for the first offence at 18 or 19 years, his belief in the consensual nature of what was occurring, and the affection and care that he had for both of the victims. There was no violence or force. There was no grooming or predatory behaviour and the conduct was upon the background of his sexual abuse at the hands of a teacher in the school where he attended.

57. It is submitted that I would find that the offending arose out of his own sexual confusion in a state or at a point in his life when he was abstinent and inexperienced in matters sexual.

58. I accept that on the material I have before me, although he knew he was doing wrong, he did not engage upon this activity in the belief or even perception that he was abusing and causing harm.

59. In the course of cross-examination the Crown put to the accused that he knew what he did was immoral. Counsel properly objected to the question and I disallowed it. At the time of this offence, the provisions making homosexual conduct a crime were part of the legislative regime of the State, however the community has progressed and the offences that were once provided for consensual homosexual behaviour have been removed from the legislation with ultimately a change in Federal law to allow for same sex marriage. Thus, my view of this matter is that it should be approached on the basis of sexual activity which upon the material before me was consensual but at least to some extent exploitative because of the age differences between the victims and the offender.

60. I do not agree that the misconduct is at the lowest end of the range for objective seriousness, leaving aside the subjective case to which I have referred, but it is well below mid-range.

61. I have taken into account his evidence of remorse which I accept. I take into account that there is, in the words of Dr Nielssen, only a miniscule risk of re-offending.

62. General deterrence though must be given appropriate weight. Specific deterrence has a lesser role to play. The Court must denounce the behaviour upon which the offender engaged and recognise the harm caused in the perpetration of these offences.

63. I recognise his contrition and the prospects of rehabilitation to which I have already referred.

64. I would comment that all of the aspects of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act are engaged. The line in s 5 of that Act has been crossed and there is no option other than to identify sentences of imprisonment appropriate for each of these cases, but at the same time, in light of the subjective case which has been presented on behalf of the offender, including the amount of time that has passed since this misconduct occurred, I believe that the appropriate implementation of the sentence to be imposed is by way of an intensive corrections order.

THE SENTENCE

65. I shall first of all announce the indicative sentences. In respect of each of the six offences upon which sentence is to be imposed, the offender is convicted. In respect of sequence 1 in the series 65269618, and taking into account the offences on the Form 1, and allowing a 25% discount to the sentence that would have otherwise been imposed, I specify a term of imprisonment of 2 years and 9 months.

66. In respect of sequence 2 in that series, I specify an indicative sentence of 1 year and 9 months.

67. In respect of sequence 3 in that series, I specify an indicative sentence of 1 year and 3 months.

68. In respect of sequence 7 in that series, I provide an indicative sentence of 1 year and 9 months.

69. In respect of sequence 2 in the series H65661258 involving the victim F and taking into account the offence on the form 1, I specify an indicative sentence of imprisonment for 2 years and 3 months and in respect of the offence in sequence 3 of that series, I specify an indicative sentence of 1 year and 3 months.

70. The sentence for the offence in sequence 2 has been determined upon the consideration of the additional offence included on the Form 1.

71. I certify the Form 1 in each case, confirming that I have taken the additional offences into account.

72. I propose an aggregate sentence; the aggregate sentence is imprisonment for 3 years. Pursuant to s 17D Crimes (Sentencing Procedure) Act 1999, I am proscribed from making an intensive corrections order unless I have obtained a relevant assessment report in relation to the offender. However, by force of subs (1A) of that section, I am not required to obtain a report if I am satisfied that there is sufficient information before me to justify the making of the order without obtaining an assessment report, I am satisfied of that. I do not intend to impose a condition in the intensive corrections order requiring home detention or community service.

73. The sentence of 3 years imprisonment shall commence today. By force of s 73(1) of the Act, the standard conditions articulated in subs (2) apply. They are that the offender must not commit any offence and he must submit to the supervision of the Community Corrections officer. He is to attend upon the Community Corrections Office at Penrith within seven days of today for the purposes of the supervision that is required; his address is at Garrison Road, Jordan Springs.

74. There are additional conditions that are articulated in s 73A (2) Crimes (Sentencing Procedure) Act. These are home detention which I do not intend to impose; I do not believe that that is required. Accordingly, the electronic monitoring is not required. I do not intend to impose a curfew. I do not intend to impose Community Service. There has been no assessment as to his suitability and in any event, in light of the condition of his health that is before me, it does not seem to me to be an appropriate option in this case.

75. I will require, in accordance with s 73A (2) (e), that he participate in any rehabilitation or treatment programme identified by Community Corrections to facilitate his ongoing rehabilitation. There is no need to order abstinence from alcohol or drugs in this case. I do not believe there is any need to order a non-association condition or restrict his frequenting or visits to particular places or areas.

76. That said, Madam Crown do you have any instructions from your predecessor as to any conditions that he would require in relation to it?

77. SADDINGTON: No your Honour.

78. HIS HONOUR: I should note also that in the course of submissions the Crown quite fairly conceded that this option was within the range of sentencing options that were available to the Court for the particular circumstances of this case. I will sign the orders. They will go downstairs. Your client will have to go downstairs to sign the paperwork Mr Quayle. I will leave the exhibits on file for 28 days or such longer period as the parties might require and I just need to get this other Form 1 and sign it.

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Endnote

Decision last updated: 14 February 2020