R v O'Donnell, David

[2015] NSWDC 425

District Court

New South Wales

Medium Neutral Citation:	R v O’DONNELL, David [2015] NSWDC 425
Hearing dates:	21 October 2015
Date of orders:	21 October 2015
Decision date:	21 October 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [62]
Catchwords:	Criminal – sentence – aggravated indecent assault on person under the age of 16 years – 39 years old – discount for the early plea of guilty – prior criminal record – treatment of medical condition in custody – assessment of the standard non-parole period – whether the offender’ s health was causally connected to the offence – good prospects of rehabilitation given present arrangements in place – limited expressions of remorse – disability of victim not an aggravating factor – finding of special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibilities) Act 1996 Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen [2005] HCA 25 Muldrock v R [2011] HCA 25 Pearce v R (1998) 194 CLR 610 R v Higgins [2002] NSWCCA 407 R v Smith (1987) 44 SASR 587 R v Badanjak [2004] NSWCCA 395 R v Miranda (2002) 128 A Crim R 362 R v Vachalec [1981] 1 NSWLR 351 Veen (No.2) v The Queen (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina David O’Donnell
Representation:	Counsel: Mr. Clayton – Director of Public Prosecutions Ms. Haywood – Offender
File Number(s):	2014/143308

SENTENCE

1. HIS HONOUR: The prisoner David James O’Donnell appears today for sentence in relation to an offence of aggravated indecent assault on a person under the age of 16 years as it is shortly described in the Crown’s summary. I am told it is an offence contrary to s 61M(2) Crimes Act 1900. It carries a maximum penalty of ten years and a standard non-parole period of eight years. I will come back to the issue of a standard non-parole period at a later time.

2. I am informed the prisoner has spent no time in custody, and there are no offences I am required to take into account on a Form 1. The date of the offence was 6 May 2014 and it occurred at Oberon. The prisoner assaulted BM, a person under the age of 16 years to wit 15 years. And at the time of that assault he committed an act of indecency on that person. The prisoner was arrested on 12 May 2015.

3. There is an “agreed facts” statement which tells me that the victim of this matter is 15 years of age, due to injury sustained at birth, has an assessed mental age of a 12 year old. The prisoner was 39 years at the time and lived alone in an apartment in Queen Street, Oberon. The prisoner and the victim were known to one another and the victim had attended the prisoner’s premises on a number of occasions beforehand, although there is no evidence of any previous indecency towards the child. It was said in the facts that the offender’s premises were known as a local “hang out” where a number of young people attended in order to smoke cigarettes and consume alcohol.

4. The victim attended of his own motion on the prisoner’s property at about 5pm on 6 May. He came for no particular reason, apparently just to “hang out”. When he entered the unit and sat down, the prisoner was drinking beer and was standing up and a short time later, or sometime later sat next to the victim. The victim was wearing shorts, the prisoner sat on the child’s left hand side and used his right hand to start rubbing up the child’s left leg, starting at his ankle and working his way up towards his groin area. The prisoner placed his hand on the child’s penis on the outside of his clothing. The prisoner rubbed the child’s penis for a period of time. The entire incident, lasting approximately 30 seconds. The child told the prisoner to stop, and he did so. The prisoner put on some music and showed a scene from a movie he had been watching. He offered the victim some beer, a glass of beer, but there is no suggestion that he used beer to lure the child to commit the indecent assault. The victim and the prisoner consumed some alcohol and when the child went to the toilet there was a knock on the door and the victim’s brother came to the door. I am not aware of the age of the victim’s brother. He was initially told the child, or the victim, was not there. The child came out of the toilet after his brother had left. The child’s brother returned and the child’s brother said to the prisoner he would not be leaving without his brother. The child who had returned to the toilet was told to leave by the prisoner and ultimately left with his brother.

5. The victim told his step-father about the incident on 7 May, the next day. There was prompt attendance to the Oberon Police Station, and an interim apprehended personal violence order was served on the offender shortly afterwards. The victim made a statement on 9 May and on 12 May, the police having obtained a crime scene warrant, attended upon the prisoner’s premises at Oberon. The prisoner was arrested and cautioned. He was given his Pt 9 LEPRA rights and declined to answer questions.

6. The prisoner pleaded guilty at the Local Court and was committed for sentence. As was submitted by his counsel, and not opposed by the Crown, he is entitled to a discount of 25% upon the otherwise appropriate sentence to be imposed for this crime.

