R v Mabbott, Glenn

[2009] NSWDC 133

CITATION:	R v Mabbott, Glenn [2009] NSWDC 133
HEARING DATE(S):	16/01/2009, 30/01/2009
JUDGMENT DATE:	17 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	2008/00015326-003 / Sexual intercourse with person under the age of 10 years- sentenced to a term of minimum term of 7 years, 6 months with a non-parole period of 3 years. The offender is first eligible for parole on 22 July 2010. This sentence is Concurrent with other sentences being served by the offender. Form 1 matters taken into account: H31394146/2- Sexual inter. with child under age of 10 yrs. Commit act of indecency;Indecent assault child under 10yrs; Sexual intercourse with person under the age of 10 years- sentenced to a term of imprisonment of 3 years, 9 months with a non-parole period of 2 years. This sentence is Concurrent with other sentences being served.. Sexual intercourse with person under the age of 10 years- sentenced to a term of imprisonment of 4 years, 6 months with a non-parole period of 2 years, 6 months. This sentence is Concurrent with other sentences Sexual intercourse with person under the age of 10 years- sentenced to minimum term of 3 years, 9 months with a non-parole period of 2 years - sentence is Concurrent with other sentences
CATCHWORDS:	Criminal Law - Sentencing - historic sexual assaults - peadophile conduct - sentenced by earlier judge for other peadophile conduct - instant charges pre-date current sentenced matters - 7 year old victim - digital, penile-vaginal penetration - indecent acts - psychosexual profile - sexually abused as child - sexual fantacies important agent in his sex drive - participant in CUBIT program -significant rehabilitation progress - minimization of offending and dimunition of insight by reliance upon jargon from program - risk of reoffending high.
LEGISLATION CITED:	Crimes Act
CASES CITED:	Gladue [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Hayes [1984] 1 NSWLR 740 The Queen v Zappalla unreported NSW CCA 5 Walden v Hensler 163 CLR 561 Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2004) 61 NSWLR 305 R v Ellis (1986) NSWLR 603 R v Pearce (1998) 194 CLR 610
TEXTS CITED:	Hollow Waters Model, Rupert Ross in ‘Returning to the Teachings’
PARTIES:	Regina Glenn Raymond Mabbott
FILE NUMBER(S):	2008/00015326
SOLICITORS:	Crown: Ms Smith Defence: Mr Dickens

1. Glenn Mabbott is a self confessed paedophile. In October 2001 he was sentenced to a non-parole period of six years and a balance of term of two years for a series of offences committed against a complainant aged seven or eight. These offences occurred between December 1999 and December 2000. The offender is now before the court for four further paedophile offences occurring between January 1999 and January 2000 upon another young female complainant aged seven or eight. Generally speaking these offences precede the offences Hock DCJ dealt with. After completing a sex offender’s program to which I will return in more detail later he is able to acknowledge:

“All of my offending has been when I manipulated my way into a family and I had then manipulated the victim in offending. I haven’t been where I’ve gone and hung by a park or a school and I pick out a victim so to speak ... it’s more about developing a relationship with somebody with young children and then developing that relationship to put myself into a position where I can offend.”

2. Today, Glenn Mabbott is to be held accountable yet again for his offending conduct in sexually dealing with children still in a state of innocence. He has acknowledged his guilt in respect of four counts of sexual intercourse with a girl who I call Gina when she was under ten years old. In respect of the first three sexual intercourse charges she was aged seven. In respect of the final charge she was aged about eight years. The most serious of these four charges is one of penile/vaginal penetration. When sentencing for this offence he asks that I take into account four further sexual offences against this complainant that occurred during the period earlier referred to. One is a further offence of sexual intercourse comprised of digital penetration, another cunnilingus, an act of indecency constituted by the offender putting the complainant’s hand on his erect penis so as to masturbate him and to two matters of indecent assault each occurring at night in the complainant’s bedroom when he touched her vagina.

3. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court committed by this offender harming this victim in this community. See R v Gladue [1999] 1SCR 688 [80].

4. My initial task requires assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from evidence before the court relating to both the offence and the offender. My fact finding task has been circumscribed and that the parties attended an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the court a judge is not a party to the agreed set of facts.

5. An unusual feature of this case is the delay between offending and sentencing disposition. That delay which causes an impact will need assessing. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, Form 1 matters and the length of the parole period or put another way, the length of the non-parole period and finally, of course, the ultimate length of the term of imprisonment. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of community will also need to be determined. See R v Cuthbert (1967) 2 NSWR 329, R v Hayes [1984] 1 NSWLR 740.

