R v Proberts

[2022] NSWDC 737

District Court

New South Wales

Medium Neutral Citation:

R v Proberts [2022] NSWDC 737

Hearing dates:

18 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [53-54]

Catchwords:

CRIME — Sexual offences — Have sexual intercourse with person greater than or equal to 14 years & less than 16 years.

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

R v Wong [2003] NSWCCA 247

Jolly v R [2013] NSWCCA 76

WB v R [2020] NSWCCA 159

R v AB [2022] NSWCCA 3

R v Mauger [2012] NSWCCA 51

Texts Cited:

N/A

Category:

Sentence

Parties:

Rex (Crown)
Alfred James Proberts (offender)

Representation:

Counsel:
Franklin (for the Crown)

Solicitors:
Meech (for the offender)

File Number(s):

2020/00082123

Publication restriction:

N/A

Judgment

Introduction

1. Alfred James Proberts (“the offender”) appears for sentence in respect of one offence, that in breach of section 66C(3) of the Crimes Act 1900 he did on 10 December 2005 have sexual intercourse with the victim of the offence who was then a child above the age of 14 years and under the age of 16 years.

2. The case is with respect a relatively straight forward one, and the outcomes argued for by the parties as being appropriate, albeit not their primary positions, are not too distant from each other. Despite that, the conduct of the matter has been somewhat fiercely fought, and a range of issues ventilated, and it assists to raise some of those various issues at the outset.

3. On 5 August 2022 Jay Healey was sentenced in respect of a charge under the same section of the Crimes Act. Mr Healey and the offender were charged separately, with no allegation made of them being engaged in a joint criminal enterprise. The facts below will show there is little to distinguish between the offending factually. What is different is that at the time of the offending Mr Healey who was born on 28 November 1988 was 17 years and 12 days old and the offender was 18 years 5 months and 15 days old, having been born on 25 June 1987. The victim was 14 years 9 months and 16 days old, having been born on 24 February 1991. The age disparity between the two offenders and the victim was 2 years 2 months and 26 days in the case of Mr Healey and 3 years and 8 months (less 1 day) in the case of the offender. In the conduct of the sentence of Mr Healey, and until the receipt of an additional submission by the Crown after the sentencing hearing of the offender, all parties had proceeded on the basis that section 80AG of the Crimes Act was in force as at 2005. That section provides a defence to a person who has sex with a child aged over 14 if the person is within two years in age to that of the child. That section was not in force as at the date of the offending.

4. The point that had been made for Mr Healey was that but for a very short period of time there would have been no offending; the point is obviously not so persuasive for the offender though reference was still validly made to the age disparity between the victim and the offender, which the Crown referred to at [7] of its written submissions as being a relatively small age disparity.

5. I proceed on the basis of section 80AG not being in force as at the time of the offending on the basis that such legislation is not usually considered retrospective, and there seems to be no provision suggesting that is not the position here. The insertion of s80AG does show that the law concerning sex between people in the age range of 14 to 16 as one party, and the other party within 2 years in age of the other, has changed; what was once an offence is no longer an offence. As neither Mr Healey nor the offender fits the provision in any event the matter is academic, save for one matter. That matter is that the point being made by the offender is to emphasise the age disparity as being favourable to him. Whilst relatively speaking that age difference can be seen to be of some note, it nevertheless can also be said that both the victim and offender were teenagers. The concession of the Crown noted above is a fair and reasonable one.

6. Another aspect that emerged from these facts was whether the principle of parity had any work of significance to do given that when Mr Healey was sentenced much was made of the fact that the delay in his sentence meant that he was unable to be dealt with in line with the principles of sentencing for children but nevertheless with the consequence that when he was sentenced consideration was given to the fact that he was a child at the time of the offending and the sentencing process should reflect that. The point the Crown makes is that the same does not apply to the offender who was an adult at the time of the offending.

