R v PH

[2023] NSWDC 462

District Court

New South Wales

Medium Neutral Citation:

R v PH [2023] NSWDC 462

Hearing dates:

13 October 2023

Date of orders:

23 October 2023

Decision date:

23 October 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 PH is convicted.

2 I impose an aggregate sentence of 2 years and 9 months.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (23 October 2023) and expire on 22 July 2026.

4 The offender must report to Community Corrections on or before 4pm on 30 October 2023.

5 The standard conditions of the order apply:

(a) the offender must not commit any offence; and

(b) the offender must submit to supervision by a Community Corrections Officer.

6 The following additional conditions apply:

(a) the offender must receive treatment for his mental health as reasonably directed by Community Corrections.

Catchwords:

CRIME — Sexual offences — Act of indecency

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Crimes (Sentencing Procedure) Amendment Act 2022

Criminal Procedure (Sexual and Other Offences) Act 2006

Cases Cited:

Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147

Bektasovski v R [2022] NSWCCA 246

R v Bowie [2023] NSWSC 207

R v Catell [2019] NSWCCA 297

R v MJR (2002) 54 NSWLR 368

R v Olbrich (1999) 199 CLR 270

R v Watson (No 3) [2022] NSWSC 1693

R v Youkhana [2004] NSWCCA 412

TJ v R (2009) 76 NSWLR 167

Category:

Sentence

Parties:

Rex (Crown)
PH (Offender)

Representation:

Counsel:
C Parkin (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Miers Legal (Offender)

File Number(s):

2021/358521

Publication restriction:

None

JUDGMENT

Introduction

1. PH (the offender) appears for sentence after pleading guilty in the Local Court to two counts of assault female and commit act of indecency to female under 16 years of age, contrary to s 76 Crimes Act 1900. The maximum penalty for the offence is six years imprisonment.

2. The offender also asks the Court to take into account, five counts of assault female and commit act of indecency to female under 16 years of age, contrary to s 76 Crimes Act 1900 on a Form 1 schedule.

3. The offender’s name has been anonymised because some of the offences were committed when he was a young person.

Approach to Sentencing

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

6. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

7. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147.

Preliminary Legal Issues

8. The parties agreed that the Court was required to sentence the offender on the basis of current sentencing patterns and practices, but for different reasons.

9. The Crimes (Sentencing Procedure) Amendment Act 2022 (the Amendment Act) commenced on 18 October 2022. The Amendment Act:

1. introduced s 21B Crimes (Sentencing Procedure) Act 1999 into the Act and repealed s 25AA(1) of the Act;

2. introduced s 67(2)(h) of the Act, that prevents an Intensive Corrections Order being imposed where an offence under a previous enactment is substantially similar to an offence referred to in s 67(2)(a)-(g).

10. It was common ground that:

1. the amendments applied to proceedings commenced after 18 October 2022;

2. the offender was arrested and charged on 17 December 2021;

3. the matter was first mentioned in the Local Court on 10 January 2022;

4. the offender entered his pleas of guilty in the Local Court on 20 April 2023 and was committed to the District Court for sentence;

5. the offender first appeared in the District Court on 19 May 2023 and the charges were listed for sentence on 13 October 2023.

11. The Crown contended that the sentence proceedings commenced in the District Court and therefore s 21B and s 67(2)(g) of the Act apply. The Crown conceded that if s 67(2)(g) of the Act did not apply, then it could not contend that an Intensive Corrections Order was an unavailable sentencing option.

12. The offender contended that the proceedings were commenced by the filing of the Court Attendance Notices in the Local Court and thereby s 25AA(1) of the Act applied and s 67(2)(h) did not.

13. Clause 95 of Schedule 2 Crimes (Sentencing Procedure) Act 1999 provides:

The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2022 do not apply to proceedings that commenced before the commencement of the amendments.