7. The prisoner’s criminal history, for want of a better word, is quite interesting. He has only one prior appearance in the Sydney District Court in respect of offences that were apparently committed in 1998. I have read the remarks on sentence of then Judge Price, now the Honourable Price J, the Chief Judge of our Court. The prisoner was convicted of a number of offences, as I have said I have read his Honour’s remarks on sentence.

8. Those offences, to summarise them, were allegations of on 14 May 1998 conspiring to murder a particular man, having sexual intercourse in company without consent with that particular person, in respect of which there were four counts, a count of maliciously causing the victim to contract a grievous bodily disease with the intent of causing him to contract that disease, a charge of malicious wounding with intent to do grievous bodily harm to the victim and unlawfully and forcefully imprisoning the victim. As I understand it there were eight counts in total.

9. I have read the facts in relation to that matter. I propose not to dilate upon them. It goes without saying that the allegations against the prisoner and his co-accused, who was then the prisoner’s partner as I understand it, were very, very serious indeed. I note of course the prisoner had no prior convictions at the time of that offending and has no other convictions since his release on parole. The prisoner was ultimately sentenced as I understand his Honour’s orders to a total sentence of ten years with a six year non-parole period. His Honour fashioned the sentences in their various forms, the longest sentence being for the conspiracy to murder charge, to run concurrently one with the other. I note the sentence was imposed in December 2000. The full implications of the High Court Judgment of Pearce v R from 1998 may not have filtered through at that particular time.

10. Certainly, even though all these offences were committed as part of what could be called the one course of conduct, it would be most unlikely nowadays, applying proper principles in relation to totality of criminality, that all sentences would be concurrent, one with the other. Be that as it may, I note those very serious offences as being present on the prisoner’s record, and they are relevant in a number of ways. They certainly disentitle the prisoner to any leniency in relation to this matter and certainly any special leniency given the seriousness of this allegation.

11. I note from the pre-sentence report that although the prisoner’s parole was to expire in 2006, he was not released to parole until 2008. He made two unsuccessful parole applications. It was during the course of his parole there was detected a high blood alcohol limit on one occasion in the latter period of his parole supervision. Otherwise he generally complied with the directions of the relevant parole authorities.

12. In relation to the background of the prisoner I have both the history given to the psychologist, the history given to the Community Corrections officer and of course the evidence of the prisoner’s sister which I accept. The prisoner, as I understand it, is one of four children. He has had no contact, he told the Community Corrections officer, with his father since his parents relationship ended when he was quite young. He had a loving and supportive relationship with his mother, who passed away in 2013, and who in part is a player in the events that contributed to his offending.

13. The Community Corrections Service Report speaks of him speaking emotionally about his mother. As I said she passed away in 2013, although her health had been poor for some time, and he had been a carer of hers, up until the time of her death.

14. The prisoner on attaining year 12 at High School had a range of employment. He had some what could be called legal employment in a sense, after training as an assistant in nursing at Blacktown TAFE. He also worked as a personal assistant for a brain impaired male before he was convicted of the offences in 2000. He worked as a male escort in Sydney for two to three years. The prisoner when he was released on parole was unemployed for some period of time, but ultimately found employment as I understand it with a retail store either in Oberon or nearby. Although he remains employed with this employer as I understand it, he is currently on leave without pay due to the employer becoming aware of this matter and, of course, because of his health to which I will refer to in a moment. I believe that he enjoyed the work that he was doing.

15. The Community Corrections Service Report reflects upon his history of drug and alcohol abuse, and also reflects upon what is described as his mental health. He presented to the Community Corrections as “upset” and as “emotionally unstable.” He said to the Community Corrections that after his mother’s death in 2013 his life began to “unravel.” He said on the day of the offence he had suffered some slight at a local employment agency and had lost his temper and went back home and drank a lot of alcohol to ease his stress. He has a number of financial difficulties arising out of the lack of regular employment at the moment.

16. He has been assessed by a senior psychologist of the Corrective Services Department who saw him last when he was on parole on 30 March 2010 and then again on 3 September 2015 for the purposes of preparing a report. That psychologist undertook the actuarial assessment called the Static-99R, and instrument designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of a sexual offence. I will not go through the detail of that outline of what is comprised within that instrument but the total score that the prisoner returned was a score of 6, which placed him in the ‘high risk’ of reoffending category. That is category of risk of further offending relative to other male sexual offenders.

