R v Porter (No 3)
[2022] ACTSC 236
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Porter (No 3) |
Citation: | [2022] ACTSC 236 |
Hearing Date: | 26 May 2022 |
Submissions last received: | 28 July 2022 |
DecisionDate: | 1 September 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [318] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sexual offences – use of child to produce child exploitation material – engage in relationship with child under special care – engage in conduct with intention of making it more likely the young person would engage in sexual activity – possess child exploitation material – approach to objections to portions of victim impact statements – consideration of Verdins principles and paedophilic disorder – where disorder increases need for specific deterrence – appropriate discount for plea of guilty where disputed facts hearing required – whether additional discount for assistance in administration of justice warranted |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 64, 65, 66 |
Cases Cited: | Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 |
Texts Cited: | Jamie Walvisch, Andrew Carroll and Tim March, ‘Sentencing and mental disorder: the evolution of the Verdins Principles, strategic interdisciplinary advocacy and evidence-based reform’ (2021) Psychiatry, Psychology and Law 1 (ahead of print) |
Parties: | The Queen ( Crown) Stephen James Porter ( Offender) |
Representation: | Counsel A Chatterton ( Crown) J Pappas ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender) | |
File Number: | SCC 40 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 2 September 2021, Stephen Porter (the offender) was arraigned and entered pleas of guilty to the following offences on a revised indictment:
(a)Count 1 (CC2020/11987): Use child under 12 years of age to produce child exploitation material, contrary to s 64(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 15 years imprisonment, a fine of $240,000 (1500 penalty units) or both. Count 1 is in respect of the victim Alexander Goodwin (a pseudonym).
(b)Count 2 (CC2020/7714): Engage in a sexual relationship with a child under special care, contrary to s 56(1) of the Crimes Act. The maximum penalty for this offence is 25 years imprisonment. Count 2 is in respect of the victim Wesley Mason (a pseudonym).
(c)Count 3 (CC2020/13262): Engage in conduct with a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature (grooming), contrary to s 66(1)(b) of the Crimes Act. The maximum penalty for a first offence against a young person 10 years or older is 7 years imprisonment. Count 3 is in respect of the victim Riley Priestley (a pseudonym).
(d)Count 4 (CC2020/11989): Possess child exploitation material, contrary to s 65(1) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment, a fine of $112,000 (700 penalty units) or both. Count 4 is in respect of the victim Jonathan Dalton (a pseudonym) and other unidentified victims.
The following offence is also to be taken into account in the offender’s sentence for Count 1 on a schedule in accordance with pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act):
(e)An offence of use child over 12 years of age to produce child exploitation material, contrary to s 64(3) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000 or both. This offence was Count 2 (CC2020/11988) on the original indictment that was filed against the offender. This offence also concerns the victim Alexander Goodwin and concerns offending between 12 September 2011 and 22 November 2011 when Alexander Goodwin was aged 12 years to 13 years.
Pursuant to s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the victims have all been anonymised by the substitution of different names in this judgment. The pseudonyms are as set out above. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file, and not published on the internet.
Agreed Facts and Disputed Facts
The agreed facts in relation to Counts 1, 3 and 4 are set out in the Agreed Facts, which forms part of the Crown Tender Bundle. Count 2 was the subject of a disputed facts hearing requiring the victim Wesley Mason to give evidence. The factual basis on which the offender is to be sentenced for Count 2 is to be found in the judgment of R v Porter (No 2) [2022] ACTSC 50 (R v Porter (No 2)). However, the Agreed Facts also contain facts in relation to Count 2 that were not in dispute at the disputed facts hearing. The agreed facts may be summarised as follows.
At all relevant times between 1 January 2009 to 28 June 2020, the offender resided at an address in MacGregor in the ACT (the offender’s address). The offender’s residence is a two-story house, with living areas on the upper floor and a basement and storage room on the lower level. The upper floor consists of four bedrooms, with the master bedroom having an ensuite bathroom. The lower level of the offender’s residence has recreational equipment, including a pool table and dartboard. The residence also has a swimming pool in the backyard.
The offender was employed by the ACT Government in IT, but also coached Australian Rules Football (AFL) at both the Belconnen Magpies Football Club and Ainslie Football Club in a volunteer coaching role.
As a volunteer football coach, the offender coached several age groups in a group team environment. In addition to group team coaching, the offender also offered selective private coaching to young developing players. These private coaching sessions would occur during weekday afternoons and evenings, and on weekends.
The offender was acquainted with a Mr Telly Neale (aka “Tel”). Mr Neale resided in the United Kingdom and was a friend of the offender. They had met when the offender worked for a time in England.
The offender and Mr Neale would often communicate over the phone and platforms such as Facebook and Whatsapp. These communications, specifically their communications via Whatsapp, spanned from 2019 to 2020. The offender and Mr Neale also met multiple times in Queensland when Mr Neale was visiting from the United Kingdom.
Following a complaint to police on 6 June 2020 by Wesley Mason of sexual offending by the offender, police commenced an investigation into the offender. As set out below, on 27 June 2020 police executed a search warrant at the offender’s premises and seized several items and electronic devices. The offender was arrested at that time and transferred to the ACT Watch House. During transportation the offender said to police, “Well, I’ve had a good life. I’ve made it to 50. I’ve done well”.
Count 1: Use child under 12 years of age to produce child exploitation material
The offending of Count 1 is particularised as occurring between 1 January 2009 and 14 September 2011, when Alexander Goodwin was aged 9 years to 12 years. As noted, the offender is to be sentenced in relation to this offence taking into account an offence that he used Alexander Goodwin to produce child exploitation material when Alexander Goodwin was aged 12 years to 13 years, between 12 September 2011 and 22 November 2011.
Between 1 January 2009 and 22 November 2011, Alexander Goodwin played AFL for a team that the offender was affiliated with. During this period, Alexander Goodwin was aged 9 years to 12 years.
In 2009, when Alexander Goodwin was aged about 11 years, he was playing in the under 12’s team for the AFL club. From this time, the offender was Alexander Goodwin’s football coach.
Alexander Goodwin would regularly attend the offender’s residence, anywhere from three to four times during the week. During these visits to the offender’s residence, Alexander Goodwin would often spend the night and sleep alone in one of the spare bedrooms.
When visiting the offender, Alexander Goodwin and the offender would participate in recreational activities together. These activities included kicking the football, swimming in the pool, playing darts and using the offender’s pool table located downstairs in the basement. Alexander Goodwin found the offender’s house a fun place to visit. Alexander Goodwin would also often enter the offender’s home office and watch videos on the offender’s computer.
On the occasions when Alexander Goodwin used the offender’s swimming pool, Alexander Goodwin would get changed into his swimwear at the offender’s residence. Alexander Goodwin would also use the bathroom and shower facilities at the offender’s residence.
On numerous occasions when Alexander Goodwin would visit the offender, they would make videos of themselves playing with Nerf toy guns and other activities including dressing up as zombies and playing hide and seek games.
Alexander Goodwin was often wearing his swimwear in the videos. The videos were filmed by the offender on his mobile phone with a view to uploading them to YouTube. Some of these videos were filmed in or around 2011, and Alexander Goodwin was aware of approximately seven of these videos which were made with his consent.
When Alexander Goodwin would visit the offender, the offender also captured further videos of Alexander Goodwin without his knowledge.
The videos captured without Alexander Goodwin’s knowledge included videos of him swimming in the offender’s pool in his swimwear, playing darts, and playing videogames in the offender’s home office.
These videos depicted Alexander Goodwin:
(a) Wearing a pair of blue “Speedo” style swimmers playing in the offender’s swimming pool. These images and video focused on Alexander Goodwin’s buttocks and genital areas.
(b) Playing darts and video games at the offender’s house.
(c) Sitting on the offender’s lap whilst they both watched videos on a computer in the offender’s home office.
(d) Seated inside a car with the offender and engaging with him in conversation.
In addition to the videos captured of Alexander Goodwin without his knowledge, the offender went and placed a camera in a discreet location in one of the bedrooms of his residence.
This discreet camera captured footage of the offender leaving the room and telling Alexander Goodwin that he could get changed. Alexander Goodwin was not aware that the offender was filming him at these times. After the offender leaves the room to allow Alexander Goodwin to get changed, the videos depict Alexander Goodwin entering the room, removing his clothes, and changing into his swimwear. The camera was angled to focus on Alexander Goodwin’s buttocks and genitals. The camera captured footage of Alexander Goodwin’s naked body including his buttocks and penis when he was in the process of changing clothes. The camera was approximately two metres away from Alexander Goodwin. A table summarising the videos was annexed to the Agreed Statement of Facts.
On 26 March 2020, the offender conversed with Mr Neale via Whatsapp. In the messages, the offender referenced Alexander Goodwin. The offender and Mr Neale were conversing about another footballer that the offender was coaching, Riley Priestley, and how his training with Riley Priestley was similar to the early days of kicking the footy with “Alexander” or “special training” with Wesley Mason. The offender and Mr Neale adopted an abbreviated nickname for Alexander Goodwin.
The offending in relation to Alexander Goodwin came to the attention of police when reviewing and examining devices seized from the offender’s residence on both 27 June 2020 and 15 July 2020 and when conducting investigations into complaints made by Wesley Mason. Police located the material depicting Alexander Goodwin in a folder titled Alexander’s real first name on a black “WD” external hard drive.