14. In TJ v R (2009) 76 NSWLR 167 the Court of Criminal Appeal considered a similar provision that relevantly provided, “the amendments made by the Criminal Procedure (Sexual and Other Offences) Act 2006 do not extend to any proceedings commenced before the commencement of the amendments…”.

15. The Court of Criminal Appeal followed earlier authority to the effect that criminal proceedings commence in New South Wales when a person is arrested and charged, or an information is laid before a magistrate.

16. TJ was followed by Walton J in R v Watson (No 3) [2022] NSWSC 1693 at [112]-[115] when considering clause 95 of schedule 2 of the Act.

17. The Crown relied on the decision of R v Bowie [2023] NSWSC 207. In Bowie, Yehia J followed a Court of Criminal Appeal decision of Bektasovski v R [2022] NSWCCA 246 that construed the phrase “proceedings of which the hearing began before the commencement of the amendment”. Consistent with earlier authority that a trial by indictment begins when an accused is arraigned, the Court of Criminal Appeal decided in Bektasovski that the trial commenced a period of months before the jury was empanelled.

18. With respect, Yehia J’s reliance on Bektasovski was misplaced, because the phrase construed in it was substantially different to the words of clause 95 of schedule 2. Further, in Bowie, reliance on either date produced the same result, and that part of her Honour’s reasons were obiter.

19. For these reasons, I prefer the decision of Watson (No 3) and I am satisfied that the proceedings were commenced when the offender was arrested and charged on 17 December 2021, and thereby s 21B and s 67(2)(g) of the Act do not apply to this sentence.

20. Accordingly, the Court is required to apply s 25AA(1) of the Act as it was prior to the amendments, which relevantly provided:

A court must sentence an offender for a child sexual assault offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

21. It was common ground that the s 76 offence was a child sexual assault offence as defined in s 25AA(1) because it is set out in Column 1 of Schedule 1A of the Crimes Act 1900.

22. In R v Catell [2019] NSWCCA 297 the Court of Criminal Appeal (Price J; Hoeben CJ at CL agreeing) set out the procedure to be applied under s 25AA(1) at [123]-[126], as follows:

123   When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing judge should:

(a)   Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned;

(b)   Determine the facts as now available to the court;

(c)   Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence;

(d)   Identify where the offence falls in the range of objective gravity of that offence;

(e)   Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSP Act;

(f)   Set a non-parole period in accordance with s 44 of the CSP Act as it operates at the time of sentence, and

(g)   Fix the balance of the term of the sentence.

124 When an aggregate sentence is to be imposed s 53A of the CSP Act is to be followed.

125   The sentencing judge should expressly state that the offender has been sentenced in accordance with s 25AA(1) and that the court has had regard to the trauma of sexual abuse on the child in accordance with s 25AA(3).

126   The sentencing judge must have no regard to patterns or practices of sentencing which may have operated at the time of the offending.

23. Section 76 Crimes Act 1900 was repealed in 1981, when the modern definition of sexual assault, involving all forms of penetration, was introduced.

24. I am unable to discern any sentencing pattern for indecent assaults of the kind that could be prosecuted under s 76 Crimes Act 1900. The modern equivalent of the offences to which the offender has pleaded guilty are much more serious offences, by reference to the higher maximum penalty and the imposition of significant standard non-parole periods. It is not as simple as drawing a comparison between s 76 and s 66DA, as the Crown suggests that I should, because the offences for which the offender is to be sentenced both involved penetration which would amount to an aggravated sexual assault that could not be considered under s 66DA without offending the De Simoni principle.

25. I have dealt with the balance of the matters outlined in Cattell later in these reasons.

26. For the sake of clarity, in my view an ICO is an available sentencing option because s 67(2)(h) of the Act does not apply.

Facts

27. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

28. The complainant was born in 1970.

29. The complainant’s family attended a church on the northern beaches of Sydney and the complainant and her brother attended Sunday School at the church. The offender was a sailor in the Navy who would attend church when on leave. The offender met the complainant’s family through involvement with the church. The offender befriended the complainant’s parents and regularly visited their house.