17. In 2007 when he was in custody, it was reported that;

“Overall the majority of treatment issues related to Mr O’Donnell’s offending remain outstanding, and require a significant amount of ongoing work. Whilst he appeared to have an adequate intellectual understanding of several of his risk factors, his emotional understanding and personal responsibility was significantly restricted. Consequently Mr O’Connell routinely failed to identify and intervene in his problematic behaviour.”

18. Maybe this assessment in part was a reason for him not being granted parole when he had applied for it. He made good progress it is reported in re-integrating into the community. Although there was a difficulty identified of potential risky behaviour, especially in relation to alcohol consumption.

19. When seen on 3 September 2015 some long standing themes were still evident. A lack of insight into his own behaviour, a tendency to externalise responsibility, a tendency to minimise the problematic nature of his alcohol consumption, a failure to identify risky behaviour and a denial that this was occurring such as the reference to his house being a “hang out” for local youth. It is recommended that he might be referred to sexual offender programmes when in custody, but whether the non‑parole period I fix will be sufficient for him to complete such a programme I do not know. He also needs to undertake programmes relating to his abuse of alcohol.

20. So far as his attitude to the offending is concerned, he claimed little or no memory of what occurred, and claimed that he didn’t recognise the name of the victim on the AVO and needed the identity of the young person explained to him. Although he acknowledged the young person was in his home and was uninvited and said that he was attempting to gather cigarettes from him, he did not accept that he had assaulted the victim. Which flies in the face of course with his pleas of guilty. He has been assessed as medium to high risk of re-offending which is self-evident, but has a number of needs that need to be addressed both as to his employment and his financial circumstances, his use of leisure time, his associations, his drug and alcohol problems, his emotional and personal well-being, his attitudes and of course his health. His health is a considerable concern.

21. With regard to his assessment by Community Corrections, the assessor reflects upon his lack of insight and his lack of appreciation of the character of the offending against him. He claimed that he was “not focused on sexual gratification” as he said he no longer experiences sexual arousal as a result of his current myriad of prescribed medications. Well that may be true in September 2015, but as I understand the matter as at May 2014 he had not been rigorously applying or taking medications provided to him, thus contributing to his deteriorating health situation. I do not accept that his conduct constitutes a lack of interest in sexual arousal. He noted in his interaction with Community Corrections, the continuing grief relating to the loss of his mother, but noted also the support within his family with some difficulties outside his family.

22. His health has been addressed both so far as his psychological health is concerned in the report that has been helpfully prepared by Ms Robilliard which is dated 13 October 2015, and a report from Professor Andrew Carr dated 26 August 2015. Professor Carr is a Professor of Medicine at the University of New South Wales. He has an international reputation in relation to research and treatment of HIV AIDS. He has been a Professor of Medicine at the University of New South Wales since 2007 and has been Director of the HIV Immunology and Infectious Diseases Unit and head of the Clinical Research Programme at St Vincent’s Hospital since 2009. He is obviously a world renowned expert.

23. He said that Mr O’Donnell’s current diagnosis at the time of the report is as follows, that he has acquired Immune Deficiency Syndrome, a consequence of a longstanding untreated HIV infection. I note in relation to the sentencing of the prisoner in 2000 his HIV infection was known at that time. His AIDS manifests in several ways. He has HIV Associated Neurological Disease, given the acronym HAND. This was based upon his clinical presentation in April 2015, being short term memory loss, impulsive behaviour, loss of insight, altered mood and irritability as well as verbal aggression. It was confirmed by both clinical presentation and brain imaging. He also has Mycobacterium avium (MAC) infection. This causes fevers, night-sweats, anaemia, marked weight loss, and has been diagnosed on blood tests. He has chronic diarrhoea, although no bacteria or bacterium has been found to cause this.

24. His health had deteriorated up until April 2015, that is in the months leading up to that date. I take it in the months either just before or after his arrest in relation to this matter, information is unclear. When he initially presented his health had deteriorated to the point that there was a thought he might die. He was being treated for multiple infections which included the requirement of hospitalisation and needed addressing both physical and mental health. His health has improved substantially both physical and mental. His HIV Infection is the subject of antiviral therapy. He is taking his pills regularly as the level of HIV in his blood is now at an undetectable level. So far as his HAND is concerned his mood had greatly stabilised by the end of April and he has been able to self-manage life receiving particular medication that assists him in this regard, which he can gradually reduce and cease over the coming months. His fevers as at August 2015 had largely abated, as had the chronic diarrhoea.