On 27 June 2020 during the offender’s record-of-interview (ROI) with the police, the offender made various statements including that:
(a) He had coached Alexander Goodwin;
(b) Alexander Goodwin had never stayed at his house.
(c) They had some “very tame videos” including a zombie movie and videos that could be put on YouTube.
(d) The offender knew Alexander Goodwin to be 12 to 13 years of age at the time.
(e) The relationship with Alexander Goodwin was “really all just about football”.
On 25 September 2020, Constable Eloise Amberger met with Alexander Goodwin and conducted an evidence-in-chief-interview. During that interview, Alexander Goodwin was shown still images taken from the videos located on the black “WD” hard drive. Alexander Goodwin confirmed that he was the boy depicted in those images.
Count 2: Engage in a sexual relationship with a child under special care
The “relationship” period for Count 2 is particularised as having occurred between 1 September 2015 and 31 September 2018. Wesley Mason was aged 12 years to 15 years at the time. The number of occasions and the detail of the sexual activity that occurred between the offender and Wesley Mason was determined by the Court in R v Porter (No 2).
As I indicated in that judgment, I was satisfied beyond reasonable doubt that:
(a) There were 35 occasions of sexual activity: at [262].
(b) That penile-anal penetration occurred on all occasions after the first occasion and this became the “new normal”: at [262].
(c) The victim penetrated the offender’s anus with his penis on three occasions and the other occasions involved the offender penetrating the victim’s anus with his penis: at [263].
(d) On one occasion the offender penetrated the victim’s anus with his penis without a condom and ejaculated into the victim’s anus: at [263].
Count 3: Grooming
The offending of Count 3 is particularised as the offender using his position as a coach to encourage a relationship beyond that of coach/ pupil with Riley Priestley. The offender was sexually interested in Riley Priestly.
Riley Priestley began playing AFL for a football club that the offender was associated with in 2014 when he was playing in the under 8’s team. Riley Priestley’s mother was a team manager at the football club and she knew the offender as someone who volunteered a lot at the club. Riley Priestley’s mother first met the offender in September 2019.
In December 2019, the offender started coaching Riley Priestley in group training sessions for the under 14’s team. The offender was going to be Riley Priestley’s team coach for the 2020 season. After the team’s pre-Christmas training session in December, Riley Priestley’s father introduced himself to the offender.
On 22 January 2020, Riley Priestley’s mother contacted the offender via the application Heja to ask about Riley Priestley’s training loads and inform the offender of his commitments. Riley Priestley’s mother and the offender conversed over the next month or so about Riley Priestley.
Due to COVID-19 restrictions, team training was postponed. However, when restrictions started to ease, team training recommenced on Sunday morning on an oval near the suburbs of MacGregor and Fraser.
On 12 March 2020, the offender sent Riley Priestley’s mother a message offering coaching services:
Hi [Mother’s Name], [Riley] was picking my brains again at the end of our session tonight asking about things he can do to improve. I mentioned a few things. He said that he generally does a lot of this stuff on his own. I’m happy to offer a little time maybe an hour in a weekend to help him with some skills works etc. at the oval if that’s something you and he ever want to take up. I have done it for a dozen other kids over the last 16 seasons, one that I can see really want to improve and actually care about footy. Anyway the offer’s always there. I’m a coach 24/7. It’s in the blood I think now. Cheer, Sports.
Riley Priestley’s mother accepted the offender’s offer and Riley Priestley commenced his first private training session on 24 March 2020 between 5:00PM and 6:00PM in Lyneham. The coaching progressed from training Riley Priestley once per week for one hour, to training twice per week for two or so hours. Training often occurred at the football grounds in Lyneham.
The offender made it clear to Riley Priestley’s parents that they could not tell anyone that he was coaching Riley Priestley as there were restrictions due to COVID-19. Although training started on the main oval, it subsequently moved to a more discreet oval that was not visible from the road.
During training, the offender’s relationship with Riley Priestley became more personal, developing from the professional coach and player relationship. The offender would be very friendly towards Riley Priestley and Riley Priestley considered the offender to be his friend. They would have personal conversations about how different things in life had shaped them. Following one-on-one training, the offender would often send messages to the complainant via Heja.
On one occasion in mid-June 2020, after an all-team training session on Sunday, Riley Priestley attended the offender’s residence with other members of the under 14’s football team. Whilst at the offender’s residence, they played pool in the offender’s downstairs area and played games on an Xbox. The offender had attempted to invite Riley Priestley over on previous occasions, but these invitations were declined by Riley Priestley’s parents.
From 23 March 2020 until 26 April 2020, the offender conversed with Mr Neale via Whatsapp about his training with Riley Priestley. The offender would refer to Riley Priestley in these messages by the first and second letters of his first name. For the purposes of this judgment, the references will follow the pseudonym of “R” or “Ri”.
The message included an image of Riley Priestley in football gear, and references to how the offender considered the training with Riley Priestley to be like the early days of training Wesley Mason and Alexander Goodwin. The offender’s messages to Mr Neale demonstrated that the offender was interested in Riley Priestley and was seeking to utilise his time with Riley to groom him for potential sexual conduct:
Offender: [sends a photo of Riley]
…
Offender: who the hell knows where this one ends up but right now its baby steps.
…
Offender: Yer look who knows but right now it’s a door half open and I’m just enjoying the “moments”. He’s got some serious talent and just loves a chat. Great smile when I can coax it out. Wore a Swans tank top on Tuesday to show off the guns. Lock down will not be welcome mate.
…
Offender: [R] wants [an] hour and half next time around. Just us [two] on a deserted field kicking footy and shooting the breeze chatting away. Starting to get a feel for the funny chatty personality. Oh and a sweet ass butt [smiley emoji]
…
Offender: a Bit like the early days of training with [Wesley] or kicking the footy with [Alexander].
Mr Neale: let’s hope that lighting CAN strike twice.
Offender: Mate I’m just happy enough to kick the footy around and chat with a cute funny boy. [Wesley] was most definitely one in a hundred million.
Offender: Heya mate Well that hasn’t taken me long to fall completely head over heels.
…
Offender: Training was an hour forty five long today. Keeps extending. Lots of time in between drills to sit and catch breath and chat about everything a 12yo has inside his head [smiling emoji with love heart eyes].
…
Offender: Mate I can’t believe that some Chinese dude eating a bat has eventually led to me spending so much time with a special b. Definitely moved beyond that coach/ player thing and our training is just me and [R] chatting away and laughing a lot [smiley emoji]. Hard to believe this wasn’t even on my radar back in January.
…
Offender: It’s good and I’m grateful. But think it’s gong to be the just confined to the two afternoon training sessions each week. I can’t see it turning into the scale of things like with a [Alexander] or [Wesley]….
Offender: So I’m setting myself up by falling so hard for [R].
On 12 November 2020, Riley Priestley’s father spoke with police and identified the image that the offender had sent to Mr Neale as being an image of Riley Priestley that was taken at a triathlon in or around 2018 or 2019. The photo had never been provided by them to the offender.
Count 4: Possess child exploitation material
Count 4 is in respect of the offender possessing child exploitation material. That material consisted of over 1,500 videos and images depicting male children, that is, infant, prepubescent, and postpubescent, engaging in sexual activities with adult males and other male children. The sexual activities depicted include:
(a) Self-masturbation and masturbation by adult males on children;
(b) Oral sexual intercourse (forced and unforced);
(c) Anal sexual intercourse (forced and unforced);
(d) Ejaculation;
(e) Genitalia of male children when getting changed;
(f) Webcam videos and compilation videos of adult males ejaculating on the faces and bodies of male children;
(g) Graphic novels depicting prepubescent male children being kept, sold and used as pets, domestic servants and sex slaves;
(h) Magazines containing images of children.
(i) Male children in swimwear focusing on genital areas; and
(j) Male children of around 10 years of age standing in a bathtub naked and washing themselves.
The material on the various devices included an image of “Pedo Bear”, an icon used within paedophilic communities to mark a file as containing child exploitation material. A white iPhone 8 belonging to the offender contained non-sexual images and videos of infants and male children, including an image of Wesley Mason. The white iPhone included searches for “2020 boy pedophile”, “2020 boy pedophile TV” and “film boy pedophile 2020”.
One of the videos depicts the male child, Jonathan Dalton, who was identified. This video depicts Jonathan Dalton getting changed in his bedroom and shows his genitals. The offender visited the Dalton family in Queensland on two occasions with Mr Neale and used Airbnb to arrange their stays with the Daltons.
On 24 June 2020, police obtained a s 3E Crimes Act 1914 (Cth) search warrant for the offender’s residence. Police attended the offender’s residence on 27 June 2020. During the search, the offender made admissions whilst under caution in relation to a Samsung Galaxy 5 tablet and a green “Verbatim” USB device that police located during the search. The offender confirmed there was “some child pornography”, that he had possessed the USB for about three months, and that he downloaded the material from the internet via a torrent. The offender confirmed the material was “child pornography with…males” and the ages of the children were about 10 to 14. The offender admitted that he had last accessed the thumb drive a couple of weeks prior.
When asked why he was in possession of “child pornography”, the offender stated, “cause it was a stupid thing to do”. Police asked the offender what he thought the parents of the AFL players he coached would think about the possession and the offender stated, “I don’t think they would be pleased”. In respect of what the Ainslie Football Club would think, the offender replied, “Oh, well, I imagine they would say, ‘Prefer you not to coach’”.