7. The oddity here is that parity does not assist the primary submission of the offender, something recognised at [46] of his submissions, where it was said that the section 10 result is open “even taking into account the issue of parity”, remembering that Mr Healey was convicted and a CCO imposed. Yet in answer to the Crown’s initial submission that parity does not apply, which if accepted added weight to the argument for a custodial sentence, the offender went to some lengths to argue the principle of parity applied, doubtless to firm up the fall back position he adopted of seeking a CCO outcome, as received by Mr Healey. Ultimately as I understood the Crown’s position it was accepted that there was some merit in the offender’s later submission. With respect I accept the submission made by the offender and note its reliance upon R v Wong [2003] NSWCCA 247 at [35], as set out in the offender’s submissions. That passage both aids and hinders the offender noting as it does that it is relevant to have regard to a sentence imposed by the children’s Court on a co-offender but then noting the limitations of that comparison given the sentencing objectives that apply in the children’s Court. As already noted, both offenders here are being dealt with at law but with the approach to Mr Healey being that as indicated.

8. Further in my view although the two offenders are not co-offenders charged with the one criminal enterprise, I do consider that the marked similarity in the facts to the point of being nearly identical but for the age disparity and that it was the offender who first had sex with the victim results in it being necessary to take into account the principle of parity.

9. A further issue was how the delay in the determination of the matter should be taken into account. One aspect of the argument as to delay for the offender was that the years since the offending has allowed the offender to show himself to be a pro social member of the community and unlikely to reoffend. The offender also submitted that he was disadvantaged because had he been sentenced earlier it would have been at a time when sentencing practices were more lenient, something now prevented by s25AA. The Crown argues that the offender has been able to enjoy years of a life in the community to which he was not entitled. I accept that the offender has been able to enjoy his life to date without having to account for his actions, but that fails to take into account the impact that the sentence will now have on his life, which it would not have had if imposed earlier. Simply put, the punishment and crime would likely be well behind him by now had there been no delay, and the impact on his life by being sentenced now is greater than had it occurred earlier. The best example of this is the impact on his work life.

10. This issue of delay feeds into considerations of rehabilitation and likelihood of reoffending, matters which loomed large in the Crown case. This aspect, and the consideration of the psychologist’s report is dealt with below.

11. I note that the maximum penalty for the offence is 10 years imprisonment. There is no standard non parole period. I take the maximum penalty into account as a legislative guidepost, indicating the legislature's view of the seriousness of the offending so as to assist in arriving at the appropriate sentence.

12. The plea of guilty was not entered at the first opportunity. The Crown proceeded by way of a primary charge under section 61J and with the current charge being in the alternative. Putting aside the arguments that might emerge as to the reasonableness of withholding a plea in those circumstances, the parties agree section 25D dictates that the discount available for the guilty plea is 5%. I note Mr Healey had the benefit of a 10% discount.

13. There are no matters to be dealt with by way of the Form 1 procedure nor are there any matters to be dealt with by way of a section 166 certificate.

14. The offender was served with a court attendance notice on 2 March 2020, more than 14 years after the offence.

Agreed Facts and objective seriousness

15. The Crown bundle which became exhibit A contains agreed facts. It was accepted by the parties that the recounting of the facts of the matter as set out in the reasons on sentence concerning Mr Healy could be adopted to a large degree to the point where it was identified by reference to the earlier judgment in the submissions at the hearing. The Crown does not accept that it is open to make a finding that the act of sexual intercourse occurred by consent as was made in the matter of Mr Healy. As I understood the Crown’s argument it was said the Court was not asked to do so and that the facts do not allow for that finding. That finding is made at paragraph [13] of the earlier reasons with reference being made to [8] in particular and I note also [7]. A finding of the act of sexual intercourse being by consent as a matter of fact though not law in my view is well open on the facts of Mr Healey, an unsurprising conclusion given that was the conclusion earlier reached. In the present case it is again arguable, but the facts are not stated in precisely the same terms in each case in respect of the actual offending conduct. Further, in the present case the offender does not seek such a finding but referred to the matter as being neutral. That position is similar to the Crown approach which is to say that it cannot be said on these facts that there was no consent but nor could it be said that there was consent. Given the agreed position as to objective seriousness, and the effectively agreed position on this issue, the “neutral” course suggested by the offender is a sensible one and one that is adopted.