30. During the visits between 1974 and 1978, the offender indecently assaulted the complainant. The offender also took the complainant and her brother on outings. The offender did not assault the complainant during these outings.

Sequences 6 and 7 (Form 1)

31. The offender first indecently assaulted the complainant when she was four or five years of age and the offender was between 15 and 17 years of age. On a Saturday or Sunday, the offender came to visit the complainant’s home. The offender, the complainant and her brother were in the rumpus room. The complainant’s brother left the room to ride his bike in the backyard. The offender was reading the complainant a book. The offender was seated on a bench and the complainant was standing in front of him. He touched her breasts (Sequence 6 – Form 1) and rubbed her vagina on the outside of her underwear and dress (Sequence 7 – Form 1). The complainant did not like what the offender was doing but did not understand. She thinks someone came into the room and the offender told her to sit beside him.

32. From that point, when the offender came to visit, the complainant started hiding from him because she did not like what the offender was doing.

Sequences 8 and 9 (Form 1)

33. When the complainant was in Year 1 of school and the offender was 18 or 19 years of age, the complainant was in the sunroom with her brother when she saw the offender’s car pull up in front of the house. She hid under the house. Her mother called her name and then the offender told her mother, “She’s playing hide and seek, I will go and find her”. The complainant heard footsteps going from the front to the back of the house. The offender and the complainant’s brother came down the back stairs to look under the house. When she saw her brother, she came out from under the house.

34. The offender, the complainant and her brother went upstairs to the rumpus room. The offender sent the complainant’s brother away to do something. She sat on his lap as he sat on the bench in front of the window. He put his hand up her school dress, pulled the complainant’s underwear aside and put his finger into the vagina (Sequence 8 – Form 1).

35. The offender then put her hand on his erect penis on the outside of his pants. He unzipped his jeans and pulled out his penis. The offender put the complainant’s hand on his penis. The complainant kept her hand there (Sequence 9 – Form 1). Whilst this was occurring, the offender continued to move his fingers inside her vagina. The offender did not say anything. The offender and the complainant heard the complainant’s brother coming back to the rumpus room and the offender pulled his hand out of her vagina and zipped up his pants.

Sequence 10; Sequence 11 (Form 1)

36. On a Sunday afternoon in 1977, after Sunday School, the offender came over to the complainant’s house for lunch. The complainant’s family were all home. At the time, the complainant was six or seven years old, and the offender was 18 or 19 years old.

37. The offender arrived at the complainant’s house and the complainant ran to hide under the house. The offender came down to the backyard and yelled, “I found you”. The complainant went back inside the house with the offender.

38. The offender took the complainant into the rumpus room. There was no one else in the room. The offender sat the complainant on his lap and put his hand up the complainant’s dress. He pulled the complainant’s underwear to the side and put his finger inside her vagina (Sequence 10).

39. He then undid his slacks and pulled out his penis. The offender put the complainant’s hand on his penis and put his other hand on top of the complainant’s hand. The complainant remembers looking at the offender in horror. He said to her, “Don’t tell your parents. They won’t believe you as I am their friend and you are just a silly naughty girl” (Sequence 11 – Form 1).

Sequence 12

40. In 1978 during school holidays, the complainant was taken to the zoo with her brother by her father. At the time, she was 7 or 8 years old and the offender was between 19 and 20 years of age.

41. Later that afternoon, the complainant, her brother and father and the offender were at the family home.

42. The offender took the complainant into the rumpus room. The offender sat the complainant on his lap and put his hand underneath her dress from under her thigh. The offender pulled the complainant’s underwear aside and put his finger into her vagina. The offender moved his fingers around inside her vagina. His hand was covered by her dress.