The material was possessed by the offender on seven separate devices located in the offender’s residence by police, namely:
(a) A black “8” USB device located in the offender’s bedroom;
(b) A green “Verbatim” USB located in the lower shelf of a TV cabinet;
(c) A black “WD” external hard drive (No 1) located in the offender’s bedroom;
(d) A Samsung Galaxy 5 tablet located in the offender’s living room;
(e) A Toshiba all-in-one computer located in the offender’s bedroom under the bed;
(f) A black “WD” external hard drive (No 2) located in a bedroom in the offender’s residence; and
(g) A micro-SD card located in a silver tin found in a bedroom in the offender’s residence.
Additional Offence
The offender has asked the Court to take into account an additional offence of using a child over the age of 12 years to produce child exploitation material contrary to s 64(3) of the Crimes Act when sentencing the offender for Count 1.
The offending concerns the same victim and relates to the period between 12 September 2011 and 22 November 2011.
Victim Impact Statements
There were seven Victim Impact Statements that were tendered at the sentencing hearing which are set out below along with the Count that the statement relates to:
(a) Victim Impact Statement of Wesley Mason (Count 2);
(b) Victim Impact Statement of mother of Wesley Mason (Count 2);
(c) Victim Impact Statement of father of Wesley Mason (Count 2);
(d) Victim Impact Statement of Riley Priestley (Count 3);
(e) Victim Impact Statement of Jonathan Dalton (referred to as ZA at the sentencing hearing, but allocated the pseudonym of Jonathon Dalton) (Count 4);
(f) Victim Impact Statement of mother of Jonathan Dalton (Count 4);
(g) Victim Impact Statement of Alexander Goodwin (Count 1);
Wesley Mason, his parents, and Alexander Goodwin requested that I read their statements, but that they not be read aloud at the sentencing hearing. I have read those statements. Counsel for the prosecution noted that all four of these particular victims were aware that matters in their statements may be referred to in these reasons.
Counsel for the prosecution read the Victim Impact Statements of Jonathon Dalton and his mother on their request at the sentencing hearing.
Riley Priestley read his statement aloud at the sentencing hearing.
I also received copies of the statements read aloud at the sentencing hearing.
By way of background, after the prosecution tendered the statements, objections were made by counsel for the offender in relation to four of those statements and their receipt at that time was subject to those objections.
The objections that were advanced at the hearing were that parts of four of the Victim Impact Statements did not properly fall within the definition of a Victim Impact Statement and that, accordingly, the Court could not have regard to those parts of the statements.
Specifically, counsel for the offender submitted that part of the statements fell outside the definition of s 47 of the Sentencing Act. Section 47 relevantly states:
victim impact statement, for an offence, means a statement made by or for a victim of the offence that contains details of any harm suffered by the victim because of the offence.
(emphasis added)
I will turn to deal with these objections after addressing one procedural matter.
Counsel for the offender’s initial submission at the hearing was that the statements could not be read or received by the Court until the objections had been dealt with. In particular, counsel submitted that:
Because, if the material is inadmissible, it is inadmissible. It’s no different to receiving inadmissible evidence and then saying to the parties at the Bar table, I’ll work out after the event to what extent I’ll rely upon the inadmissible material. My submission is a threshold submission …
In accordance with the approach adopted in R v Swift [2007] VSCA 52; 15 VR 497 (Swift), in my view, it is open to a Court to permit the Victim Impact Statements to be read at the sentencing hearing and to then determine after the hearing any issues regarding the admissibility of any part of the statements. This is preferable to asking the victims to attend Court on yet another occasion.
The key passages from Swift can be found at [7]-[8] where Nettle JA (as his Honour then was) stated:
Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan and of Vincent JA in DPP v DJK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.
Of course, it remains incumbent on counsel for a prisoner on a plea to take objection to those parts of material known to be before the judge which counsel wishes to have treated as inadmissible against the prisoner. Otherwise, as Murphy J said in R v Halden (in another but related context), if it does not appear that a sentencing judge has necessarily relied upon material to which objection might successfully have been taken, counsel cannot hope to succeed in a submission on appeal that the judge in fact relied upon inadmissible material. Furthermore, if objection is taken on a matter of substance to any part of a victim impact statement which is inadmissible, the judge should either rule it inadmissible or make it clear during the plea or in his sentencing reasons that no reliance would be or was being placed on that part of the statement. But, under the existing practice, there is no reason why a judge should not make full use of relevant material in a victim impact statement, including material which goes beyond the ambit of s 95B, so long as the judge first makes plain to counsel that he or she intends to adopt that course and counsel does not object.
(footnotes omitted, emphasis added)
Counsel for the offender submitted that as [8] makes clear, counsel has a duty to raise any objections regarding admissibility at the sentencing hearing. So much can be accepted.
At the hearing, I read the objected to portions of the statements and considered the question of whether it was necessary for the Court to rule on the objections prior to them being read. For the reasons that follow, in my view, while it may be open to a judge to rule on admissibility of portions of Victim Impact Statements prior to them being read, in this case that was not the most appropriate approach.
First, there is a significant therapeutic benefit in allowing victims to read their statements to the Court. As a general comment, victims may feel excluded by Court processes or may feel that they have not had the opportunity to put their statement of harm before a Court. A Victim Impact Statement is one of the ways that the legislature has allowed for victims to “place before the Court, in their own words, the impact of the crime on them”. This was discussed by McWilliam AJ in R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 (Loeschnauer) where her Honour stated at [41]:
Counsel for the offender provided a list of written objections to parts of the victim impact statements and submissions, while accepting that the approach in R v Swift [2007] VSCA 52 at [4]-[9] (Swift) was appropriate. I respectfully agree with what was stated in Swift at [6] that a victim impact statement is not to be equated to Crown evidence, with statements required to be in admissible form. The purpose of a victim impact statement is two-fold. First, it facilitates the Court taking into account a mandatory consideration pursuant to s 33(1)(f) of the Sentencing Act as to the impact of the offence on the victim, the victim’s family and anyone else eligible to make a victim impact statement under the Sentencing Act (as to which see s 49). Second, it gives the victim or his family the opportunity to place before the Court, in their own words, the impact of the crime on them. It is pertinent to repeat the extract from DPP v DJK [2003] VSCA 109 at [17], which was cited in Swift at [6] as follows:
The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.
That is not to say that a judge can have regard to inadmissible or objectionable material but rather that this secondary purpose of Victim Impact Statements, being victims placing before the Court in their own words the impact of the offending, should be recognised in determining the procedural issue in relation to how objections should be addressed.
I mirror the comments of Nettle JA in Swift and McWilliam AJ in Loeschnauer that the purpose of Victim Impact Statements may be destroyed or lost if their receipt were confined by all of the procedural rules that govern evidence. In particular, were statements required to be perused thoroughly by lawyers in advance of them being read, victims may once again feel excluded by court processes and feel as if their experience had somehow been sanitised by legal jargon or technicality.
Additionally, I note the prosecution approach taken in this case in regard to material that was clearly inappropriate which had been removed by the prosecution in advance of the hearing: s 51(7) Sentencing Act.
Section 51, of course, sets out the form and contents of a Victim Impact Statement. The section provides:
51 Victim impact statements—form and contents
(1) A victim impact statement for the offence must identify the victim to whom it relates.
(2) The statement must include the full name of the person who makes the statement.
(3) If the person who makes the statement is not the victim (or the victim’s representative)—
(a) the statement must indicate that the victim does not object to the statement being made to the court; and
(b) if practicable, the victim (or representative) must sign the statement, or make a separate written or oral statement to the court, to verify that the victim does not object.
(4) If the victim to whom the statement relates is not a primary victim, the statement must identify the primary victim and state the nature and length of the victim’s relationship with the primary victim.
(5) If the statement is made by a person who is not the victim, the statement must indicate the nature and length of the person’s relationship with the victim.
(6) The statement may contain photographs, drawings or other images.
(7) The statement must not contain anything that is offensive, threatening, intimidating or harassing.
(8) This section does not prevent a victim impact statement being made by or for more than 1 victim.
Second, were the extensive objections that were advanced by the offender’s counsel argued and ruled upon it was obvious to the Court that the hearing would not have concluded in the allocated time and the victims would not have been able to read (or have their Victim Impact Statements read on their behalf) on the day set down for hearing.
In my view, the preferable course was for the Court to receive careful submissions on admissibility after receipt of the statements. That approach accords with the approach taken in Swift. Indeed, this course has previously been followed by judges of this Court including in Loeschnauer and R v Garay (No 4) [2022] ACTSC 138 (Garay (No 4)).
In accordance with that approach, I granted the parties leave to provide written submissions directed to the objections. Leave was also granted for the submissions to address a number of other issues raised at the sentencing hearing.
In supplementary written submissions, counsel for the offender submitted that only documents that satisfy the definition of a “Victim Impact Statement” contained in s 47 of the Sentencing Act could be received by the Court pursuant to s 53(1)(a). So much is uncontroversial.
Section 53 provides:
53 Victim impact statements—effect
(1) In deciding how the offender should be sentenced (if at all) for the offence, the court—
(a) must consider any victim impact statement given to the court in relation to the offence
…
Counsel for the offender further submitted that a statement which “contained details of any harm suffered” must, of necessity, relate to past harm and not “likely, anticipated or speculated future harm”. Any such evidence, the offender submitted, should be provided to the Court in a more usual form and be subject to the usual rules of evidence.