6. Mabbott, in the role of the boyfriend of Gina’s “aunt” managed to inveigle himself into the complainant’s life. Occasionally, he would stay overnight at the young girl’s home. That would usually be when he was accompanied by his partner. The first, second and third offence all occur within a twenty-four hour period commencing with an overnight stay.

7. On the morning following the overnight sleep he entered Gina’s bedroom approaching the top bunk where she lay. He placed his hand beneath her doona and started to touch her directly on her body beneath her nightgown. He made for her vagina and inserted his finger into her vagina. She could feel it. She pulled her nightgown down trying to stop the violation of her body. There is an added poignancy from the perspective of Gina. At the time of this incident she had attended talks about child protection. One can only wonder as these things were happening to her whether she was thinking that she had now become one of those children who some men abuse. This offence constitutes count one on the indictment.

8. Later the same day, it is likely some of the family were away from the house. She was playing “Crash Bandicoot” on her Playstation. Mabbott approached her as she played on the lounge. He inserted his finger into her vagina, which she could feel. This offence constitutes the first matter on the Form 1.

9. Then, he knelt down in front of her and began to lick her vagina whilst this seven year old could do no more than continue to play on the Playstation. She was sitting on the couch legs crossed not liking what was happening to her. He was leaning with his torso against her legs as he knelt on the floor in front of her. This offence constitutes the second count in the indictment.

10. Mabbott unzipped his jeans. Holding the seven year old’s small hand he first placed it on his penis over his underwear and subsequently on his naked erect penis. She carries the memory of seeing his public hair. She describes herself as being “scared if she didn’t touch it.” This offence constitutes the second offence on the Form 1. Worse was yet to happen.

11. He then lay her down on her back, placed a condom on his penis, inserted his adult penis into the virginal vagina of this seven year old innocent and had sexual intercourse with her. She said his penis went in and out of her. She described it as a scraping sensation and that it hurt. She told him she had to go to the toilet. Mercifully, he stopped. She went to the bathroom and wiped herself clean. In her victim impact statement she says she has been suffering vaginal pains since early childhood. It is likely these pains had their cause in this incident but at this distance of time and in the absence of proper medical evidence I am unable to be satisfied beyond reasonable doubt of that fact. This offence represents the most serious offence he has been dealt with in this point of time by any judicial officer. It constitutes the third offence before the court.

12. On Christmas Day 1999, Mabbott and his girlfriend were at the complainant’s home visiting her parents and other family members. Gina was playing inside, alone, in a tent apparently erected in the backyard. She was wearing a skirt and undies. Mabbott entered, pulled her underwear to one side to insert his finger into her vagina. She believes his act of digital penetration was interrupted by the arrival of her grandfather. This offence constitutes the fourth charge before the court.

13. She has disclosed other alleged acts of offending that have not been previously disclosed by him. Some of them he had disputed in an extensive record of interview. The acts that have been disputed are recorded in extensive statement of allegations made against him and tendered by the Crown. In respect of that document, Mabbott was asked in his evidence whether he agreed with the contents of the document, he said he did so, that it was correct and that he took no issue with any of the matters in it.

14. Thus all he has done is agree with more than the Crown’s recitation of other alleged incidents and the record of them. I have not taken those other matters into account adversely against him as illustrating any ongoing course of criminal conduct other than as pointing to an absence of contrition or insight. Although it should be noted, I have found there was a longstanding absence of contrition and insight, for reasons I shall later return to.

15. On the other hand, he has disclosed two other offences not mentioned by Gina. Both occurred in her bedroom. Each is an admitted act of indecency. That was an intended digital penetration of her vagina, which he stopped because the complainant said, “You shouldn’t be doing that.” The offender claims he was acutely aware that she was feeling unsure, confused and scared. While I accept these offences occurred, I am satisfied each is a self serving account. It is more likely her asserting he should not be doing that took him by surprise and caused him to question whether she may be strong enough to report his conduct to her parents. These offences constitute the third and fourth matters on the Form 1.

16. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences before the court as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in the incident offences with criminality of offences of a similar kind. It is in this way the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has important impact on the overall sentencing outcome.