16. The following is an adaptation of the summary of facts in the matter of Mr Healy. In 2005 the victim attended Ballina High school and was in year 8. She and her best friend, who was in year 7, would often sneak out (I infer from their homes) and meet up with people who they went to school within the Ballina area. On 10 December 2005, the day before the friend's 14th birthday, they went out. They walked, with the victim’s sister, to a park where about 30 other kids were. The victim and her friend asked a male to buy them a bottle of alcohol. That male was not the offender. That male purchased a bottle of vodka said to be of “maybe about 700ml” and gave it to them. The three girls, that is the victim, her sister and the friend, began drinking the bottle of vodka together. It is not stated how much was consumed by the victim, but it is stated that the victim “felt intoxicated”.

17. To this point there is no involvement of the offender with the victim. The offender had on this same evening together with the co-offender attended a party, had consumed alcohol, and had become intoxicated. The offenders and others from the party walked towards the skate park. They met the victim and her friends on the way. The offender, co offender and victim continued walking towards the skate park until they split off from the main group and walked to the oval at Ballina public school. On the way to the oval the victim kissed each offender in turn. Nothing is expressly said as to who initiated that kissing, but the facts are expressed with the victim as the active party.

18. Without more, the fact next stated is that the offender Mr Proberts had penile-vaginal sex with the victim on the oval wearing a condom. The agreed fact is that whilst that was happening the co offender Mr Healey walked away to put a condom on and returned shortly thereafter. The offender, Mr Proberts, left.

19. In assessing the objective seriousness of this offending, the absolute minimum of detail in the facts should be noted. In short, the offender met the victim, he walked with others for a distance and then the offender and co-offender with the victim separated from the group. There is no suggestion that this occurred at the suggestion of any particular person. Intimacy in the form of kissing that occurred is stated in a way suggesting it was the victim who initiated it given the way paragraph 16 of the facts is phrased. Without more, the facts then say, so far as they relate to the offender, that the intercourse with the offender then occurred, and the offender then left, prior to the co offender Mr Healey and the victim having sexual intercourse.

20. The facts are also notable in that the facts relating to intoxication so far as it relates to the victim is that she “felt intoxicated”. Concerning the offender, it is “became intoxicated”. I infer from this phraseology that the victim was less intoxicated than the offender. This is relevant because the Crown sought to rely on the state of intoxication of the victim to argue that she was vulnerable along with the fact of her age. I accept the offender’s submission that as the age is an element of the offence it should not be considered an aggravating feature. As to intoxication, the argument obviously becomes stronger the more intoxicated the 14-year-old female may have been, and the Crown argues that it is the age of the victim and her intoxication “to any degree”. In order to be taken into account adversely to the offender a matter must be proven beyond reasonable doubt. To what degree was the victim intoxicated? The fact agreed is simply said that the victim “felt intoxicated”. The amount of alcohol shared between the victim and others is said to be “maybe 700ml”, that is, it may have been less, and nothing is said as to how that amount was shared between those drinking it. The drinking engaged in by the victim occurred before the victim and the offender had met that evening. On the agreed facts it can be said the victim did drink some vodka; however, they do not allow for a determination of how much, so all that is left is the agreed subjective state of the victim feeling intoxicated. In my view this state of the facts is so imprecise that it does not permit any weight of significance to be given to the victim being vulnerable. So far as the position of the offender is concerned section 21A(5AA) applies.

21. In assessing objective seriousness, as noted in the reasons on sentence for Mr Healey, I take into account the nature of the intercourse being penile vaginal intercourse. I note also that there is no hierarchy of the seriousness of the various kinds of sexual intercourse for offending of this nature; see for example Jolly v R [2013] NSWCCA 76. I also take into account that the victim was at approximately the halfway point in terms of the range of age that this offence applies to. Further I note the age of the victim relative to the age of the offender, referred to above. There is nothing in the facts that suggests that this sexual intercourse endured for any significant period.

22. The offender submitted that the objective seriousness of the offending was in the low range, and the Crown submitted it was below mid, and towards the lower end for offending of this type. I accept these submissions; the offending as considered above is in the low range of objective seriousness.