Counsel for the offender noted that a different statutory regime applies in Victoria and that this Court should distinguish Swift on that basis. In particular, counsel submitted that in Victoria, particulars of injury, loss or damage must be submitted in a statutory declaration or similar: s 8K of the Sentencing Act 1991 (Vic).
The specific objections advanced by the offender as outlined in the supplementary written submissions can be summarised as follows:
(a) Victim Impact Statement of Wesley Mason: First highlighted passage is speculative as to future harm and the statement does not outline whether they are related to the abuse Wesley suffered. Following highlighted passages are a lay account concerning the efficacy of particular treatment and refers to unidentified expert views on that treatment. Final highlighted passage is an “untestable” expert opinion concerning a diagnosis of PTSD and dyslexia not supported by separate expert evidence. I will deal with these objections below.
(b) Victim Impacts Statement of mother of Jonathon Dalton (who had an interim pseudonym of ZA at the sentencing hearing): First highlighted passage not pressed. Objection pressed in relation to sentence “there are just [a lot] of hurt children and families who suffered horrific trauma at the hands of your choices and actions” on the basis that the words are intimidating and harassing. I do not accept that these words are intimidating and harassing. I unequivocally reject this objection by counsel for the offender.
(c) Victim Impact Statement of the father of Wesley Mason: First highlighted passage relates to an unidentified doctor’s opinion. Second highlighted passage objected to on basis it is speculatory about the future Wesley may have had but for the abuse. Third passage objected to as it contains an “offensive summary of the offender’s present custodial arrangements compared to the asserted circumstances of the author’s son”. Fourth highlighted passage objected to as material is offensive, intimidating and harassing and, in particular, urges the Court to impose a particular sentence. I will deal with these objections below.
(d) Victim Impact Statement of the mother of Wesley Mason: First highlighted passage objected to on basis that it links Wesley’s dyslexia with the offending conduct. Second passage objected to as it is an assertion of the consequences of the offending in the absence of medical evidence. An additional sentence that was not highlighted or objected to at the hearing was objected to on the basis that it outlines the mother’s view that no sentence “will ever be long enough”. I will deal with these objections below.
At the outset, in relation to the aspects of the statements claimed to be offensive, intimidating, harassing or similar as stated above, I do not accept the offender’s submissions. In my view, the statements are not offensive, intimidating or harassing. This objection is without substance as discussed above at [77](b).
The prosecution correctly submitted that the offender’s submission that the approach outlined in Swift “is of limited practical assistance” is contrary to previous findings of this Court in Loeschnauer and that this Court should follow the approach at [6], [8] in Swift. The prosecution further submitted that it was a question of weight to be given to the highlighted statements and that the Court should not approach each statement to determine which aspects are or are not admissible in accordance with the strict rules of evidence.
Relevantly, in Swift, Nettle JA stated at [6]:
The appellant’s argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim’s concerns.[1] Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material …
(emphasis added)
I agree with those observations. The Court should not take a technical approach to the admissibility of Victim Impact Statements. Rather, in my view, the Court should be cognisant of objections advanced by counsel and consider whether any reliance can be placed on the objected to portions and, if so, what weight should be applied to those portions. While accepting counsel for the offender’s submission that Victoria has a different statutory regime and that statements regarding harm must be sworn or affirmed, that does not mean that this Court should not follow the sensible approach outlined at [6] in Swift. Indeed, the fact that the ACT Legislature has not chosen to require statements of harm to be affirmed in the same manner as required in Victoria is a matter that speaks against importing a requirement that statements be in a strictly admissible legal form.
It follows that I accept the prosecution submission that it is largely a question of weight to be given to the various statements. I note that, as I indicate below, there are some portions of the statements to which I cannot afford any weight and must place no reliance on: see Swift. However, in my view, significant latitude ought to be provided to victims in relation to how they express themselves concerning the harm that they have suffered. The victims of the crimes are the individuals best placed to describe the impact of the offending on them. The Court should not approach the matter from a technical perspective. Such an approach would defeat the secondary purpose of Victim Impact Statements, namely, for victims to “place before the Court, in their own words, the impact of the crime on [them]”: Swift at [6].
A broad interpretation of s 47 is one that best aligns with the legislative purpose in implementing a regime by which victims can make statements to the Court.
I now deal with the offender’s objection regarding the part of the statement of the father of Wesley Mason outlining the future that he believes his son might have had but for the offending. In my view, a father describing what he thinks the future would have looked like for his son had the offending not occurred is an accepted way for a victim to express how the offending has caused harm in the present. In my view, that statement falls within the broad definition of harm contained in s 47 of the Sentencing Act.
In relation to weight, I make the following points concerning the view I have taken with respect to the challenged aspects of the Victim Impact Statements. Regarding the portions of the Victim Impact Statements that urge a particular length of sentence be imposed and discussing the offender’s custodial conditions, those comments or statements are aspects to which the Court cannot afford any weight as a matter of law. The calculation of and the various purposes of sentencing has its own demands: see Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen v The Queen (No 2)).
In relation to the aspects of the statements that deal with medical diagnoses, these are appropriate matters to be included in a Victim Impact Statement as they provide the victims’ understanding of how various conditions that they (or their family members) suffer from relate to the offending. These statements must, however, be given less weight than had a medical report outlining the bases for those diagnoses been provided. A similar position must be adopted concerning the parts of the statements concerning dyslexia. Weight must therefore be circumscribed in this regard.
In relation to the aspects of the statements that relate to future harm, or speculate as to what may have occurred had the offending not occurred, I do not accept that statements of that type do not fall within the definition of a Victim Impact Statement. They are statements from the victims as to how they express the harm that has been caused by the offending. Speculation as such, however, cannot be afforded any significant weight. Nevertheless, how a victim feels in the present about the future is relevant and it falls within the definition of present harm.
I underline, in particular, that the definition of harm contained in s 47 is an inclusive definition and that it includes “mental injury or emotional suffering (including grief)”. The legislature has not limited the matters a victim may refer to and, in my view, how a victim wishes to express the harm they have suffered is a matter for that victim. It must be a matter for each individual victim to express themselves in a manner consistent with the legislative requirements.
In any event, the courts have long recognised that sexual abuse of children gives rise to psychological damage: SW v R [2013] NSWCCA 103 at [52]. This psychological damage is perforce recognised by the courts whether or not Victim Impact Statements are produced to the Court.
Not only do the courts recognise the impacts of sexual offending against children; the impacts are also well researched and recognised in Australian society by the Royal Commission into Institutional Responses to Child Sexual Abuse.
Having regard to the matters contained in the seven Victim Impact Statements it is apparent that the offender’s conduct has had a significant and lasting impact on his victims. This is the case not only for the primary victims, but also for the members of their families and those close to them. This is a human tragedy. There is inevitably a deep well of harm and human suffering in this case.
The offender’s conduct has led to his victims struggling variously with mental health concerns, struggling with feelings of shame and self-hatred, impacted their relationships with loved ones and families, impacted their schooling and impacted their feelings about the future. As one of the victims noted, the offender has “changed the way that [he] look[s] at people in a horrible way”. Many of the victims struggle as a result of the offending conduct.
While it is difficult for a judgment to fully capture these expressions of harm, the Court thanks the victims who provided statements, whether they read the Victim Impact Statements themselves, asked for them to be read, or requested that I read them in private. The Court also acknowledges the victims who chose not to supply a Victim Impact Statement to the Court.
The Court acknowledges the importance of what was said in the Victim Impact Statements and acknowledges the statements of harm. As I stated at the sentencing hearing, the Court notes that some of the victims have expressed shame and that the offending was in some way their fault. It is important that the Court makes clear that the fault lies with the offender. It is also important that the Court makes clear to the victims that the shame belongs to the offender and does not belong to any victim.
Objective Seriousness
Prosecution Submissions
The prosecution correctly submitted that Count 2 is the most serious offence. It is appropriate that I address the submissions in relation to that offending conduct first.
In relation to Count 2, the prosecution submitted that the following factors were relevant in the assessment of objective seriousness:
(a) The duration of the relationship which had taken place over almost three years, when the victim was between 12 and 15 years old.
(b) The nature of the interaction, including whether there was grooming, penetration of any type or ejaculation. In relation to this matter, the prosecution submitted that while there was no sexual interaction for the first 12 months or so of their association, there were numerous instances of the offender engaging in grooming conduct, including through the offender’s efforts to befriend the victim’s family members. The prosecution submitted that there were 35 occasions of sexual activity and 34 instances of penile-anal penetration without a condom. The offender also ejaculated into the victim’s anus on one occasion.
(c) The frequency of the contact. The prosecution submitted that the offender was a regular fixture in the victim’s life.
(d) The location of the offending. The prosecution submitted that the seriousness of the offending was aggravated by the fact that it took place in the victim’s family home.
(e) The circumstances in which the relationship came to an end. The prosecution submitted that the plea of guilty to count 3 is significant in that it demonstrates a shift of the offender’s attention to a younger child.
(f) The age of the victim and offender. The prosecution submitted that there was a significant age and power disparity between the offender (45 at the time of the first instance of sexual activity) and the victim (12).
(g) Risk of sexually transmitted disease. The prosecution submitted that the instances of unprotected anal sex carried a risk of the victim contracting a sexually transmitted disease.