25. He receives multiple treatment and receives multiple medications and the issue of his medication is a matter that was addressed in some further evidence given to me. His condition in the general sense is permanent. He requires life-long HIV therapy to prevent relapse of his infections and HAND, but there had been considerable improvement over the four months since his admission to hospital. There is a calculation of his risks pre‑therapy. His risk of death over the next five years was 46%. According to this report over the next five years it is reduced to 14% which I accept is still a very high percentage for a man so young. On therapy there is a greater reduction of risk to him but still significant. The doctor could not foresee any new therapy in the next 12 months. He expressed the opinion that the HIV care might be compromised in prison. It had taken many months to engage him in care and his care was far more complex than for the average patient with HIV. The doctor was concerned that prison might precipitate non-adherence to treatment which would risk relapse to his various illnesses.

26. If he is incarcerated he would require all therapy to be continued on a daily basis without any interruption or variation, regardless he would be happy to oversee that occur. I am going to ask that this report from Professor Carr be copied, placed in a sealed envelope and addressed to the Justice Health Unit at Bathurst Gaol to be taken with the prisoner when he is removed shortly.

27. In addressing the issue of his treatment in prison, bearing in mind the case law in relation to this matter which I will deal with shortly, I was greatly assisted by some further evidence that was arranged through the great assistance of the learned Crown Prosecutor and counsel for the prisoner. The further evidence came from John Bell as I understand the gentleman’s name. I have no transcript of course. He is from Community Corrections and has been a unit leader of the Parole Unit locally for three years. He indicated that a treatment plan could be provided by Justice Health, however so far as maintaining the health of the prisoner, what was vital was that when he went into custody he should bring all of his relevant medication with him and be maintained on that medication until such time as other medication could be provided to him by Justice Health.

28. I have an email available to me from Pauline Hearst who is the Nurse Unit Manager at the Bathurst Correctional Centre. All medication required for patients with the prisoner’s condition can be provided by Justice Health Pharmacy at Long Bay, and anti-virals have been administered in Bathurst without any issues, including to Mr O’Donnell. The only issue that would arise if he came in as a new reception and had not brought any of his medication with him. The Justice Health Unit have a specialist nurse for population health five days a week, a GP twice a week and a specialist physician every second month. The Justice Health Unit also has access to the Specialist Immunology Clinic at Long Bay and have conducted numerous consultations for patients where necessary.

18. It is interesting to note that one of the leading cases in New South Wales relating to the treatment of HIV AIDS of Smith, arising in the mid 1980’s, occurred at a time when the virus was relatively new within the prison population. No doubt there have been many changes since Mr Smith was sentenced.

19. I also have a psychological report that I have earlier referred to. It gives some history of his family background which I have taken into account which is confirmed by the evidence of the prisoner’s sister. It deals with his social network and his past relationship. The history the prisoner gives is that his HIV positive status was diagnosed in about 1995, 1996. The report of Ms Robilliard sets out details provided by the prisoner about his health. The prisoner has given no history of any treatment for mental illness prior to the offending, although there is reference in the report of Ms Robilliard to the HAND which I earlier referred. I am unable to conclude of course that the prisoner on balance was affected by HAND at the time of the offending, noting the specific terms of the report of Professor Carr, of the potential presence of that condition, or neurological condition for some months before April 2015. However, Ms Robilliard correctly points out that reports of the prisoner’s irritability, verbal aggression towards staff, etcetera, is symptomatic of that condition.

20. The prisoner has a history of drug and alcohol use although I am not informed of any drug use in this matter particularly. The prisoner gave some history of his prior offending which to my mind reflected no real insight into the character of that offending. He certainly gave, compared to what Judge Price found, a somewhat coloured version of that offending. Likewise there’s a somewhat coloured version of the facts in relation to the matter with which I am concerned. He made the observation, “I’m very touchy-feely when I’m very drunk.” He said that he wasn’t aware of the young person’s age, nor that he may have suffered a mild mental impairment. He claims that he lied to the victim’s brother when he arrived at the apartment because the victim did not want his brother to find him.