Subjective case

23. The offender relied upon a psychological report prepared by Thea Gumbert. It sets out the history of the offender. He was raised in Dubbo by his mother and his stepfather. His biological father played little part in his life and he saw him about once a year. They moved to Ballina in about 2000. He was raised in a settled home environment. Although he did not enjoy school that much, he completed year 12 and hoped to become a mechanic but did not pursue this after a low range drink driving charge. He had various jobs both before and after leaving school which although not stated would appear to have been about 2004. In 2013 he became a trainee ranger and continued in that field which he enjoyed very much until being charged with the current offence and had to cease that work as he now failed his working with children check. His work with the Ballina local council created a role for him so that he could continue to work despite the charge. He does not enjoy his new role as he did the former role.

24. In 2018 two of his close friends died by suicide. Until then he had been what he describes as a happy person. He struggled with grief however and sought counselling with Kynan Gooding. The treatment ended in 2019 but resumed in early 2020 to assist with the stress and anxiety of the current proceedings. Since October 2018 he has exhibited at times symptoms of depression. His mental health history is otherwise uneventful. These matters are supported by a letter from the counsellor. The psychologist report concludes that the diagnosis of an earlier major depressive disorder is agreed and that the offender continues to experience clinically significant depressive symptoms at the time of the assessment.

25. The offender’s sexual history commenced at age 17 with his 16-year-old girlfriend. He identifies as exclusively heterosexual and attracted to adult women. His current relationship of eight years standing is a monogamous and committed one. He is the stepfather of two children and has a two-year-old daughter with his partner. He reported watching online pornography on a weekly basis and said he was not interested in specific or unusual pornography. He denied using sex workers.

26. In describing the current offence, he said he was unaware of the victim’s age. He said he thought she was around “our age” and that he had not thought about it.

27. In 2019 he was made aware of Facebook messages making reference to the offending that led to charges being laid against the victim’s boyfriend relating to online harassment and it was after this that the victim made a police report. The offender said that if he knew the age of the victim, he would not have committed the offence.

28. There was really no contest as to this history. It shows a person having been raised in a healthy environment, completing school, entering the workforce, developing a relationship and having contributed to the community in a pro social way. This is supported by other material relied on by the offender. The offender relied on four different testimonials. Those testimonials include two from the Ballina Shire Council, one of which is from a former Mayor, who speak very highly of the offender in all respects. A third testimonial is from a friend who has known him for 16 years speaking of him as having matured over the time that he has known him and vouching for his good character and the role he plays with his three children. The last testimonial is from his partner. She described him in very favourable terms as one might expect but speaks persuasively as to the positive impact he has had on her two sons who are now in year 8 and year 11. The testimonial sets out involvement with the victim prior to 2019 in terms of harassment. It also reveals that the offender had disclosed to her the events constituting the offending years before 2020. She also speaks of the hardship of any prison sentence on the family though the hardship spoken of is like that experienced by many people sentenced to custody.

29. Returning to the psychological report, a comprehensive risk assessment is carried out. This was the main purpose of the report. Both a static risk assessment and a dynamic risk assessment was carried out. On the static assessment the offender was assessed as being an average risk of sexual recidivism. This statistically translates to a percentage chance of offending within the next five years of between 3.4% and 7.4%. In oral evidence the psychologist stated that the risk halves after each five years. In other words, whatever the risk was at the time of the offending occurring, which is now 17 years ago, as there has been no further offending that initial assessment of percentage risk has been halved in the first five years, that likelihood has then been halved again in the second five years, and that figure arrived at halved once again in the last five years. Assuming that the percentage range given above applies to the offender in the first five years post offending this would mean that the offender's percentage likelihood of offending based on the static assessment is now in the range of 0.42 of a percent to 0.925% in the next five years.

23. A dynamic risk assessment was then carried out. The tool applied is referred to as the risk of sexual violence protocol (“RSVP”). It takes into account a range of matters which are grouped in five broad categories namely sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. As a result of that assessment the summary given is “according to the above assessment Mr Proberts case prioritisation is classified as low/routine. He shows low risk of serious physical harm to others. No imminent risk is identified indicating a need for immediate action in terms of management”.