43. The complainant’s father came into the room with a cup of tea or coffee. He stood in front of the offender and complainant while the offender continued to move his finger inside her vagina. The complainant remembers looking at her father and wanting him to intervene, but he did not see what was occurring. The offender pulled his hand out of the complainant’s vagina, and she got up and left the room.

44. The complainant’s mother recalls times when she went to the rumpus room and the complainant was sitting on the offender’s lap.

45. The complainant’s family moved away in 1981 or 1982.

46. In 1994, when the complainant was 24 years of age, she told her mother about the offences.

47. A number of years later, the complainant’s mother became aware of where the offender was working and the complainant’s uncle, who was a minister for the Baptist church, organised a meeting at a house in Burwood between the complainant, the offender and the offender’s employer. The offender attended this meeting voluntarily.

48. During the meeting, the complainant told the offender about the impact of his offending on her relationship with her parents, her self-confidence and her trust in others. The offender told her that he could not remember the offending, but that he “probably did do it”. The complainant spoke for about 10 minutes and the offender was reportedly weeping uncontrollably and asking for forgiveness. The complainant decided not to report the matter to police at this point because she was not ready to. She called the offender two weeks after the meeting and said she was forgiving the offender for her own sake, not his.

49. The complainant reported the matter to police in January 2019.

50. The offender was arrested at his residence in December 2021. He participated in an interview with police. He told police that he was sexually abused as a child. He declined to answer questions about specific allegations but stated that he was a “stupid young bloke”. He told police that he had been told by the complainant and her father that they forgave him for the offences, but that he did not feel as if he deserved forgiveness. He proactively informed police of his previous interstate offending and that he had undergone psychological therapy as a condition of his release.

Sentencing Assessment Report

51. A Sentencing Assessment Report (SAR) was provided to the Court. It can be summarised as follows.

52. The offender currently resides in a regional city with his wife of 35 years. They have five children and six grandchildren. He frequently travels to Melbourne to care for his elderly parents. He is self-employed.

53. In 1981, he was convicted of four indecent assaults against children in Victoria. He has no prior criminal history in New South Wales.

54. At the time of the offences, he understood that his behaviour was wrong, but did not believe it was serious. When he was arrested in Victoria in 1981, he knew that his behaviour was serious. He told the author of the SAR that he understood the offending to be serious, but that the mediation between himself and the complainant was sufficient punishment for the offences, an opinion shared by his family members.

55. He attributed his offending behaviour to being lonely and desiring companionship. He reported being bullied and feeling isolated in the Navy. He reported suffering from depression at the time, although he did not receive a formal diagnosis. He reported seeking companionship from the complainant as he was not accepted by peers his own age. He described his offending as opportunistic. Following his arrest in 1981, he had three years of therapy which he identified helped him relate to people his own age. He reported his urges to sexually offend against children ceased following his arrest in 1981. He told the author of the SAR that he does not fully understand his past offending behaviour but has been trying to do so through psychology sessions.

56. The offender was sexually abused by boarders living in the family home from the age of three. He recognised the impact of his actions on the complainant and her family. The author of the report opined that he appeared remorseful, but at that time, this was mixed with self-concern.

57. He expressed a willingness to engage in intervention and community service work. He was assessed as at a very low risk of reoffending and suitable to perform community service work that could be provided at the rate of five hours per month.

The Offender’s Case on Sentence

58. The offender tendered the following documents:

1. psychiatric report of Dr Olav Nielssen, psychiatrist, dated 3 October 2023;

2. medicolegal report of Susan Knight, psychologist, dated 31 January 2023;

3. medicolegal report of Susan Knight dated 30 August 2023;

4. Psychological Assessment Report by Nicole Sudmalis, psychologist, dated 10 January 2023;

5. letter from Peter Logue, consultant psychologist, dated 6 April 2004;

6. report card from teacher dated 1967;

7. letter to Reverend Kel from offender dated 5 September 2000;

8. letter from his mother’s general practitioner dated 21 August 2023;

1. letter of apology from the offender dated 13 October 2023;

2. a bundle of character references;

3. two family photographs;

4. chronology of proceedings.