(h) Power dynamic. The prosecution submitted that the offender held a position of authority over the victim as his football coach.
(i) Threats of violence, emotional manipulation, persuasion, drug involvement. While there were no threats of violence, the prosecution submitted that the offender’s discussions with the victim relating to other individuals he had coached demonstrates the offender’s manipulation. The prosecution also submitted that the offender’s use of a noxious substance, namely, leather cleaner on one occasion was also relevant to seriousness.
In further written submissions supplied after the sentencing hearing the prosecution outlined the basis on which the relevant factors were derived. In particular, the prosecution submitted that those factors had previously been used by this Court to assess objective seriousness of offences of this kind: R v Degioannis [2019] ACTSC 47 (R v Degioannis) at [10]-[11], quoting with approval R v SAG [2004] QCA 286; 147 A Crim R 301 see also The Queen v Ware (a pseudonym) [2022] ACTCA 14 at [50] (Ware).
I generally accept that the factors outlined above are relevant to objective seriousness. I note, however, in relation to (e) the evidence of the victim indicating that the offending ceased when he rebuffed the offender: Porter (No 2) at [32].
The prosecution also referred to the case of DPP v DDJ [2009] VSCA 115; 22 VR 444 where the Court stated at [32]:
… it is the persistence of the sexual relationship over time which is at the heart of the offence. The repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened. On the other hand, it would be quite wrong to conclude that the offender’s culpability varies in direct proportion to the length of the relationship …
In my view, those observations are relevant in this case.
Overall, the prosecution correctly submitted that taking these factors as a whole and when assessed against the number of instances of anal penetration by either the offender’s penis or with sex toys, the offending fell “below the worst category of offending … but not far below”.
The prosecution submitted that that approach accords with comparative cases. I will consider those comparative cases in more detail later in these reasons. In summary, the prosecution submitted that the facts are more serious than those relating to the victim Lillian (a pseudonym) in R v Kellan (a pseudonym) [2021] ACTSC 314 (Kellan) and are very close to those in R v Ashton (a pseudonym) [2022] ACTSC 27 (Ashton).
I note that in Ashton, Norrish AJ described the offending conduct as just below the worst category of offending of its type.
In relation to Count 1, the prosecution submitted that the following matters were relevant to the objective seriousness:
(a) Only 7 of the 316 videos recorded by the offender were done with consent and that many of the videos were recorded covertly using a hidden camera.
(b) The offender allowed the victim to drink alcohol in one of the videos, aggravating the seriousness.
(c) The images were captured for the offender’s sexual gratification noting that in one of the videos the offender can be seen sitting with the victim with an erection.
(d) The offending represents a breach of trust.
The prosecution correctly noted in the further written submissions that the material was not produced for the purpose of sale or distribution and that the offender did not profit from the offence.
In further written submissions, the prosecution submitted that the fact the offender possessed the recordings and images for approximately 10 years before they were discovered is “a significant aggravating factor”.
The factors were drawn from the case of R v Degioannis at [14].
Ultimately, the prosecution submitted that the offending fell in the mid-range of objective seriousness given the number of images and videos, the use of an actual child in the creation of the material and the images and videos including depictions of the victim’s genital area and anus.
In relation to Count 3, the prosecution submitted that the following matters were relevant to the objective seriousness:
(a) That the victim became the target of the offender after the victim for Count 2.
(b) The pattern of behaviour reflects the same approach with regard to the victim of Count 2.
(c) The ultimate aim of the grooming was to engage in similar behaviour as in Count 2 had the victim’s parents not been reluctant to permit the victim to stay overnight at the offender’s house.
In further written submissions, the prosecution submitted that the following matters were also relevant to objective seriousness:
(a) The age of the victim (14).
(b) The disparity in ages between the victim and the offender.
(c) The two-month period of offending.
(d) The nature of the offending conduct, being the development of the relationship from a football coach to a friend, including the offender inviting the victim into his home.
(e) Where the offending took place – at football grounds and the offender’s home.
(f) The fact that the offending involved a breach of trust through the manner the offender used his position to gain access to the victim.
(g) The fact that the offending ceased due to the reluctance of the victim’s parents to permit the victim to stay at his house.
Overall, the prosecution submitted that the offending was above the mid-range of objective seriousness primarily due to the aim. The prosecution also noted that the impact on victims was a relevant consideration: s 33(1) Sentencing Act.
In relation to Count 4, the prosecution submitted that the offending fell above the mid-range of objective seriousness given the number of files, the involvement of actual children and the significant number of children depicted and victimised.
Defence Submissions
In relation to objective seriousness, counsel for the offender’s submissions focused on comparable cases without specifically addressing objective seriousness. It is therefore necessary to address the matter of comparable cases before outlining my consideration of the objective seriousness.
Comparable Cases
I will discuss comparable cases for each of the counts further, later in these reasons.
As noted above, the primary cases submitted by the prosecution to be similar to the offending in relation to objective seriousness were Ashton and Kellan.
(a)Ashton concerned an offender sentenced for engaging in a sexual relationship with a child with whom the offender had a special relationship. The relationship was particularised as commencing on 1 January 2013 and concluding on 12 February 2021. The offender was the victim’s father, and the victim was aged between 6 and 14 for the period of offending. The sexual acts took place a minimum of one to two times per month for the duration of the offending period and encompassed penile-vaginal penetration, penile-anal penetration, digital penetration and fellatio. The offender had pleaded guilty at the earliest opportunity and was afforded a 25% discount for the plea. The offender had the child with his former partner and had a shared custody arrangement where his daughter came to stay with him approximately twice a month. It was on those occasions that the offending conduct occurred. There was no suggestion that the offender had a mental health condition and there was evidence that the offender had some alcohol issues. The sentencing judge noted that the very young age of the victim, the fact penile-anal penetration began when she was eight years old, the very large number of sexual acts and the special character of the relationship meant that this was a very serious case. The seriousness was assessed at just below the worst category of offending and the offender sentenced. The offender was sentenced to 12 years imprisonment (reduced from 16 on account of the plea of guilty) with a 7 year and 6 month non-parole period. That sentence is presently subject to a prosecution appeal.
(b)In Kellan, the offender was sentenced for four offences – three counts of engaging in a sexual relationship with a child under his special care and one count of committing an act of indecency. The offending related to three of the offender’s biological children and his stepchild. The offending related to different periods of time with respect to different victims, ranging from one year to five years in duration between 2010 and 2021. The offending conduct involved acts of indecency, digital penetration and cunnilingus. The sentencing judge found that the offending was mid-range with respect to each of the victims. The maximum penalty for each of the sexual relationship offences was 25 years, however a cap of seven years applied in relation to one of the counts. The offender was sentenced to an overall head sentence of 13 years and 3 months with a non-parole period of 8 years and 6 months, reflecting approximately a 64% non-parole period.
Counsel for the offender submitted that the objective seriousness of this case could not be viewed as greater than the offending against Lillian (a pseudonym) in Kellan because of the significantly different breach of trust involved. The offender also submitted that there was no issue regarding mental condition in Kellan.
In relation to Ashton, counsel for the offender submitted that there were several distinguishing features that make the offending conduct here somewhat lower than in that case.
(a) First, counsel submitted that in Ashton the offending was between a father and his child, a special relationship of trust.
(b) Second, the offending in Ashton involved a greater number of instances of sexual abuse.
(c) Third, in Ashton the offender had been confronted about his behaviour but continued to sexually abuse his daughter for a further three years.
(d) Fourth, there were no mental health conditions in Ashton (although it was noted that the offender in that case had some issues with alcohol and cannabis).
(e) Fifth, there were observations made by the sentencing judge that the offender’s contrition and insight were not significant, despite the pleas of guilty and assistance in the administration of justice.
(f) Finally, the sentencing judge had noted that the offender had made statements that suggested a warped understanding of his offending conduct.
I will outline the cases submitted to be comparable in terms of sentence by counsel for the offender and the other cases referred to by the prosecution later in these reasons.
Consideration
I note that some of the matters outlined by the defence above speak to comparing the sentences imposed in the cases referred to by the prosecution and the case before me, rather than an assessment of objective seriousness alone. I will turn to consider comparable cases in more detail later in my reasons at [254]-[269].
In relation to objective seriousness, I note that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. Rather, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24].
It is, accordingly, not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality. What is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
Given the way that counsel for the offender structured his submissions in this case it is necessary to analyse the matter in part by way of reference to categories. This is because the offender has not advanced a list of matters relevant to objective seriousness in his written submissions. Rather, counsel distinguished cases referred to by the prosecution. Counsel for the prosecution has referred to both identifying features and categories.
In relation to Counts 1, 3 and 4, I accept the “identifying features” matters outlined by counsel for the prosecution as relevant to the objective seriousness. In relation to their categorisation, I accept the submission that count 1 is in the mid-range. In relation to counts 3 and 4 in my view these are above the mid-range.
In relation to Count 2, I find that the offending was very serious and certainly in the upper range. The offending in this case was sustained, involved a significant breach of trust and involved a very significant number of instances of sexual abuse, including anal penetration without use of a condom. I note the distinguishing matters raised by counsel for the offender concerning Ashton and the prosecution submissions concerning Ashton discussed above.