24. Interestingly the conclusion was reached that, contrary to what one might first think, that the insistence on not knowing the victim’s age was considered by the psychologist to be a plausible account of his mindset at the time, namely that he believed himself to be engaging in consensual sex with a partner of similar age to himself. Whilst that would be a matter for a court to determine and whilst it is in effect contradicted by the plea, the report goes on to say at page 11 “there was no indication from his presentation self-report or other sources of information that he displays a pattern of sexually deviant interest or holds attitudes that would support or condone sexual violence”.

25. When further commenting on the risk question the psychologist stated that there were no significant factors identified which would place the offender at increased risk of a new sexual offence and went on to say there were in fact a number of protective factors such as his degree of social support, history of stable employment, psychological adjustment, and his engagement with treatment and community supervision. I will also add the lack of any further sex offending over a lengthy period of time, something commented on by the psychologist and would add that the reference to social support presumably includes the healthy family environment he is presently in and has been for a lengthy period of time. The conclusion is that the offender is considered to be at a low risk of future sexual offenses and no targeted interventions were necessary.

26. As to recommendations it is asserted that community sentencing options would be best for ongoing rehabilitation and positive adjustment. Full-time custody would have detrimental impacts on his current and future psycho-social functioning by undermining his employment, exacerbating depression, disrupting treatment and separating him from family and social supports. It may also increase his exposure to the antisocial milieu.

27. These conclusions were challenged in cross examination by the Crown. To that end the Crown relied on a telephone intercept of a conversation between the offender and a male friend on 21 November 2019. This recorded conversation had been heard by the psychologist who in her evidence in chief said that having heard it she may adjust one element of the RSVP assessment, but it would not cause an adjustment to the conclusion. That aspect was part of the psychological adjustment category and specifically whether the offender expressed attitudes that support or condone sexual violence.

28. The recorded conversation includes references to having “a perve” and that it was “schoolies” and then a passage where the offender says “I drive past Ballina High sometimes and it’s just like oh my God. See a little schoolgirl walking down the road so you stop her to cross the crossing and like takes her like a minute to get there” and with the friend saying “what they were just fucking does my head in. Like if I was their parents I’d be like no” with the offender then observing that they’re all under 18. They then talk of fucking and their asserted sexual exploits with girls when they were younger including talking of swapping. It also includes at page 15 the offender talking of sex with a particular girl when she was “like 13 or 14”. The friend talks about a video he has of a sexual event and of using a cucumber on a particular girl. The conversation conveys much laughter and excitement in the course of this discussion.

29. In cross examination of the psychologist the following points were canvassed:

1. If it was assumed the defendant knew the age of the victim does it change the risk assessment; the answer was no.

2. If it was assumed that the offender had sex with a 13-year-old as the conversation suggested when he was 17 (a date picked because the evidence was of the offender saying that was when he first had sex) would that change the assessment and the answer was it would depend.

3. When taken to page 15 of the transcript of the conversation which is a reference to the comment of having sex with a 13 or 14-year-old and asked whether that impacted on his attitude assessment the answer was no because it was not charged.

4. If it was assumed at age 32 (his age at the time of the conversation) that he had an interest in little schoolgirls would that impact on the assessment; the answer was it would depend if you are talking 17-year-olds or 13-year-olds. It was then suggested that if “little” means underage and you assumed he had a sex interest in underage girls would that alter the risk assessment in circumstances where he had told her he did not have an interest in underage girls; the answer was it would affect a minimisation item.

5. If it was assumed that page 13 of the transcript reflected the offender’s attitude as to consent the answer was that the document should be read in context and in knowledge of the age and relationships and degree of consent involved. This was the passage concerning swapping.

6. Ultimately a rolled-up question involving a number of assumptions including that there was another occasion (ie other than the offending) of sex with a 13 or 14 year old, that the offender had an interest in girls under 16 and minimised what he had reported to the psychologist was put to the psychologist and asking whether that would change the assessment. The answer was the most substantial factor was an attraction to underage girls. If that was the case the psychologist would probably revise the assessment to moderate or elevated if there were indications he could not control those urges or behaviours.