17. The Crimes Act creates a number of offences focused upon the protection of young children from a range of experiences while their physical emotions and psychosexual development is patently immature and the power imbalance between child and adult grossly favours the adult. The fact that the consent of the victim is no defence to an offence under this section highlights the purpose of the section in protecting the young. Lee J in describing the jurisprudential philosophy behind the section said the following:

“One begins with the proposition...that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen ... that acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties in later life caused by such conduct.”

His Honour also made this observation highlighting the laws focused upon the power imbalance between adult males and young children:

“The law has always sought to protect young children against sexual predators particularly adult men. The law recognises, of course, as young girls grow up there is an inevitability of contact with sexual overtones and more so with members of the opposite sex of the same age or a little older and that is simply one of the facts of life. But when it comes to the case of an adult male...tampering with girls of twelve and thirteen years of age the crimes become crimes enormity. The Queen v Zappalla unreported NSW CCA 5 November 1991 pp 2 and 3.”

18. In this case there was a tidal wave of power imbalance. The power of an adult senior “family” member over the child in circumstances where the accused’s decision to have intercourse, however, it may be described was an expectation that his actions would be met without any show of resistance. The criminality of the penile sexual intercourse offence also centres around the breach of the young person’s safety. It amounts to a gross intrusive invasion of her right to privacy and her right to sexual development. Her personal safety and impairment of her right to sexual development were of no moment to this offender who put his own sexual gratification above these things. In doing so his conduct was of a high criminal order.

19. He was the partner to her step paternal aunt. Recounting the story of each offence is to be confronted by the execution of a criminal conduct by virtue of ruthless power knowing the seven year old lacks capacity to confront or deny access to her body’s intimacy. Standing at a top bunk, placing his hand beneath her doona and nightgown, with knowledge he is to do an act of penetration with callous disregard to her emotions, physical and psychosexual immaturity, her discomfort, her future wellbeing and her capacity to function normally and particularly normally in a sexual relationship all for his own instant and ongoing sexual gratification. He was motivated by the adrenalin rush and his future in fantasy masturbation because of his pseudo daring in penetrating a seven year old girl.

20. The full extent of his callous ruthlessness was on exhibit the following day. It was to be seen not just in his persistence of chasing one sexual fantasy after another, being stored for future fantasy masturbation, but to culminate in forcing a fully developed adult erect penis into the body of a seven year old girl and once there manipulating it to store yet another warped sexual fantasy into the catalogue of masturbatory excitement and pleasure.

21. Short of death, it is difficult to conceive a more extreme antisocial act against a young girl. These antisocial acts encapsulate criminal conduct of a high order. Two of the Form 1 matters and the fourth indictable count indicate that there were at least four discreet occasions upon which sexually offending criminality occurred. That will constitute an aggravating feature when assessing the upward impact of the Form 1 matters upon the sentence for the third count.

22. The criminality of the third offence requires it be assessed bearing in mind the earlier sexual offending by Mabbott against this girl. In other words, this was the second time she was his victim. Perhaps another way of putting the same point, as I earlier noted, all three first offences occurred within a twenty-four hour period. The sentence for each of these will commence on the same day. I have also decided that the sentence for the fourth matter will be concurrent.

23. There is a victim impact statement. The material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement I recognise they are not the opinions of a qualified expert. The victim impact statement coming as it does from the primary victim may if I accept it as reliable provide unsworn evidence as to the facts of the offences and their effects upon her. The function of a statement such as this one is firstly to give to victims the opportunity of being heard in the sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of the offender.

24. Secondly, it enables the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of the offender. Thirdly, the victim impact statement contributes to an offender at least learning first hand and perhaps gaining an insight into the impact this offender’s conduct had upon the victim. She says this:

“Having this incident happen to me at such a young age has impacted on my life in a great many ways. It has affected me mentally and physically and does still. The earliest time that I can remember it having an effect upon me was as a young child in primary school as part of the curriculum we were taught Protection Studies. The lessons included hypothetical scenarios relating to child sexual assault. It was very difficult for me to sit in those lessons and listen to all these things that happened to me.

We were taught, if anything like that happened, to tell them to ‘Stop! Go away,’ and then tell someone. This I found very difficult to do. I did not know how to tell anyone. I didn’t feel I had the strength or courage. In my mind I thought I had done something wrong. I used to try and block out all of those lessons as they made me feel sad and confused. As I grew up and reached puberty I really wanted to try and have a relationship, have a boyfriend. This was very hard and confusing.