59. The following is a precis of the evidence relied on by the offender.

60. The offender is the eldest of three siblings. His father worked as a management consultant. His mother worked as a librarian. His family lived in Sydney, before moving to Melbourne for his father’s work.

61. When he was 14–18 months old, he consumed kerosene that had been kept in a soft drink bottle, resulting in him spending several days in hospital to recover.

62. He was slightly delayed in reaching developmental milestones and had dyslexia along with difficulties understanding and comprehending verbal communication as a child. These learning difficulties continued into his schooling. From the age of three years old, he was repeatedly sexually abused by borders staying with his family. He reported engaging in sexually experimentative behaviours with other children which Dr Nielssen opined was likely related to his experience of sexual abuse as well as the delay in the acquisition of social skills.

63. He reported experiencing persistent feelings of rejection during childhood and difficulty making friends. He was repeatedly bullied during high school.

64. The offender attended a “free choice” high school where the curriculum was not strict. He was having ongoing learning difficulties with literacy and numeracy and spent most of his time developing his art, music and sporting skills. He can play 11 musical instruments to a reasonable standard. He left high school after completing Year 10 in 1974 and joined the Navy. He had a special interest in ships and was dedicated to learning more about ships during his six years in the Navy. He was bullied and felt very isolated during his time in the Navy. He joined the Navy band and performed at several public occasions, including the AFL grand final and for the Queen. The offences took place whilst the offender was in the Navy. He met the complainant’s father through the Navy and met the rest of the family at church.

65. When the offender was 22 years old, he attended Bible College and had to re-learn how to read, spell and write.

66. He reported being relieved when he was arrested for the Victorian offences at age 22. He received weekly psychological therapy as part of the good behaviour bond imposed for the Victorian offences. He told Dr Nielssen that the psychologist found at that time that he had “an emotional age of fourteen” at age 22. During the course of this counselling, he came to realise that his conduct was wrong and how immature he was compared to other people his own age. He continued counselling for some time after the court order expired. He reported that following the counselling, he had no sexual urge or compulsion toward children.

67. Following his time in the Navy, the offender was a Minister with the OAC Ministries for approximately 18 years. He worked with all age groups as a motivational speaker and teaching music and art. He would often engage with groups of more than 100 children and adults at a time and was known for his communication and “crowd control” skills. He left the Ministry in 2000 and attended Computer College. He completed the course, despite difficulties and having to receive extensive help from his father and course lecturer. He worked on people’s computers but ceased this due to seeing pornographic material on his clients’ computers, which he found triggered his traumatic memories.

68. In 2007, he was employed to teach saxophone to groups of students, but his criminal history came to light and, following a tribunal hearing, he was prohibited to teach in any NSW schools or TAFE institutions. As a result, he has had ongoing difficulties obtaining work in his areas of interest. He did pastoral work for his wife’s father for 11 years, before finding work detailing cars for Alessi Motors. He worked in this job for six years before he and his wife moved to a regional city to be closer to family. He and his wife currently run an Airbnb and he babysits his grandchildren and cares for his elderly parents. He remains closely involved in local church activities.

69. He did not have any sexual relationships in his twenties. He met his wife at age 30. She is a nurse and they have five children.

70. The offender had been a non-drinker for most of his adult life. At age 60, he began consuming a glass of red wine at night for its purported health benefits. He denied ever consuming any prohibited drugs or abusing medication.

71. He was diagnosed with obsessive compulsive disorder in 1996, after experiencing panic attacks and a blood phobia for approximately two years, for which he was prescribed Zoloft. He saw psychologist, Peter Logue, regularly from 2008 to manage anxiety and panic attacks in the aftermath of having to cease work as a music teacher. He has been accessing psychological treatment since March 2022 with Susan Knight. He has been increasingly stressed and anxious due to several psycho-stressors, including this court matter.