37. The furthest the psychologist varied from her report was the last point just made. It needs to be established however that there is an attraction to underage girls as well as indications that he could not control his urges. Given the categorisation of the conversation given by the psychologist as referred to below I do not make a finding that he cannot control his urges, assuming he has any. Furthermore, I would not find beyond reasonable doubt that the conversation should be accepted as being a frank admission to sex with 13- or 14-year-old girls when he was 17 years old. As the psychologist noted the conversation needs to be seen in context and in my view, it is a style of conversation in which truth is likely to be a casualty. Furthermore, even if there had been offending behaviour uncharged 18 years ago there are no indications whatsoever that he cannot control the urges or behaviours.

38. In my view the psychologist displayed great objectivity and sound judgment. In particular her observation of the conversation being one of objectification and disrespect is well made and I accept it. Further her observation that the conversation is not about any intended or actual offending in terms of sexual violence but should really be seen as a tawdry attitude. Most insightful of all was her observation that attitudes of objectification and disrespect do not differentiate between offenders and nonoffenders. Such attitudes are very common in the non-sexual offending population. These matters did not cause her to change her assessment. I accept the assessment of low risk of sexual offending made by Ms Gumbert on the dynamic assessment.

39. The offender does have a criminal history. I do not consider that history to be one that denies him leniency. It shows that in 2005 there was a low range PCA charge and in 2008 charges of common assault and affray and lastly in 2011 a drive with mid-range PCA. There has been no offending whatsoever since 2011 when the offender was 24. I note from the assault and affray matter he received a bond suggesting it was of no great moment and note the minor nature of a common assault charge.

Findings

40. Based on these matters I make the following findings relevant to matters of mitigation

1. The assertion by the offender that he thought the victim was “our age” rings hollow in the face of the plea of guilty. Further the reference to the harassment he received as being the precursor to the complaint reflects at least to some degree a lack of acceptance of responsibility for his wrongdoing.

2. Further in relation to remorse his failure to plea at an earlier stage adds to the need to be guarded as to any assessment in this regard. I do note the comments of the psychologist in this regard which may on one view give him some assistance in this aspect given his assertions of believing it to be “consensual” and of her being about “our age”. With respect however I am unable to come to the conclusion that the offender expresses the degree of remorse that might otherwise have assisted him.

3. His criminal history does allow for leniency and taken together with his overall subjective case I find he is a person of good character. This is not a case where his good character enabled the offending.

4. There was no planning involved of any meaning in this offence. It was opportunistic; an opportunity presented itself which the offender took advantage of.

5. There is in my view a low risk of reoffending in line with the psychologist report. In my view there is very little likelihood of re offending generally, and next to nil as concerns girls under 16. As to rehabilitation I consider there is very little need for any steps for rehabilitation or any rehabilitation that needs to be undertaken.

6. The offenders prospects are good. Until the charges he had a very good employment situation which he now does not enjoy as he formerly did due to the enforced change of work but he nevertheless maintains employment and is in a stable and loving relationship and is well regarded by his employers and his peers. As noted he is rehabilitated.

41. In respect of the matters canvassed at the commencement of these reasons the following findings are made:

1. Age disparity; the whole issue is really put to bed by the concession of the Crown that in this case it is a relatively small age disparity, and is a matter which contributes to the Crown assessment of the objective seriousness as being below mid range and falling toward the lower end; I accept that position.

2. Parity; it is accepted to be applicable; yet it is also obvious that whilst both offenders are sentenced at law, Mr Healey was sentenced with greater consideration being given to the favourable principles of sentencing children, which was not available to the offender. Yet in sentencing the offender, the detriment to him of that aspect is made up to some extent, but not wholly, by the consideration of his youth.