I do not accept the offender’s submission that the offending was not as serious as that against Lillian (a pseudonym) in Kellan. While the offender in this case was not the father of the victim, he was a trusted coach and friend and occupied a position of trust. Taking into account the matters discussed above, the objective seriousness of Count 2 is clearly in the upper range of offending of this type.
The approach adopted in this case by the offender, and to an extent the prosecution, concerning objective seriousness to strictly compare the offending in Count 2 with another case being primarily Ashton is not the correct approach. It is relevant therefore to repeat what was stated by Mossop J in Murray v IA [2020] ACTSC 288 at [28]:
In relation to sentencing decisions, the relevance of past sentences to discretionary sentencing decisions is a matter of legislative prescription. The Crimes (Sentencing) Act provides that, in deciding how an offender should be sentenced for an offence, a court must consider “current sentencing practice”: s 33(1)(za). Considering past sentences is also relevant to the achievement of reasonable consistency in sentencing: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [6]. However, sentencing involves a discretionary judgment and the mix of factors that must be weighed in determining an appropriate sentence will never be precisely the same from one case to another: R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [46]. Consistency does not mean numerical equivalence but, rather, the consistent application of relevant legal principles: Wong at [6], [65]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [49]; Pham at [28].
Subjective Circumstances
In evidence before me is a pre-sentence report (PSR), as well as a Defence Bundle which contains a psychological assessment report of Mr Patrick Newton and a treatment report of Mr Geoffrey Burrows.
Pre-Sentence Report
The PSR was prepared for the sentencing hearing on 27 April 2022. The report notes that the offender has been known to ACT Corrective Services since he was initially remanded in custody in June 2020 for these offences. The report notes that the offender was subject to supervised bail until December 2021 when he requested that bail be revoked.
The PSR notes that the offender complied with his bail conditions and was not subject to breach action.
The PSR outlines the offender’s background, and includes information about his upbringing. This includes that the offender had been bullied in school and that between the ages of 11 and 14 the offender was subjected to sexual abuse during Scouts camping events.
The abuse was perpetrated by an adult Scout member and a father of one of the other participants. The PSR records that the offender indicated that:
… these behaviours occurred in the showers and at times after the lights went out in the sleeping area. [The offender] indicated that this was not ‘forced’ sexual activity although it was ‘unpleasant’. [The offender] disclosed that at the time he thought the behaviour was normal although on reflection wondered if this impacted his ‘sexual preference’.
The PSR also outlines some of the offender’s family background, including that he was required by his family to conceal from non-family members that a close family member had been sexually assaulted at a party, had become pregnant and that the baby had been adopted out of the family. The offender found it difficult to maintain this secret from members of his school.
The PSR notes that the offender has maintained positive relationships with his family members, and that one of his family members currently resides in the offender’s home while he is in custody.
The offender completed high school and started a university course, before leaving to pursue full-time work as a computer programmer.
The report notes that after his arrest, the offender was suspended without pay from his job at the ACT Government and that he had subsequently resigned from that employment.
The PSR noted that the offender had a large group of friends prior to his arrest, but that some of these friends had disassociated from him following his arrest. The offender’s bail conditions restricted him from contacting one of his friends who had similar illegal sexual interests.
The PSR noted that the offender had suffered from undiagnosed and untreated depression arising from his “horrifying realisation” that his sexual preference was different to that of his peers. The PSR noted that following his arrest the offender sought sex offence treatment which was delivered remotely.
Central Melbourne Psychology confirmed that the offender had completed 19 hours of the Sex Offender Treatment Program while he was in the community and there were plans to resume this while he is in custody.
The PSR noted that Canberra Health Services had not provided a formal diagnosis of the offender and advised that there was no evidence of “major mental illness”.
In relation to his offending, the PSR noted that the offender accepts the Statement of Facts for all charges other than Count 2. The report noted that the offender claimed that the “sexual behaviours did not occur as many times as was alleged and … some of the ‘specifics’ were not correct”. The offender noted that he regretted contesting the facts, as it did not change the outcome and resulted in the victim having to give evidence.
The offender claimed that up until a few years ago he had not acted on his sexual preference, which he stated was for boys aged between 12 and 14 years. The PSR indicated that the offender showed significant remorse for his offending and that he had demonstrated victim empathy.
The report indicated that the offender had opted to cancel his bail as he recognised that he was guilty and needed to start being punished. The PSR noted that the offender reflected on the negative impact of his offending on his family members.
The PSR concluded that the offender possessed a low to medium risk of re-offending utilising a standardised risks/needs assessment and an average risk of sexual re-offending using a STATIC-99 assessment tool.
Psychological Assessment Report of Mr Patrick Newton
Also in evidence before me are two reports tendered by counsel for the offender. The first is a Psychological Assessment Report of Mr Newton dated 9 April 2022 (the Newton Report). Mr Newton is a registered psychologist. Mr Newton also gave oral evidence at the sentencing hearing and was cross-examined.
Mr Newton’s qualifications and experience were not challenged by the prosecution. In his report Mr Newton addresses, amongst other matters, the offender’s mental health condition and his assessment results. In particular, Mr Newton indicated that the offender presented in a state of marked depression and that he was currently experiencing significant emotional distress which impacted the offender’s functioning.
The report notes that the offender has withdrawn from his support networks, and that the offender was in a state of hopelessness. The report notes that the offender’s depressive symptoms have arisen primarily from the charges.
Mr Newton concludes that the offender’s symptoms are the result of a major depressive episode using the DSM-5 criteria and that the offender’s condition persists at a moderate level of intensity compared to other patients.
The report notes that the offender is of at least above-average intelligence.
In his report, Mr Newton also assessed the offender’s sexual adjustment. Mr Newton indicated that there are “several aspects of [the offender’s] sexuality” that raised a particular concern. In particular, the offender has been “prone to attribute a precocious sexual readiness to underage boys” and that he “views young people as being more advanced in their sexual development”.
The report notes that the offender’s progress in relation to his sexual preferences remains incomplete. The report continues however to note that “comprehensively addressing such matters is typically something that requires an extended period of therapy” and that this was especially the case for those like the offender who have longstanding issues and who need to address their own mental-health problems.
In his report, Mr Newton indicated that the offender met the DSM-5 criteria for “paedophilic disorder, exclusive type, sexually attracted to boys”.
In the report, Mr Newton conducted a STATIC-99R assessment and a Risk for Sexual Violence Protocol (RSVP) factor assessment report. Mr Newton indicated that the offender presented at a moderate-high risk of engaging in further sexual offending and that his offending is above average compared to that of a typical sexual offender.
In the report, Mr Newton indicated that the offender would benefit from further counselling and that he was developing insight into his offending which (along with the offender’s remorse) was further developing with counselling.
Mr Newton remained of the view that the offender’s prospects of rehabilitation were positive.
In the report, Mr Newton also noted that the offender’s mental health condition had deteriorated since he had been placed into custody and that, given his depression, the offender will require some time before he adjusts to the custodial environment. Mr Newton indicated that the offender will require a mix of support and clinical assistance as well as monitoring. Mr Newton noted that access to counselling support is limited in the custodial environment.
Treatment Report of Mr Geoffrey Burrows
A Treatment Report dated 13 April 2022 was also tendered as part of the Defence Tender Bundle. That report accompanies the report of Mr Newton.
The Treatment Report was authored by Mr Geoffrey Burrows, a provisional psychologist, and was approved by Dr Matthew Barth, a psychologist.
The Report outlines the offender’s engagement with the Sex Offender Treatment Program which he commenced on 12 July 2021. Some sessions had been conducted while the offender was in custody.
The Report outlines some of the techniques that the Program helps offenders to develop, including fantasy management techniques and relapse prevention planning.
The Report concludes that the offender has made relatively slow progress in the program which “underpins the severity of [the offender’s] psychosocial problems”. The Report does however credit the offender for his continued persistence with the program and notes that the offender has expressed a desire to continue treatment.
The Report notes that the author is willing to continue treatment.
Oral Evidence of Mr Patrick Newton
In his oral evidence, Mr Newton confirmed the contents of his report. Mr Newton indicated that he had treated upwards of 3,000 patients for sexual disorders and that the offender had an unusual presentation in that he was of above average intelligence and was a reflective man who sought to understand his offending. Mr Newton noted that fewer than one in twenty of his patients presented with those characteristics (T34.27-28).
Mr Newton also outlined why the offender’s rehabilitation had been slow, noting that there were several contributing factors. This included the ongoing legal matters, the resulting stress, the offender’s withdrawal from friendship groups and his depression.
Mr Newton was taken to the PSR and, in particular, the assessment by Canberra Health Services that the offender did not have a serious mental health condition. Mr Newton noted that he did not agree with that assessment and that, rather, the offender “was suffering from significant depressive symptoms” and that it was not merely reactive depression.
In his oral evidence, Mr Newton outlined how, in his view, the offender’s offending had started with access to child exploitation material and then progressed to the sexual offences against the victims. Mr Newton indicated that accessing the material had been driven by the offender’s paedophilic disorder.
Mr Newton reiterated his view that there was a need for ongoing supervision and oversight of the offender. In particular, Mr Newton outlined that he thought there would be some benefit of a group sex offender program (assuming that some initial challenges could be resolved, namely, how the offender could be integrated into a group due to his differences with many sexual offenders) and that the offender would benefit from continued individual treatment.
Mr Newton noted that his organisation would be able to continue treating the offender and that ACT Corrections had indicated a willingness to facilitate and organise that treatment.