72. Ms Sudmalis administered assessments of the offender’s intellectual functioning, which revealed his overall intellectual ability was in the Average range, as were his verbal comprehension and processing speed. His nonverbal reasoning abilities, ability to sustain attention, and working memory were in the Low Average range.

73. Dr Nielssen diagnosed the offender with Anxiety Disorder (generalised anxiety disorder and obsessive compulsive disorder) and dyslexia.

74. Dr Nielssen opined that it was likely that at the time of the offences, the offender was emotionally immature and impaired in his awareness of the wrongfulness of his conduct, and also in his ability to exercise appropriate control over his behaviour. He also opined that he has a low or negligible risk of reoffending.

75. Ms Knight opined, after administering psychometric testing, that the offender meets diagnostic criteria for Posttraumatic Stress Disorder (PTSD) relating to his childhood experience of sexual assault and subsequent events.

76. The offender’s wife described in her letter to the Court how the offender has battled mentally with the dysfunction of his youth and the court proceedings. She described him as imprisoning himself for many years with regret for things that happened in his youth.

Consideration

Objective seriousness

77. The offences were not isolated and took place over a number of years. There was a 12 year age gap between the complainant and the offender. There was some limited pressure applied to secure the complainant’s silence in that the offender told the complainant not to tell her parents because she would not be believed. There were no threats or pressure applied to secure the complainant’s compliance. There was no relationship of authority. The offences had some immediate impact on the complainant, she did not like what the offender did to her and she would hide when the offender came to her house. The offences were committed for the offender’s sexual gratification at a time when he was attracted to children. I am not satisfied beyond reasonable doubt that the offences were planned or that the offender attended the complainant’s home intending to indecently assault her. The offending was opportunistic.

78. The complainant was aged somewhere between six and eight at the time of the offences and was a vulnerable victim.

79. Sequence 10 involved digital penetration of the complainant’s vagina. The conduct occurred over short period of time.

80. Sequence 12 involved digital penetration of the complainant’s vagina surreptitiously in the presence of her father. The conduct occurred over a short period of time.

81. The digital penetration of a young girl’s vagina is a serious kind of an indecent assault.

82. I am satisfied that the offences were traumatic for the complainant and that they have caused long term psychological harm to her.

83. The offender had a deprived upbringing marked by sexual abuse and social isolation. He had learning difficulties, was bullied at school and had trouble making friends. He joined the Navy in Year 10 and continued to be bullied and isolated. He experienced significant anxiety symptoms including panic attacks and obsessive and compulsive rituals, low self-esteem and was emotionally immature at the time of the offences. His ability to control his behaviour and to judge the wrongfulness of his actions was impaired as a result of his mental condition. In all of the circumstances, I am satisfied that his moral culpability for the offences is significantly reduced.

84. I have taken into account the maximum penalty for the offences, which at the relevant time was 6 years imprisonment.

Deterrence

85. General deterrence is of great importance when sentencing offenders for sexual offences against children.

86. General deterrence can be afforded less weight when an offender has a mental condition because they are not an appropriate person to be made an example of. In this case there is a strong causal connection between the offender’s mental condition and the offending conduct. He had an impaired ability to recognise the wrongfulness of his actions and to appreciate the consequences of them. The offender was emotionally and psychologically immature and his immaturity was a significant factor in the commission of the offences. As a result, general deterrence, denunciation and retribution can be afforded less weight.

87. There is very little need for specific deterrence in this case. The offender sought treatment following later offences in 1981. He underwent treatment for a considerable period. All of the evidence confirms that he poses very little risk of reoffending, as a result of that treatment and his life progression.