3. Delay; both parties are right; on the one hand, the offender has been able to enjoy life in a manner he may not have been able to had he been sentenced at an earlier time. At the same time the delay has enabled the offender to show his worth to the community, which benefits him now, and has benefited the community to date. The reference to R v Cattrell relied on by the Crown comes from a passage stating delay does not automatically operate as a mitigating factor; in other words, it often does. Here, in addition to the above competing matters, the offender likely loses the benefit of the work he has performed to date; I say likely, as the evidence of the Ballina Shire Council letter is not emphatic. Overall, the fact of the delay aids more than hinders the argument for the offender; to some degree because of the additional detriment the impact of the sentence will have on his career now as opposed to it having occurred earlier, but more significantly because of it enabling better evidence than would normally be available as to his prospects of rehabilitation and likelihood of re offending.

4. That last element was a major plank in the Crown case. As discussed above, the Crown sought to establish that the offender was a continuing sexual risk to the community; for the reasons outlined above that has not been established and the finding is instead favourable to the offender.

5. The Crown rightly points to the psychological damage, or trauma that sexual offending upon children causes, which is supported by the victim impact statement here, albeit that statement is very brief. It says the victim has suffered anxiety, depression and self-harm, and has intimacy issues. I take that impact into account in determining the sentence. The adverse impact of sexual offending on young people is more recognised and better appreciated now than it was in 2005. By section 25AA(1) the sentence to be imposed must be in accordance with the sentencing patterns and practices at the time of sentencing, that is now, and not as at the time of the offence in 2005. In WB v R [2020] NSWCCA 159 it was said that part of the reason for the currently heavier penalties is because of the now greater knowledge of the long-term effects of sexual abuse on a child or young person than was previously known. There is no basis for any finding inconsistent with how these events impacted upon the victim.

42. The short point for the Crown was to say that this was a case of a vulnerable intoxicated girl being taken advantage of. To a certain degree that is a valid point, though I do note the lack of detail as to the intoxication as discussed above. It also needs to be remembered the facts are described in essentially one line saying that sexual intercourse occurred, so that the facts, as already noted, are sufficient to make out the offence, and little more. The Crown was bordering on vociferous in its opposition to the offender’s application for a section 10 outcome. The basis for that argument by the offender is based on its arguments concerning delay referred to above and also the youth of the offender, the low objective seriousness of the matter and the low likelihood of reoffending.

43. In aid of the offender’s submission the case of R v AB [2022] NSWCCA 3 was relied upon. The facts of that case are so extreme and so much a case almost in its own category that reference to it does not bear comparison. It is also the fact that in that case the offender had spent 8 ½ months in custody prior to sentence.

44. Various authorities called in aid by the offender do not raise contentious propositions. The matter however I think is best addressed by simply referring to the provisions of section 10 itself. That section allows for there to be no conviction recorded but in doing so requires the non-exhaustive factors set out in subsection 3 to be taken into account. The offender rightly points out that it is not necessary for each of those matters to be decided favourably to the offender so that the fact that this offending is not trivial does not prevent the outcome sought. Another factor to consider is any extenuating circumstances which was plainly so evident in the matter of AB but in my view are not present in the present case to such an extent as to justify the making of a section 10 order. It could well be argued that it is an extenuating circumstance that there was such a delay in the bringing of the charges but in my view that is not sufficient. A great number of cases of sexual offending are prosecuted after delay and the reasons for such a delay such as the reluctance of victims to come forward could hardly be something favouring the offender (though there are matters of delay that favour him as has been discussed above). Lastly is his character, antecedent, age, health and mental condition. These are all matters of course that are taken into account in any event and they do overall favour a section 10 result but in my view more is needed than the good subjective case outlined above of the offender.

45. In Mauger [2012] NSWCCA 51 at [40] what was being discussed was the distinction between what was then referred to as a section 9 bond (with conviction) and a section 10 bond (without conviction) in a way which could be viewed by analogy as the imposition today of a section 9 CRO and no recorded conviction under section 10 on the one hand and a community correction order on the other. Notably it was said in that paragraph “the particular legal and social consequences for the respondent recording a conviction against him in this case far outweigh the requirements of punishment denunciation or special or general deterrence”. Those consequences for the respondent were in effect the impact on his employment and travel. It was argued by the Crown that it was the fact of being charged which lead to termination of his employment not any conviction that might be imposed. Yet the court held at [28] that the need to reveal the existence of a conviction arises in common experience from time to time. Without reference to any specific evidence apart from that particular job this was held to be a relevant matter to take into account, that is that the prospect of a conviction having possible detrimental consequences for employment. On the other hand, so far as travel was concerned the court considered there was inadequate evidence to make good a similar argument.