It was hard not to think about what had happened to me. As I was confused with this I experimented going out with girls so that the memories wouldn’t come back. This did not happen though as I could not block it out simply by doing that. It was after starting high school that I got really depressed having all this weight on my mind and bearing down on me I felt all I wanted was to shout and scream to get it out somehow. I could find no words though. I was afraid of what would happen if I did tell someone.

I was in a constant battle within my mind trying to understand and figure out what to do. The same loop of thoughts and questions were going through my mind, ‘Was it my fault? Why me? What did I do wrong? Did I ask for it? Did I deserve it?’ I just couldn‘t figure it out. A lot of the time I felt as if I was going insane. My only way of expressing how I felt was to wear all black, listen to death metal and try to show how I felt to people. I used to cry and cry nearly every night.

It occupied my thoughts all the time. It was then that I started to cut my wrists and thighs in an attempt to release all the pain and anger and confusion. I still couldn’t find the words or time to tell anyone what had happened. The fear of being judged and blamed was too intense. I started not to be interested in school as I couldn’t deal with the environment and the pretence of being happy. I started to run away from home to get attention. Maybe someone could ask me what was wrong.

It was at this stage I was cutting myself every day and all I could see was the darkness. I couldn’t escape from my own mind. What had happened was still so vivid as if it had happened yesterday. This is still the case. I finally found a way out and had the courage to tell someone. It was extremely difficult. Eventually, not knowing what to do I contacted my dad and asked him if I could come and stay with him. This happened and he has helped me.

For years now I have suffered both physically and mentally. I have had vaginal pain since I was young and psychological problems as well. I have seen many doctors both GPs and psychologists. I have also sought extensive counselling and am still doing so. The impact of this crime has not only affected me in the past and present but also members of my family who love and care about me. The scars of this incident in my life will never go away for myself or my family. I am and have found a way to deal with this and move on with love and care from my family. I won’t let the selfish actions of this man ruin my life.”

Subjective Matters

Background Family Dynamics Relationship

25. Glenn Mabbott is the third eldest of three siblings, he is forty-four years old. During his teenage years there were behavioural issues that saw him move from the family home into a small flat at his grandmother’s where he remained until his early twenties. In 1988, he married at the age of twenty-four. That marriage ended after his conviction for sexual offending in 1992. There is a son but this offender has been denied contact with him. In 1994, there was a second relationship that ended at the insistence of her parents in about 2000 as best I can tell.

26. Since his offending became public his immediate family has distanced themselves from him. There were already tensions as his father became concerned by early indications of deviant behaviour towards an eight year old sister. The counsellor seen by the offender at that time and no doubt acting upon the history given by the offender put that behaviour within “normal” parameters. This offender accepts that his family has not acted unreasonably.

27. Nonetheless, an absence of family support makes the rehabilitation process more difficult for him. His present situation is that he is not contacted by family or personal friends. He does not receive visits, he does not make phone calls, he is, though, involved in Buddhism and receives visits from monks and nuns of that faith but otherwise he is isolated from the world beyond the gaol.

28. From thirteen Mabbott was a truanter. By sixteen he had left school. Nonetheless, he presents as an articulate, intelligent man. However, in the absence of education the presence of risk taking, predatory sexual behaviour and the consequence of prison, his employment history is impoverished. He has employment history in retailing where his innate skills serve him well. Past employers view him as a valued employee. He has done prison courses to enhance his employment prospects. He claims willingness to seek employment upon release. Presently he is a sweeper within his wing. He was asked to assist in making a video tape for other inmates informing them what the CUBIT program was all about with a view to encouraging other sexual offenders to participate in that program.

29. So far as one can tell from Mabbott’s appearance he appears to be in reasonable physical health for a man of his age.

30. Mabbott has a history of drug abuse from the age of thirteen. Cannabis was one drug of choice, it can be a mind altering drug if the level of abuse is high. In this offender’s case by 2001 he was suffering from a drug induced psychosis. There is also a diagnosis, presumably from the same period, of schizoid personality disorder. I have assumed also drug induced. During his time in prison where he has been presumably drug free or relatively drug free his symptoms have abated. He no longer takes medication. There were, I should note, episodes of paranoid thinking and suicidal ideation about the time of his entry into custody in July 2000, I think it was.