Aggravating factors

88. The offences took place in the home of the complainant: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

89. The Crown contended that the aggravating factor provided for by s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 was made out. It is well established that premature sexual activity can and does cause long term physical and psychological harm: R v MJR (2002) 54 NSWLR 368 at [57]. I am constrained by the law in how I can use the content of the Victim Impact Statement. On the evidence, I am not satisfied beyond reasonable doubt that the harm suffered was greater or more deleterious than may ordinarily be expected for these offences: R v Youkhana [2004] NSWCCA 412 at [26]. The aggravating factor is not established.

Mitigating factors

90. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). This offending occurred prior to the Victorian matters. The offender has not reoffended since 1981 and lived a law-abiding life since then.

91. The offender is unlikely to reoffend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The expert evidence is all one way that the offender presents a very small risk of reoffending. I am satisfied that the offences were committed as a result of the offender’s mental condition and his immaturity at the time of the offences. He received significant treatment for his mental condition that was successful in eradicating his attraction to children. Since then he has led a productive life. His current life circumstances are stable and I am satisfied that he is unlikely to reoffend.

92. The offender has excellent prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender engaged in extensive psychological treatment for his mental condition following the 1981 offences. He has continued to engage with psychological treatment after this when he has needed to. He has a strong support network and a good work history.

93. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has always accepted responsibility for his actions and recognised from an early stage that what he did was wrong. He met with the victim and her parents in about 2000 and at that time he accepted that he sexually abused her, sobbed and begged for forgiveness. In his letter to the Court, he described his actions as “abhorrent” and “evil”. He has been entirely open with the writers of the various reports and his referees and expressed his remorse to them. I accept that he is genuinely contrite. His pleas of guilty also indicate remorse.

94. The offender’s risk of reoffending is so low that he would not qualify to participate in sex offender treatment programs in custody. If he receives a community based disposition, he will be assessed for treatment for any dynamic risk factors, but it is difficult to conclude that he has any such risk factors that warrant treatment.

95. I have taken into account that two of the Form 1 offences were committed when the offender was a young person. Had the offender been dealt with for these offences closer to the commission of them, he was young and immature, and it would have been appropriate to place more emphasis on opportunities for rehabilitation.

96. This is an unusual case. The offender has not lived his life free from punishment or opprobrium for his actions. When he was approached by the complainant in 2000, he made a full confession and was visibly upset. The complainant chose not to make a complaint to the police at that time. The offender has lived with the shame of his actions for many years and has been subject to the possibility that these proceedings could be brought at any time. I am satisfied that the offences have had a significant impact on the offender for a lengthy period and that he has suffered some extra curial punishment as a result. Further, in the intervening period, the offender has undergone extensive treatment to comprehensively deal with his sexual proclivity that existed at the time of the offences and up to about 1981. By all of his actions the offender has demonstrated a strong willingness to facilitate the course of justice.

Penalty

97. PH is convicted.

98. I have taken into account the Victim Impact Statement of the complainant that was read by her in Court, with some assistance.

99. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 10 – 2 years;

• Sequence 12 – 2 years and 3 months.

100. I impose an aggregate sentence of 2 years and 9 months.

101. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

102. The offender presents no risk to community safety. At the time of the offending, the offender had a complex mental condition that was causally related to the offending. Accordingly, general deterrence, retribution and denunciation can be provided less weight. The offender has demonstrated that he is rehabilitated from the condition that led to the offending conduct.

103. The offender has a complex mental condition that requires tailored assistance, that can be best provided in the community.

104. An order that the sentence be served by an ICO will make the offender accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the victims and the community.

105. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (23 October 2023) and expire on 22 July 2026.

106. The offender must report to Community Corrections on or before 4pm on 30 October 2023.

107. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

108. The following additional conditions apply:

1. the offender must receive treatment for his mental health as reasonably directed by Community Corrections.

109. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.

110. The offender must attend the Registry to confirm his residential address so that a copy of the order can be posted to him.

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Decision last updated: 31 October 2023