46. In the present case it is said and seems to be accepted and I act on the basis that as set out at [29] of the offender’s submissions “the offender will likely be unable to remain in his current employment due to the suspension of his working with children check. He has also been demoted and had his position changed since being charged with these matters”. The letter from the council dated 26 July 2022 at tab four of the offender’s bundle shows that it is not a certainty that he will lose employment though I do conclude that he would not be able to have a role interacting with members of the community inclusive of children. In my view the approach of not recording a conviction for a sexual offence involving a child so as to avoid the consequences such as not obtaining the working with children check should be adopted with great caution; the very point of the system or the check is to identify people who have committed such offenses. With respect it could be said that matters concerning the working with children check argue in favour of a conviction not against it.

47. Further whilst this offending is a far remove from the more gross kind of child sexual abuse it is nevertheless an example albeit by a very young man of sexual misconduct recognised to cause trauma. Whilst there may not be a need for specific deterrence in this case there is a need for general deterrence. I acknowledge the comments made about not diluting the significance of the imposition of a bond as stated at [37] of Mauger. There is however present in this case the need to recognise the harm done to the victim, a matter not so prevalent in Mauger, without suggesting there are no victims in cases of drug supply. This together with the purposes of general deterrence, particularly in matters concerning children, denunciation, and accountability (particularly in light of the finding as to remorse), weighed against the personal circumstances of the offender result in a section 10 outcome not being appropriate.

48. The fallback position for the offender was to argue for the imposition of a community correction order. The Crown position in that regard was to say that the Crown could not submit that a community correction order was not open.

49. The purposes of sentencing are set out in sections 3A and are as follows:

1. To ensure the offender is adequately punished.

2. To prevent crime by deterring the offender and others from committing similar offences.

1. To protect the community from the offender.

2. To promote the rehabilitation of the offender.

3. To make the offender accountable for his actions.

4. To denounce the conduct of the offender.

5. To recognise the harm done to the victim of the crime and the community.

50. The purposes of sentences that need to be addressed are identified above. There is little need if any need at all for specific deterrence nor is there any need to protect the community from the offender. The sentence should also promote his rehabilitation, which in this case is not so much to rehabilitate him, but to act in a way that encourages or facilitates what has been a pro social life, and aids in dealing with his depression.

51. Under the legislation now governing the discounts applicable on a plea of guilty the offender is entitled to a 5% discount. I take this lesser discount into account.

52. Section 5 CSPA requires a term of imprisonment only be imposed where no other sentence is appropriate. Section 5 requires consideration of all possible alternatives to a penalty of imprisonment. For the reasons given above my view is that the sentence should involve a conviction. I consider that particularly appropriate in order to recognise the harm done to the victim and to denounce the behaviour. On the other hand, based on the findings of the psychologist both in her written report and her views expressed orally it is claimed that little utility is served by imprisoning the offender. It will not provide the rehabilitation that he may need (which I do not consider necessary apart from some possible counselling more to address depression than offending), it will not add to any protection of the community and has a real prospect of causing damage. Custody would be justified if it was necessary for general deterrence and denunciation. Those purposes however are served by a conviction and a punishment served in the community. This result is the same as that achieved by Mr Healey. I consider that outcome justified by the reason that whilst Mr Healey had the benefit of the consideration of sentencing principles appropriate to children, he did not have as favourable subjective case as the offender.

Orders

53. Of the offence under section 66C(3) the offender is convicted.

54. The offender is sentenced to a community correction order for a period of two years commencing 25 November 2022 and expiring on 24 November 2024 subject to the following conditions:

1. The offender must not commit any offence;

2. The offender must appear before the court if called on to do so at any time during the term of the order.

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Decision last updated: 12 May 2023