31. This offender has a history of being sexually “molested” between thirteen and sixteen by two men known to him but not revealed to family or police. It is not indicated what the nature of the molestation was but it would appear to have been ongoing for about two and a half to three years. The offender attributes his drug abuse as a consequence. Why it was a consequence cannot be determined from the facts before me. Was it a learned behaviour from the men? Was it a self medication because the assaults were unwelcome? Or was it reflected of risk taking behaviour from the sexual experiences he had at the hands of these men? I am unable to say.

32. Again, because the dynamics of the molesting interaction between the men and him are unknown it is difficult to determine what, if any, part these sexual experiences play in his sexual offending at the turn of the century. His sexual offending first came to the attention of police in 1991 when he was twenty-seven years old. His next bout of sexual offending were these offences towards the end of this offending period, he commenced offending another seven year old, RM. It is likely the period 1998 to 2001 were periods of heavy drug use. It is also clear during this period his sexual fantasies and sexual desires were centred on young seven year old girls. The offender viewing his past some six years after being incarcerated remembers it thus.

1 . “Most of my offences are concerned with my own fantasies and that is definitely all in my head. For a period of 10 to 20 years I had four magazines that was Penthouse and I forget the name of the other one and I have these same four magazines for nearly 20 years. Pornography material has never been of interest to me and I don’t find it interesting. But as far as my fantasies were concerned I have had many of these whilst I was in an offending cycle.” Transcript 30/01/09 p 11 lines 15 to 24.

2 . “I also identified using sex as a way of coping as much as my offending because at that time I offended in all my cases I had been in a relationship with women and - and I have been in sexual relationships with women while I was offending. So I identified sex and masturbation and fantasies as a form of coping and I have managed now to change these coping strategies to positive coping strategies, exercise, music, walking and talking to people when I have problems which I was unable to do when I was using drugs, taking alcohol, gambling and using sex to cope.” Transcript 30/01/09 p 11 lines 35 to 43.

33. In his record-of-interview questions and answers 81 to 83 he says of his memory of sexual assaults he admitted to:

3 . “At the time I didn’t see myself as doing anything wrong because I held a number of distortions about offending against [Gina]...I genuinely did care and I didn’t want to hurt her physically in terms of see her cry or see her get angry, see her get upset. I wanted to touch her. So in order to do that I tried to make her feel comfortable...because by just doing something normal (I’m just going to colour in; Can I help you colour in?) then whilst doing something normal sexually assault her.”

Of course, when one realises his principal offence against the complainant is penile vaginal intercourse it becomes obvious that he has rationalised his position very favourably to himself in he account he gives in his record-of-interview.

34. While I accept that Mabbott’s participation in CUBIT was well motivated by a desire to rehabilitate, his analysis of his offending conduct has been reduced to jargon “offending cycle” and “sex [apparently including sexual offending] masturbation and fantasy as a form of coping.”

35. In his record-of-interview, question 176 he gives an account of the “distortion” earlier referred to in these terms:

“I am not hurting her, this is only sex, I am just touching her, I am not hurting her. She lets me do it. I am not hurting her. I am arousing her.”

That, of course, ignores again the penile vaginal sexual intercourse and the huge power imbalance.

36. During a maintenance program he is presently participating in with a psychologist and four to eight other inmates he discusses issues and sets goals to improve things like communication, assertiveness, non-sexualising and maintaining arousal control. He has, since finishing CUBIT, been involved in fifty-three sessions. His over-sighting psychologist writes:

“Throughout his participation in custodial maintenance program Mr Mabbott has made every indication of having made comprehensive changes to his functioning in terms of applying treatment gains to his every day life outside the CUBIT therapeutic community.”

In evidence he gave insight into how he anticipates applying the treatment gains offered by CUBIT.

“The moment that I start to have any fantasy at all about any deviant fantasy, the moment that I have any deviant fantasy about that specific person, or about any specific person, the first thing that people are going to see are me wanting to isolate myself and that family and that victim. In other words, not sharing that information with my therapist, not sharing that information with parole and clandestinely trying to develop that relationship outside of the relationship I have with my parole officer or my therapist.”

37. The evidence discloses there were drug, alcohol and gambling issues that may have contributed to this offender’s criminal conduct. It is not possible to gain a clear history from the evidence. He was, it would seem, a poly drug abuser to the point of psychosis in 2001. He claims much of his offending was done while he was under the influence of drugs. He claims a gambling addiction. The offender claims he has remained drug free whilst in gaol and has given up cigarettes. He looks to his Buddhist faith as an instrument in helping him to remain drug free and alcohol free. What can be accomplished within an artificial environment of a single sex gaol may be far more difficult to achieve within a cosmopolitan city environment.