In cross-examination Mr Newton indicated that one of the reasons for the offender’s slow progress was the severity of his psychosexual condition and confirmed his assessment of the offender’s risk of re-offending as contained in his report, being moderate-high risk of engaging in further sexual offending.
Mr Newton was also questioned as to whether the offender’s disorder would be lifelong to which he indicated that that was likely.
In relation to the question regarding whether individuals with a paedophilic disorder can resist urges to engage in offending Mr Newton indicated the following (at T43.6-12):
… the spectrum is quite broad. In Mr Porter's case I think there are reasons to be more optimistic rather than more pessimistic, but it is fair to say that that is an ongoing issue that he needs to address and that is why I have suggested, firstly, significant supervision, significant limitations on his ability to be in unsupervised contact with underage individuals, and also multimodal treatment in an ongoing fashion.
In relation to Count 3 counsel for the prosecution noted that the offence has not been the subject of sentencing by this Court. The prosecution submitted that the case of R v Keith Shepheard [2008] ACTSC 116; 189 A Crim R 165 (Shepheard) which concerned a commonwealth offence of using a carriage service to procure a child may provide useful guidance.
In that case, the sentencing judge noted that the purpose of grooming offences was to “provide protection for children from … [solicitation]”. The maximum penalty for the commonwealth offence was 12 years. In that case the offender had communicated with a child via a messaging service and they had sent each other pornographic material. After that material (and other messages that the child victim had sent and received from other individuals) was discovered by the victim’s mother the matter was reported to the police after which a police officer began to communicate with the offender pretending to be the same person. The offender and the officer then exchanged a lengthy series of messages including their respective ages (albeit the offender provided a much younger age), that the offender viewed the victim as his boyfriend, pornographic material and the offender texting about making arrangements to visit the victim or for the victim to visit him. The offender pleaded guilty and the sentencing judge noted that there was a real victim of the offence but not one at the time the offence was actually committed. The offender was sentenced to two years and nine months imprisonment backdated to account for the period of time he spent in custody with the offender to be released on recognizance after 9 months.
The prosecution also provided me with some comparable cases from NSW, while those cases are helpful in establishing principles that can be applied the maximum penalty in NSW is, depending on the specific charge, approximately double that in the ACT. Nevertheless, they are set out below:
(a) In R v Singh [2021] NSWDC 220 the offender was sentenced for one count of grooming by exposing child to indecent material and one count of use of carriage service to access child abuse material. The offender was 31 at the time of offender and used a dating-site to groom a 12 year old victim. The messaging led to the victim sending him naked photos of herself and the offender sent her a photo of an erect penis. The offender and victim also engaged in sexually explicit messages. The offending stopped when the victim’s mother found the communications. The offender was sentenced for 2 years on count 1 and 3 years and 9 months on count 2.
(b) R v Kenny [2021] NSWDC 17. Offender was charged with numerous offences, including two sequences of grooming offences. The offender was 49 and spoke with a 13 year old victim via an anonymous app. The offender sente the victim photos of his penis and videos of him masturbating. The victim sent him photos of her naked body. The offender and victim were aware of their respective ages. The offender was sentenced to 4 years imprisonment for the first sequence with a 2 and a half year non-parole period and 5 years for sequence 11 with a 3 year non-parole period.
(c) R v Givney [2020] NSWDC 353. The offender was sentenced to one count of grooming, one count of indecent assault of person under 16 and one count of sexual intercourse with person between 14 and 16. The offender was 29 years old and had previous sexual offending. The offender met the victim through her mother and starting messaging her via Snapchat. The offender sent sexually explicit messages and links to pornographic sites. The indicative sentence for the grooming offence was three years and two months with a non-parole period of one year and 11 months.
(d) R v JM [2020] NSWDC 140 the offender was sentenced for one count of grooming by exposing child under 14 to indecent material. The offence carried a 12 year maximum penalty. The offender was also charged with various other sexual offences. The indicative sentence for the grooming offence was two years with 16 month non-parole period.
(e) R v Warren Drake [2014] NSWDC 252. The offender was charged with numerous sexual offences including one count of grooming. The offender had communicated with the victim via Facebook and text message before meeting in person where he digitally penetrated the victim’s vagina. The indicative sentence for the grooming offence was two months.
In relation to count 4, the prosecution provided comparable cases for both the territory offence and commonwealth child exploitation material offences. The prosecution correctly noted that the 15 year maximum penalty for the commonwealth offence makes comparison as against the territory offence (with a 7 year maximum penalty) “problematic. The cases referred to me by the prosecution included:
(a) R v Sutton [2017] ACTSC 95, the offender was sentenced for one count of use of carriage service to access child abuse material and one count of possess child exploitation material. Offender was 37 years old at time of sentence and had pleaded guilty. The offender had previous child exploitation material offence convictions. The offender possessed 4379 images and 84 videos of material. The bulk of the material was in category 1. Most of the videos were in category 4 and the children were all under 10. The offender was sentenced to 24 months on count 1 suspended after 18 months and 18 months on count 2 with a good behaviour order for 3 years.
(b) R v Simonetti [2018] ACTSC 31. The offender was sentenced for four commonwealth offences and one count of possess child exploitation material. The offender was 18 and 19 years old at time of offending and suffered from depression and anxiety. The commonwealth offences related to the offending sending and exchanging child exploitation material for revenge porn purposes. The possession offence related to approximately 700 images depicting around 154 children. Most images were in the lowest category, however, 25 images were in category 5. The offender received a 15% discount for pleas of guilty. The offender was sentenced to 12 months imprisonment for the possession offence, suspended after 3 months.
The prosecution submitted that R v Sutton was perhaps the most comparable in terms of the quantity of material possessed and noted that the number of images in Simonetti was lower. Of the further cases provided, the prosecution correctly noted that they concerned far fewer images and videos than the present case.
Additional Offence
The offender has requested that, under Part 4.4 of the Sentencing Act, the offence referred to above at [2] be taken into account for the purposes of sentencing in relation to Count 1, namely, the offence of using a child under the age of 12 to produce child exploitation material.
A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]-[50] (Campbell), including:
(a)The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal: at [43], Sentencing Act s 57(1).
(b)Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account: at [46], Sentencing Act s 57(1).
(c)In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution, and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation: at [47], [50].
(d)It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has, and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so: at [49]-[50].
(e)“Taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed: at [50].
(f)The offender is not to be sentenced for the additional sentences: at [50].
In determining the appropriate sentence I have had regard to the additional offence. I also have regard to the principles outlined in Campbell as to how the offence is to be taken into account.
Extra-Curial Punishment
Counsel for the offender submitted that significant public attention has been directed at the offender since he was charged and through to the sentencing hearing.
Counsel for the offender submitted that this was evidence of extra-curial punishment and that, in particular, almost all articles have included the name and photograph of the offender such that he has been readily identifiable in the community on bail and will be identifiable while in custody.
Counsel for the offender further submitted that it is appropriate that the Court take into account the offender’s loss of employment, the significant adverse publicity and the public humiliation that has resulted from the offending being made public. Counsel further noted that the loss of coaching was a natural consequence of the offending that the Court would not have regard to, however, submitted that the loss of the offender’s friends was something that was of particular significance as the offender has struggled to maintain friendships.
The prosecution submitted that extra-curial punishment was not relevant in the facts of this case. In particular, counsel referred to my decision in R v Payne-Moore [2021] ACTSC 125 (Payne-Moore), submitting that in accordance with the argument outlined at [56] and [57] a reduction in sentence due to adverse media coverage was not warranted.
The prosecution further correctly submitted that to reduce a sentence in this case on the basis of adverse media coverage would be contradictory to a purpose of sentencing namely to denounce the offender: s 7(1)(f) Sentencing Act.
I accept the submissions advanced by the prosecution. This is not a matter where the offender has been subject to a physical assault or such equivalent. It is a natural consequence of offending of this type against children that there will be public scrutiny and a resulting loss of reputation: Sabel v R [2014] NSWCCA 101; 242 A Crim R 49.
I note that the broader issue of public opprobrium or stigma being a mitigating factor at sentence remains to be authoritatively resolved: Ryan at [52]-[55] per McHugh J, at [123] per Kirby J, at [157] per Hayne J and at [177] per Callinan J.
I further note that in Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 (Einfeld) the NSW Court of Appeal indicated that the sentencing judge did not err in taking into account in sentencing the public opprobrium at [98]. I am not persuaded that the media coverage in this matter rises to the level that public opprobrium is a mitigating factor in this case. Further, in my view, the offender’s loss of his career was an inevitable consequence given the seriousness of his offending and the fact that a lengthy jail sentence would result from his offending conduct.
Statutory, Other Relevant Matters and Consideration
In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victims, and rehabilitation are important sentencing considerations.
In this case, as in other cases involving sexual offending (including child exploitation material offences), deterrence is of particular importance. This is especially the case given that the offences involved children. In CX v The Queen [2017] ACTCA 37, the Court stated at [39]-[40]:
An offender’s age and physical and mental condition are relevant to the sentence imposed, including the nonparole period: s 33(1)(m) Sentencing Act. Imprisonment may be a greater burden because of ill health suffered by an older offender. However, a sentence (including the nonparole period) must appropriately reflect a variety of sentencing purposes, including those that relate to the objective culpability of the offender’s conduct: R v Smith (1987) 44 SASR 587; 589–590 per King CJ; Holyoak v The Queen (1995) 82 A Crim R 502, 507–508; R v Walsh [2009] NSWSC 764.