21. In relation to the issue of the victim’s mental impairment, it is not pleaded. It could be pleaded that the victim relevantly had an intellectual disability. The difference between the presentation of a 15 year old boy and a 12 year old boy is something about which I can offer no particular lay opinion. It is many years since my son was 15 and 12, and my contact with 15 year olds or 12 year olds is very limited. But I just say in passing, I accept that whilst the child had an intellectual impairment there is no evidence upon which I could conclude that the prisoner took advantage of that matter in the commission of this offence.

22. The prisoner acknowledged the effect upon the victim, but he also claimed that he was “too drunk to know what he was doing.” Saying that he was still “upset about mum.” Being upset about his mother is no excuse for indecently assaulting a child under the age of 16.

23. The prisoner is of about average or just below average intelligence on the tests that were admitted by Ms Robilliard, and he exhibited no dependence on alcohol or drugs at the time of the testing, consistent with the evidence of the sister that the prisoner had eschewed alcohol since his arrest in relation to this matter, which is to his credit. The psychologist undertook her own Static-99R assessment. She claimed on her assessment of him that the score was 3. She said this placed him in a ‘moderate low’ risk category. I appreciate that there are dynamic and static considerations and the dynamic considerations can sometimes change from week to week or month to month. However, it still demonstrates the risk of re-offending in a sexual way in the future.

24. Ms Robilliard pointed out that the prisoner had some important dynamic factors that contribute to reduce risk of sexual offending which I accept. Firstly there is the fact that he had been offence free, so to speak, between 1998 and the commission of the offence with which I am concerned. Admittedly he had been in custody for some eight years, and of course, that dynamic factor has to be seen in the context of the reality that he is back before me having committed a sexual offence. He had secure accommodation close to significant family attachments. He had part time employment which in no way was lost through any real “fault” on his part. He has been receiving regular medical treatment and complying with the directions of the doctors. He had also stopped drinking. When the offence was committed he was said to be in poor physical and mental health due to his HIV, his abuse of alcohol, and letting himself go after the death of his mother, again, a fact confirmed by his sister. He is willing to accept any directions given to him by the Court or by the Parole Authorities.

25. So far as his sister’s evidence is concerned, I have actually referred to that on a number of occasions, and she said that there had been some substantial deterioration in his presentation since the death of his mother. As I said, he stopped drinking since his arrest in relation to this matter. She confirmed that he had however stopped taking his medication. He had expressed his remorse to her, claiming that he did not remember much, but accepting that his conduct was wrong and inappropriate and he realised that drinking alcohol was a contribution to his situation. There is much improvement in his appearance and his attitude in particularly recent months. She made the observation that “the old David was back.” He was cross‑examined by the learned Crown concerning the degree to which he was affected, again reiterating that he was sorry but stating that he could not remember much of what had occurred.

26. I have already acknowledged the plea of guilty will attract a discount of 25% to represent the utilitarian value of it. I deal with the submissions, particularly of counsel for the prisoner because they bring in to sharper focus matters that I am required to make judgment upon. Learned counsel for the prisoner pointed out that the offence was a single offence committed over a very short period of time of touching and rubbing on the outside of the clothes where the prisoner stopped his actions, where the victim was 15 years of age, that is close to the age limit for this offence, where the child had attended voluntarily to the home without being lured by the prisoner. These matters are apparent from the facts that I accept on the basis of that analysis of counsel for the prisoner. The offence falls below the mid‑range of objective seriousness.

27. In relation to the question of the middle range of objective seriousness, I referred earlier to the standard non-parole period for this offence. It is obviously not my role in any way to comment upon the approach of the legislature. Judges take oaths and affirmations to apply the laws as laid down from time to time by the Superior Courts and the legislature. But the standard non-parole period in this particular offence is a rather strange figure. Ordinarily sentencing principle demands consistency with what was said by the High Court in Veen v R (No 2), that in imposing a sentence the objective seriousness of the offence taken in conjunction with relevant subjective or mitigating factors is to be imposed by reference to the maximum penalty as a measuring stick. Ordinarily, one would have thought that the maximum penalty for most offences to be dealt with on indictment, I am not talking about jurisdictional limits at the moment in the Local Court, would require the imposition of that sentence where it was the worst category of offence committed by the worse category of offender. Clearly this is not the worst category of offence.