38. In respect of these offences there was partial disclosure of them to an officer within the Corrective Services in 2001. That disclosure included sufficient information for police to identify the name of the complainant. It did not include, as best I can understand, all of the offending conduct that is before the court, but it nonetheless was an important step forward. The evidence is he told Hock’s DCJ court he had other matters to disclose. “Her Honour”, he said, “immediately adjourned”. The offender received legal advice and thereafter disclosed no more for some years past. The complainant had been reluctant to complain when first approached by the police acting on information that had originally been supplied or come from the accused. Ultimately, she did approach the police. In August 2007, the offender was interviewed. He did not initially accept her version of the events but as the Form 1 illustrates he did disclose offending not documented by her. His evidence was:

“I feel incredible sorry for what I’ve done to her but also for the pain that she is suffering now. At the time I paid no attention to anything that she may or may not feel in the future and I was only interested in my own self serving. [My only hope after reading that the victim impact statement] is that she can speak to somebody and hopefully live a better life. After reading that document the first time I went back to my cell and I pulled out a whole heap of CUBIT work that I have done in relation to the effects of, from other people like me and I cried again and again and over a period of time I felt disgusted in my behaviour but just always came to the same conclusion that the only thing I can do for her now is to plead guilty and make it as easy as I possibly can by not putting her in court and putting the people who I did care about...”

The accused was then asked this question:

“Q. Mr Mabbott, you wouldn’t take any issue with being described as a paedophile?
A. No, I describe myself as that but I’m very quick to jump to the conclusion now that’s a label for my behaviour not a label for me now...”

I have already made a reference to the offender’s participation in the full CUBIT program and his ongoing commitment in the CUBIT maintenance program. I earlier referred to his lack of contrition for some time. That situation has clearly changed, probably, with his decision to commence in the CUBIT program. His attention to rehabilitation of this aspect of his offending conduct amply demonstrates his desire to deal with his sexual offending. He has gained some insight but I am concerned that the use of jargon such as “cycle of offending” results in a diminution of the enormity of his criminal conduct in his mind.

39. I am fairly confident the phrase “cycle of offending” does not accurately reflect the victim’s view of what occurred to her during this period of sexual abuse by him.

40. The plea of guilty was entered before the Local Court on 25 September 2008. The plea reflected this offender’s willingness to be held accountable for his offending conduct. In fairness to him I should note that he was struggling with issues relating to the disclosure of these offences since 2001 when he raised the issues initially with Corrective Services and subsequently with the court.

41. The first clear indication that he was willing to acknowledge his guilt in respect of his sexual assaults upon the complainant were his admissions to police in a record-of-interview on 2 August 2007. Even on that occasion there was a dispute in respect of the circumstances of his offending. When the allegations were made that constituted the charged offences he denied them. By his plea of guilty he has accepted, and his acceptance of the agreed facts, he now admits fully his guilt. He is entitled to the full benefit of a twenty-five per cent discount of the sentence I would have otherwise given to him for the utilitarian value of the plea. That is, in others seeing an accused person being held accountable in saving the victim the consequences of having to give evidence and in saving the State money in running what would have been a substantial trial.

42. In respect of his sexual offending he has sought to rehabilitate by working hard on strategies to avoid placing himself in danger of offending once released, in particular, of his work in the CUBIT and CUBIT maintenance programs all one could expect on that aspect of rehabilitation. He claims in his evidence he is a very different person today than he was eight years ago when sentenced by Hock DCJ. While he recognises that other behaviours, gambling, drinking and drug abuse were associated with his sexual offending he does not appear to have devoted the same present time to addressing these issues. Once he is released temptation to be involved in those activities will necessarily be stronger than it is whilst he is in custody.

43. I have also referred to his airing his offending behaviour through lens coded with jargon. While that may assist in the formulation of strategies containing his offending behaviour it also leaves open the door for rationalising away self imposed restraints that are meant to maintain those strategies.

44. As happens quite frequently in custody he has turned to religion for comfort, strength and guidance. Once freedom’s door is opened there are greater distractions to contact personal drive for religious observation. He has no family or community supports in place other than Probation and Parole and continuance with the CUBIT maintenance program and possibly the psychologist associated with that program.