In GS v The Queen [2016] NSWCCA 266, the appellant had been convicted of sexual offences against children aged six and nine years. The Court dismissed his appeal against a total sentence of eight years imprisonment with a five year nonparole period. The appellant had argued that there was a significant likelihood that he would die before the expiration of his nonparole period. Gleeson JA (with whom Fagan and N Adams JJ agreed) said at [94]:
...I am mindful that the need for general deterrence should be viewed in the light of the applicant’s age and ill health and the real risk that he will spend the remainder of his life in custody. However, the applicant’s offending, particularly considering the breach of trust which it involved, is of such a degree of seriousness that, taking into account all the circumstances, I do not regard the 2014 sentences as plainly unreasonable or unjust.
And Fagan J observed at [99]–[100]:
... It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him.
The necessity for the courts to impose penalties which reflect the community’s abhorrence of these crimes and which otherwise fulfil the purposes prescribed in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender. …
General deterrence is also important in relation to the child exploitation material offences: R v De Leeuw [2015] NSWCCA 183 at [72]; Payne-Moore at [96]. General deterrence is clearly important in relation to sentencing for all four counts before the Court. General deterrence is important in relation to grooming offences because offences of this kind are insidious and difficult to detect.
General deterrence is of great importance in sentencing child sexual offenders, especially where the perpetrator holds a position of trust as in this case: R v BJW [2000] NSWCCA 60; 112 A Crim R 1; Shepheard.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
While the sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. It is obvious in this case from the seriousness of the offending that no sentence other than that of full-time imprisonment is appropriate in this case.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64] (Zdravkovic). In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
In Dawson v The Queen [2019] ACTCA 9 (Dawson), the Court of Appeal set out the approach that should be taken regarding concurrency and accumulation when sentencing an offender for multiple offences at [37]:
As to concurrence and accumulation, the principles were set out in O’Brien at [26], where this Court said:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at [623]-[624].
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at [63].
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
I have taken the principles discussed above into account in determining concurrency, cumulation and totality. I note that the overall sentence must reflect the fact that the offending was committed against separate victims.
Counsel for the offender correctly submitted that care should be taken to avoid a “crushing” sentence, that is a sentence that may provoke or reinforce a feeling of hopelessness: R v Kerbatieh [2005] VSCA 194; 155 A Crim R 367.
In R v MAK at [15]-[18], the New South Wales Court of Criminal Appeal discussed two issues under the rubric of the totality principle.
First, the Court outlined that the severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence.
The Court in R v MAK referred to R v Clinch (1994) 72 A Crim R 301 (R v Clinch) at 306-307, where Malcolm CJ stated, “a sentence of five years is more than five times as severe as a sentence of one year”. R v MAK and R v Clinch were subsequently referred to in Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at [42]; Cavanagh v R [2009] NSWCCA 174 at [16]. Nevertheless, on occasion very long sentences are required and it is not possible to determine whether inadequate weight has been given to what was said in R v Clinch until the court also reflects on other factors: Hampton v R [2010] NSWCCA 278; 208 A Crim R 478 at [36]; see also Einfeld, Latham J (RS Hulme J agreeing) at [201], Basten JA at [185]-[189] dissenting.
The second issue, referred to by the court in R v MAK, above, at [17], is that the principle of totality has developed, in part, to avoid a court imposing a “crushing sentence”: see also the observations of King CJ in R v Rossi (1988) 142 LSJS 451 at 453.
The task of a sentencing judge is to balance the countervailing sentencing factors discussed by the High Court in Veen v The Queen (No 2) at 476. In that decision, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions, noting:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
In making this assessment for cases involving multiple child victims it is important to ensure that the sentences are structured to reflect the harm suffered by each of the victims: R v Wicks [2005] NSWCCA 409.
Rehabilitation
On the evidence, the offender’s prospects for rehabilitation may be assessed as guarded for the following reasons.
While I note that Mr Newton in his evidence indicated that there are several positive factors that tend to support the offender’s prospects of rehabilitation, I underline that in Mr Newton’s assessment, the likelihood of the offender reoffending was assessed at moderate-high risk and being above that of an average sexual offender.
The prosecution also noted in relation to Mr Newton’s assessment of positive factors, that Mr Newton’s evidence is based, in part, on the factor that the offender had not engaged in offending conduct for three decades. I note in that regard Mr Newton’s indication at [29] of his report that the offender admitted having accessed child abuse material over a “relatively extended period of time”. I also note the offender’s child exploitation production material offence charge relates to conduct between 2009 and 2011.
I further note that the offender’s paedophilic disorder will, most likely, be a condition that affects the offender for the rest of his life. It is apparent that the offender will require significant treatment, support and supervision in order to manage that condition.
Whilst I accept that the offender appears to be trying to take steps towards rehabilitation, it appears from the evidence of Mr Newton and Mr Burrows that his progress has been slow. In light of the assessment of the risk of re-offending by Mr Newton and the slow progress regarding treatment, in my view, the offender’s prospects are best described as guarded.
Sentence
It must be recognised by the Court that the offence committed against the victims has had an extremely serious and significant impact upon them all. Both the short and long-term consequences for the victims must be acknowledged.
Harm to victims is presumed in cases of sexual abuse against children who cannot consent to sexual acts: Clarkson v The Queen [2011] VSCA 157; 32 VR 361 at [3].
In R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 the Court stated at [110] that:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].
In coming to my sentence, I have taken into account the subjective matters referred to by counsel for the offender including the offender’s prospects of rehabilitation and the Verdins principles relating to the offender’s depressive disorder as well as the impact of the offender’s paedophilic disorder as discussed above.
In my view, it is best to structure the sentences otherwise than in numerical order as Count 2 is clearly the most serious offence. I note the general pattern of escalating offending from Count 4 to Count 1 to Count 2. I also note the evidence of Mr Newton, in particular that discussed at [165] and counsel for the offender’s submission discussed at [179].
The appropriate sentence for Count 2 is 15 years of imprisonment, reduced by 10% to 13 years and 6 months on account of the plea of guilty. The offence will be backdated to commence on 18 November 2021 to account for the time already spent in custody.
The appropriate sentence for Count 1 is 4 years and 2 months imprisonment, reduced by 20% to 3 years and 4 months on account of the plea of guilty. That sentence will commence on 18 August 2034.
The appropriate sentence for Count 3 is 3 years and 9 months imprisonment, reduced by 20% to 3 years on account of the plea of guilty. That sentence will commence on 18 April 2037.
The appropriate sentence for Count 4 is 2 years and 6 months imprisonment, reduced by 20% to 2 years on account of the plea of guilty. That sentence will commence on 18 November 2039. As is apparent from the commencement dates, the overall head sentence will be 20 years imprisonment (backdated to commence on 18 November 2021).
In relation to the non-parole period, I note the comments of the Court of Appeal in Henry v The Queen [2019] ACTCA 5 at [36]-[37], citing with approval Millard v The Queen [2016] ACTCA 14; R v Bernath (1997) 1 VR 271 and Toumo’ua, that the appropriate non-parole period is not decided by some mathematical relationship. Rather, a Court must consider a range of factors in determining the appropriate non-parole period including the need for rehabilitation, and general and specific deterrence. The Court in Henry summarised the view of the Court in Toumo’ua, stating at [37]: “the need for rehabilitation had to be balanced against the requirement that the sentence be of a severity appropriate in the individual case”.
The usual range for a non-parole period in this jurisdiction is between 50-70%: Zdravkovic at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v The Queen [2014] ACTCA 9 at [20].
The offender submitted that given Mr Newton’s assessment that the offender is an unusual sexual offender and has reasonable prospects of rehabilitation, a lower non-parole period is called for than would otherwise be the case.
As I have already outlined, I do not accept that submission which did not accord with other, and, in my view, critical aspects of Mr Newton’s evidence, including his assessment of the likelihood the offender would re-offend being moderate-high.
Counsel for the offender submitted in particular that a longer parole period would allow the offender to be supervised in the community.
In my view, the appropriate non-parole period is 12 years and 6 months. Further, in my view, that period appropriately balances the need for rehabilitation, objective seriousness and the need for general and specific deterrence which are important factors in the offences before the Court concerning children.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of Count 2 (CC2020/7714): Engage in a sexual relationship with a child under special care, the offender is sentenced to 13 years and 6 months imprisonment commencing on 18 November 2021 and expiring on 17 May 2035.
(c)In respect of Count 1 (CC2020/11987): Use child under 12 years of age to produce child exploitation material, the offender is sentenced to 3 years and 4 months imprisonment commencing on 18 August 2034 and expiring on 17 December 2037.
(d)In respect of Count 3 (CC2020/13262): Engage in conduct with a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature, the offender is sentenced to 3 years imprisonment commencing on 18 April 2037 and expiring on 17 April 2040.
(e)In respect of Count 4 (CC2020/11989): Possess child exploitation material, the offender is sentenced to 2 years imprisonment commencing on 18 November 2039 and expiring on 17 November 2041.
(f)I set a non-parole period of 12 years and 6 months commencing on 18 November 2021.
| I certify that the preceding three-hundred and eighteen [318] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 2 September 2022 |
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