28. Of course the standard non-parole period is for an offence in the middle range of objective seriousness. Ordinarily without a finding of special circumstances, one would think that if one imposed the maximum penalty of ten years it would ordinarily be for the worst class of offence for the worst offender. Then, if one was fixing a non-parole period, one would fix a non‑parole period of seven and a half years or thereabouts, without a finding of ‘special circumstances’.

29. In any event it is what it is. If there is a lack of logic in the figure fixed by the legislature, so be it. What is the case, however, is that the standard non‑parole period is a matter to be assessed, or considered, pursuant to s 54A(2) Crimes (Sentencing Procedure) Act 1999. It represents the non‑parole period for an offence on the Table taking into account only the objective factors affecting the relative seriousness of the offence that render the offence “in the middle of the range of seriousness.”

30. Section 54B(2) provides now that the standard non‑parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. Thus, the legislation in its own terms, effectively mirrors the findings of Muldrock v R (2011) 244 CLR 120 in respect of its consideration of the previous existing provisions for sentencing an offender in relation to an offence which a standard non‑parole period may be relevant. Here the offence is below the middle range of objective seriousness. One is required to consider all matters in the way that the High Court had determined in the decision of Markarian [2005] HCA 25, particularly for example in the observations of McHugh J at [51] of that judgment.

31. In relation to the various factors I am required to take into account in assessing this matter, firstly I have taken into account the health of the prisoner. It is the case that courts are required to take into account circumstances which will make imprisonment more burdensome for offenders. Including considerations relating to the prisoner’s health, the need for medical treatment, any hardship in prison, and the likelihood of the offender’s reasonable needs being met whilst imprisoned.

32. I appreciate from the evidence available to me, his reasonable needs may be met by Justice Health. But that does not mean to say that his time in custody will not be arduous. Particularly given progress of his condition since he was last in prison. Of course ill health cannot be allowed to become a licence to commit crime, nor can offenders expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services Authorities to provide appropriate care and treatment for sick prisoners. A task in respect of which the Court will not interfere. So was held by the Court of Criminal Appeal in the decision of R v Vachalec [1981] 1 NSWLR 351.

33. Of course ill health will be a factor tending to mitigate punishment, only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. On the basis of the medical evidence available to me, I could not conclude, subject to the prisoner having available to him medication, that there will be a “gravely adverse effect on the offender’s health”. But there will be a greater burden upon him. There are a range of cases that talk about the character of the condition. It need not be a life threatening condition to be relevant in that respect (see R v Miranda (2002) 128 A Crim R 362). I also generally refer to the decision of R v Smith (1987) 44 SASR 587, and the decision of Bailey v Director of Public Prosecutions (1988) 62 ALJR 319.

34. The Court in R v Higgins, a 2002 case, said in respect of a prisoner with the HIV virus that the criminal justice system could not give priority to the prisoner’s health in that matter and thus was required to tailor the sentence with an eye to the overriding concern of the welfare and protection of the community generally as far as “common humanity” will allow, in the words of Howie J. In this matter also I refer to similar sentiments in the decision of R v Badanjak [2004] NSWCCA 395, particularly at [9]-[11].

35. With regard to the mental health of the prisoner, because I could not find on balance that the prisoner was suffering from what I describe as HAND, I could not conclude that he was suffering from a mental condition that was causally related to the offending. I am mindful of what Chief Judge McClellan determined as being the relevant principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178]. I am mindful of the fact too that in that judgment his Honour pointed out that any mental health problems of an offender need not amount to a serious psychiatric illness. There is a possibility in the light of the deterioration at the time that there were some HAND factors at work, particularly in relation to impulsivity. The truth of the matter is that this case was one where there was no pre-meditation on the part of the prisoner. It was a case of the prisoner taking advantage of the situation affected by alcohol in what could be described as an impulsive manner.