45. His post release plans are barely formulated. He looks to the Parole Board to find him accommodation hopefully he says on the Northern Beaches. He does appear to have skills sufficient to find employment in retail but his prison history and age may make that more difficult than it otherwise would have been. His past sexual history points to re-offending but by the time of his release that history will be well behind him. On this issue he has appropriate insight and subject to my comments re jargon appropriate insight to his offending conduct.

46. Linking re-offending to the nature of the offence can be a form of generalisation. Many offences are committed because something inside an offender drives the offending conduct. In respect of many offences of violence and property offences the drivers are addictions to drug and alcohol. Thus assessing rehabilitation prospects is sometimes measured against assessing success in dealing with drug and alcohol addiction.

47. In the case of sex offending, the drivers are most frequently internal eg sexual desires, sexual fantasies, libido levels. In this offender’s case, the evidence suggests these had been high at least at the early stages of incarceration and thereafter have been brought under control by strategies. Predicting whether the desires, fantasies and libido levels will be awakened on release is absolutely impossible.

48. My view is risk of re-offending is high. But as matters presently stand within the artificial structure of single sex protective custody with fortnightly CUBIT Maintenance, Glenn Mabbott desires strongly not to re-offend and is doing all he believes he can to prepare himself for release. The consequence is that this offender will need very close supervision for an extended period within the community to ensure he has ample opportunity and reason to put his strategies into practice without compromise of them. See Hollow Waters Model, Rupert Ross in ‘Returning to the teachings’.

49. These offences predate the offences for which Hock DCJ sentenced him. Those offences went only to the issue of contrition and rehabilitation issues. He had, though, a number of childhood break enter and steal offences whether that had any sexual overtones is not disclosed on the material before me. Hock DCJ in dealing with his past criminal offending said:

“The offender has a number of stealing offences on his record all committed while he was a juvenile which I disregard for present purposes. The significant matters in his criminal history are offences of assaulting a person under sixteen with an act of indecency and three counts of commit an act of indecency on a child under ten years of age. For those offences, the offender was sentenced to a minimum term of two years and six months and an additional term of ten months in February 1992.

The sentencing judge recommended: “Such treatment and counselling as is practical in regard to his psychiatric conditions and problems. Unfortunately, apparently no action was taken in respect of this recommendation.”

The present offences involve a child of similar age to those in the previous offences but even more serious sexual assaults...”

Her Honour’s remarks in the circumstances where she did not know of these offences I am dealing with are also apposite for the sentencing with which I am concerned.

50. The sentence I am setting must necessarily pay regard to the dictates of personal and general deterrence. In regard to general deterrence the court must necessarily have regard to the maximum sentences imposed by Parliament and their general deterrence purposes. See Walden v Hensler 163 CLR 561.

The maximum penalty for each offence I am dealing with is twenty years imprisonment.

51. On a sentence for the third charge on the committal documents I will be taking into account the four matters on the Form 1. That must necessarily drive upwards the sentence for the third offence. The present Chief Justice speaking for the Court of Criminal Appeal in a guideline judgment on the proper approach to Form 1 matters made it clear the rationale for increase in penalty. He said:

“The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence which the commission of the other offences more frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which...are offences which no punishment has, in fact, been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence...Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2004) 61 NSWLR 305.”

The maximum penalties for the offences on Form 1 had they been on indictment would have been ten years for the indecent assault and seven years for the acts of indecency.

52. This offender albeit at a time of mental instability revealed the existence of further offending and nominated the victim sufficiently for authorities to be able to identify her. For reasons personal to her she chose not to assist police in their inquiries when they first approached her. On subsequent legal advice the offender chose not to assist police further in their inquiries also. He has a right to silence and should not be forensically disadvantaged by exercising his right to silence. He is entitled, therefore, to some consideration in respect of delay when I fix upon a final sentencing disposition. Likewise, he is entitled to some modest consideration for disclosing the existence of the offences authorities were otherwise unaware of. See R v Ellis (1986) NSWLR 603.

53. It would not be a full Ellis discount because of his decision to remain silent and subsequently and his reluctance to accept the complainant’s account which he now has acknowledged by virtue of his pleas.

54. There are three aspects of totality to which I must have regard. The criminality I am dealing with was occasioned over three events insofar as the charges are concerned and four further occasions insofar as the Form 1 matters are concerned. In setting the sentence for the third matter when I take into account the four matters on the Form 1 the fact that there were four further occasions of offending is to be reflected in the overall sentence for that matter.