36. That having been said the laws and penalties provided are designed to protect children from sexual abuse, and of course the long term deleterious effects of sexual abuse are well known to the community. One would need only follow the proceedings of the Royal Commission into institutional sexual abuse to understand that is so. By reference to other statutory provisions of course this is a case where the purposes of sentencing set out in section 3A are all to be taken into account including adequate punishment deterring the offender and others. That is general deterrence, protection of the community from the offender, promoting his rehabilitation, making him accountable for his actions, denouncing his conduct and recognising the harm done to the victim. There is no evidence of physical and emotional harm. One might have inferred that there would be some harm. But I am prepared to find as a mitigating factor that such harm as suffered or damage caused was not substantial. I am prepared to find as a mitigating factor the offence was not part of planned or organised criminal activity. (s.21A(3) Crimes (Sentencing Procedure) Act 1999.

37. The other matters of that might arise under ‘mitigating factors’, such as his character and his likelihood of re-offending, I obviously cannot find in his favour. He is at risk of re‑offending if certain circumstances arise, particularly if he allows his health to deteriorate and he abuses alcohol.

38. It was urged upon me that I should find that he has good prospects of rehabilitation. I have considered that matter very closely. The Crown was not persuaded by the evidence that that was so. But I am prepared to make that finding in a qualified way. Certainly his risks of re‑offending are high, but this is very much, as I would understand the matter, subject to the existence of various dynamic factors. I note, as I have said earlier, that certain dynamic factors that are favourable to him are now in place. Firstly, his cessation of abuse of alcohol, his positive reaction to medical treatment, his secure family relationships and the like. It seems to me having regard to the facts of the case, that if he looks after himself so far as his health is concerned and avoids the abuse of alcohol and seeks effective counselling, he has good prospects of rehabilitation.

39. I note his expressions of remorse, but I could not accept that he is remorseful as a mitigating factor. There is too much qualification in the report of the psychologist and of the Community Corrections officer concerning his attitude to the offending to conclude that this mitigating factor exists in a way that gives substantial mitigation to the offending. Even if I found it on balance it is very limited in its effect. His plea of guilty is a mitigating factor.

40. So far as aggravating factors are concerned arising under s 21A(2) of the Act I consider the issue of whether his record of previous convictions was an aggravating factor. His counsel submitted that it was not so. The Crown’s submissions were not particularly pointed at that matter. I note that if an offender has a record of previous convictions, and particularly if the offender is being sentenced for a “serious personal violence offence” and has a record of previous convictions for serious personal violence offences, then one would need to find that it was an aggravating factor. I do not understand the offence to which he has pleaded guilty, to be relevantly a quite serious personal violence offence.” If it was then obviously it is an aggravating factor, but I bear in mind, as I have said earlier, that his record entitles him to no leniency. It is a relevant matter to take into account in assessing his prospects of rehabilitation, but it also is to be said that the previous convictions are of totally different offending, far more serious than that with which I am currently concerned.

41. With regard to any other potential aggravating factors, the only other matter that concerned me was whether the victim could relatively be regarded as vulnerable. But in my view, noting the terms of the sub‑paragraph (s 21A(2)(l)), the terms are reference to a person who is “very young” or had a “disability”. The victim was not very young, and whilst he had a disability, I don’t believe the prisoner took advantage of it. Thus I am prepared not to find that as an aggravating factor.

42. His counsel touched upon a number of the matters that I have already identified as worthy of consideration and I have taken into account everything that has been said by her as my remarks reveal. The learned Crown Prosecutor properly pointed out that the s 5 ‘threshold’, if I might call it that, had been crossed in this matter. No other penalty other than a term of imprisonment can be imposed. It is submitted, and I accept that I must impose a term of full time custody, not because I should not consider alternatives to full time custody, but simply because ultimately, in the scheme of things the term of imprisonment to be imposed is one with the discount that does not permit of any alternative other than full time custody. The Crown acknowledged some degree of remorse, the plea of guilty. He submitted the prospects of rehabilitation were low and as I said he acknowledged the offence was below the mid‑range of objective seriousness but carried with it still the need for weight to be given to general and personal or specific deterrence which is correct.

43. In relation to the consideration of the appropriate sentence I have approached the matter as was discussed by Howie J in the decision of R v Zamagias in 2002. I have taken into account all relevant factors and settled upon with the appropriate discount a sentence that is in excess of two years. Thus, the issue of turning to an alternative to full time imprisonment does not arise. I hasten to say, if it did arise, the only alternative that is available would be a suspended sentence. It was rightly pointed out by counsel for the Crown that if I settled upon a sentence of two years, or less, all things taken into account, the prisoner would not be eligible for either an Intensive Correction Order, or in the case of a sentence of 18 months or less, Home Detention.

44. I do not believe in the context of concluding that a sentence of two years or less was appropriate, that a suspended sentence would of its terms reflect that sufficient weight being given to personal or general deterrence. That is not to say the matter is completely without hope for the reasons I have identified. I appreciate if the prisoner does not understand this, I stated this imprisonment involves a considerable disruption to the prisoner’s life. He is trying to get it back on the rails and he has been given credit for getting his life back on the rails by the non‑parole period that I have determined and my recognition that an extended period of supervision is required. But the bottom line is the community would demand of me to impose a term of imprisonment for this crime, particularly in the circumstances of the record of the prisoner, for the reasons I have identified.

18. I have made thus a finding of special circumstances pursuant to s 44 of the Act and I have endeavoured to adjust the relationship of the non‑parole period to a balance of the sentence, to provide an adequate time for the prisoner to receive appropriate supervision to adjust to community living and to receive what I see as the extended and intensive assistance of the Parole Authority to avoid offending in the future. Bearing in mind the risks that are there of him offending in the future, unless certain minimum standards are met by him, the matter is entirely in his hands.

19. Mr O’Donnell would you mind standing up please, thanks very much. In relation to the offence to which you have pleaded guilty, you are convicted. You are sentenced to a term of imprisonment by way of non‑parole period of nine months. That will date from 21 October 2015 and on my calculation will expire on 20 July 2016. I direct that you be released to parole at the expiry of your non‑parole period. I fix in relation to that sentence of imprisonment a balance of sentence of one year and ten months to be supervised by the Parole Authority. I will leave it for the Parole Authority to fix the relevant conditions of your parole.

20. I recommend at this stage that you be kept at Bathurst Correctional Centre having regard to the medical evidence I have as to its capacity to treat you. Of course the classification of you is not for me. I do not classify prisoners, and rightly so. I have no say over that, I want you to understand that. I propose as I have said earlier to provide the Corrective Services officers shortly in a sealed envelope addressed to the Justice Health Unit at Bathurst Gaol the report of the Professor to ensure that they have an up to date picture at least as far as hat report is concerned. It is dated August I realise that, and take such sufficient steps as are necessary and I gather you have got there in the dock a number of items including your medication.

21. OFFENDER: Yeah my medication.

22. HIS HONOUR: You must appreciate if you lurch into this type of conduct, whatever be the circumstances, the likelihood of you returning to gaol is great.

23. Yes, thank you. Yes just take a seat for a moment. Now to the Correctives Services Officers, I am going to put a report relating to the health of this prisoner in a sealed envelope. Would you kindly convey that when he is returned to Bathurst Gaol to the Justice Health Unit. It is important that they have it, it’s from a Professor of Medicine at the University of New South Wales. Also a Director of a particular unit at the St Vincent’s Hospital.

24. This matter has been the subject of enquiry by the way of Justice Health and the Nurse Unit Manager I think she’s called, has actually written a letter to me or to the Court setting out certain particulars. Her name is, you probably know it off by heart but my understanding is her name is Ms Pauline Hearst. You probably know her of course, and I’d be very grateful if that letter was delivered when the prisoner is assessed on his admission to custody. He has all of his medication with him, it would be most important that he have that available to him subject to further direction of the officers of Corrective Services and the Justice Health Unit. It is all necessary for his good health.

25. Now Mr Crown, anything from you?

26. CLAYTON: Nothing arising your Honour.

27. HIS HONOUR: Anything from you Ms Haywood?

28. HAYWOOD: No, nothing, no your Honour, thank you.

29. HIS HONOUR: Right Mr O’Donnell do you understand that sentence I have imposed?

30. OFFENDER: Yes I do your Honour.

31. HIS HONOUR: It means that as it stands to the present time, subject to the Crown’s rights of appeal and your right of appeal it stands that you will be released to parole in nine months’ time subject to Parole supervision for a period of one year ten months. That’s a significant adjustment of the relationship of the non‑parole period to the balance of sentence, but in my view it’s necessary in this case. I can understand why on the other matter that you were sentenced for the relationship was not so great, the offending there was as I say far greater than here. Yes thank you Mr O’Donnell you’re excused, thank you very much ma’am, sir.

32. OFFENDER: Thank you your Honour.

33. HAYWOOD: Thank your Honour.

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Decision last updated: 18 October 2017