55. When sentencing though for the third matter because the other three sentences will be served within the time span covered by that sentence for the third matter, that sentence will need to reflect the totality of criminality I am dealing with in all offences. Even so the sentence for the third matter cannot be disproportionate to the criminality covered by that offence.

56. The requirements of R v Pearce (1998) 194 CLR 610 can be adequately met by setting discreet sentences for all four offences but making them concurrent. The offender will have a clear idea of the relative criminality of each by reference to the sentence imposed for each. These are so called historical offences thus the same commencement date is appropriate.

57. This offender has been in continuous custody since 23 July 2001.

58. I have already referred to one reason why special circumstances should be found and the so called “normal” relationship between non-parole and balance of term should be adjusted in favour of the offender, namely, his need for an extended period of ongoing supervision in the community. To that may be added a second reason for finding special circumstances. This offender will have served a continuos period of custody that will consume the parole period allocated by Hock DCJ.

59. This offender’s non-parole period was due to expire on 22 July 2007. Matters were in train for him to receive parole in late August 2007. Instead he was taken to the Auburn Police Station at the Metropolitan Remand Centre and interviewed. He informed parole authorities he had been interviewed and the Parole Board chose to wait and see. He was, in fact, formally charged on 5 September 2007. From that date he says he was prepared to plead.

60. The agreed facts were apparently settled on 6 June 2008. He was committed for sentence on 25 July 2008. He adhered to his pleas of guilty on 30 January 2009 before me. Out of all of those dates I am prepared to accept as the starting date the date which represents the minimum period Hock DCJ required him to be incarcerated. The sentences I will impose, each will commence on 23 July 2007. It seems to me the selection of that date makes adequate allowance for the delay earlier referred to.

61. I intend to sentence for the most serious offence first thereafter I will be sentencing for the other offences. In setting the sentence for the first offence I have borne in mind the objective seriousness dealt with earlier and the subjective circumstances reviewed. But for the plea of guilty in respect of that further offence, that is, penile vaginal intercourse, I would have set an overall sentence of ten years for that offence. As I said that figure is to be arrived at considering the Ellis discount, the Form 1 matters, the totality of criminality embracing all charges and the existing sentences by Hock DCJ. That ten year figure is reduced by twenty-five per cent. The overall sentence for that sentence for that offence will be one of seven and a half years.

Would you stand up please, Mr Mabbott?

62. Glen Raymond Mabbott, I convict you of the offence that you between 1 September 1998 and 31 August 1999 at Hornsby in the State of New South Wales did have sexual intercourse with GPW who was at that time under the age of ten years to wit the age of seven years. I set a non-parole period of three years to commence on 23 July 2007 and to expire on 23 July 2010. I set a balance of term to expire on 22 January 2015.

63. In respect of the offence that you, the first offence, between 1 January 1998 and 31 August 1998 at Hornsby in the State of New South Wales had sexual intercourse with GPW who at that time was under the age of ten years to wit the age of seven years, that is, the hand under the doona offence if I can put it that way. You are convicted. But for your plea of guilty I would have set a sentence of five years imprisonment. I have reduced that by twenty-five per cent which on my calculation becomes a sentence of three years nine months. Your non-parole period is one of two years to commence on 23 July 2007 and to expire on 22 July 2010. Your balance of term will expire on 22 April 2011.

64. In respect of the second matter that you were committed for sentence on that you between 1 December 1998 and 31 August 1998 did have sexual intercourse with GPW at Hornsby who was then under the age of ten years to wit seven years. You are convicted. This was the cunnilingus offence. But for the plea of guilty I would have set a sentence of six years. I reduce that by twenty-five per cent to four and a half years. I set a non-parole period of two years six months to commence on 23 July 2007 and to expire on 22 January 2010 and the balance of term of two years to expire on 22 January 2012.

65. In respect of the last offence that you between 1 September 1999 and 1 January 2000 at Hornsby in the State of New South Wales did have sexual intercourse with GPW who was at that under the age of ten years to wit about eight years. You are convicted. For that offence which again was a digital penetration your sentence of five years that I would have set has been reduced to three years nine months. I set a non-parole period to commence on 23 July 2007 and expire on 22 July 2009. The balance of term to expire on 22 April 2011. Have a seat please while I explain this to you.

66. The total non-parole period that you will have served since 23 July 2001 will amount to a period of nine years. And the total sentence will be one of thirteen years and six months. Your available parole period is four and a half years and if you go to parole on the first date that it was available to you it would be 22 July 2010. You may be returned to custody.