R v So

[2023] NSWDC 172

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v So [2023] NSWDC 172

Hearing dates:

05 May 2023

Date of orders:

25 May 2023

Decision date:

25 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

See [96] – [120]

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >14 <16

CRIME — Sexual offences — Aggravated indecent assault

CRIME — Sexual offences — Act of indecency

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v MJR (2002) 54 NSWLR 368

R v Olbrich (1999) 199 CLR 270

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

Rex (Crown)
Jeremy So (Offender)

Representation:

Counsel:
J Tunks (Crown)
P Boulten SC/M Burke (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Murphy’s Lawyers (Offender)

File Number(s):

2021/85557

Publication restriction:

None

Judgment

1. Jeremy So (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H79021736	Offence	Maximum Penalty and SNPP
21	Indecent assault of a person under 16 years of age, contrary to s 61M(2), Crimes Act 1900	10 years SNPP-8 years
23	Have sexual intercourse with a person over 14 and under 16, contrary to s 66C(3), Crimes Act 1900	10 years
24	Have sexual intercourse with a person over 14 and under 16, contrary to s 66C(3), Crimes Act 1900	10 years
29	Have sexual intercourse with a person over 14 and under 16, contrary to s 66C(3), Crimes Act 1900	10 years
32	Have sexual intercourse with a person over 14 and under 16, contrary to s 66C(3), Crimes Act 1900	10 years
36	Have sexual intercourse with a person over 14 and under 16, contrary to s 66C(3), Crimes Act 1900	10 years

2. The offender also asks the Court to take into account the following offences on a Form 1 schedule:

Sequence H79021736	Offence	Maximum Penalty and SNPP
22	Aggravated indecent assault of a person under 16, contrary to s 61M(2), Crimes Act 1900 (attached to Sequence 23)	10 years SNPP-8 years
10	Commit act of indecency with a person under 16 years, contrary to s 61N(1), Crimes Act 1900 (attached to Sequence 29)	2 years
27	Aggravated indecent assault of a person under 16 years of age, contrary to s 61M(2) Crimes Act 1900 (attached to Sequence 29)	10 years SNPP-8 years
33	Commit act of indecency with a person under 16 years, contrary to 61N(1) Crimes Act 1900 (attached to Sequence 32)	2 years
34	Have sexual intercourse with a person over 14 and under 16 years, contrary to s 66C(3), Crimes Act 1900 (attached to Sequence 32)	10 years

Approach to Sentencing

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

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

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

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

7. Section 67 Crimes (Sentencing Procedure) Act 1999 provides that an Intensive Corrections Order is not an available sentencing option for these offences.

Facts

8. The offender was born on 15 December 1990. The victim was born on 3 May 1995. The offences were committed between October 2009 and 1 January 2011 when the offender was aged 18-20 and the victim was aged 14-15. The offender and the victim continued their relationship until June 2014 when the offender was 23 and the victim was 19.

9. In 2007 the victim began Year 7 at a selective school. She was a talented musician. In about August 2008, when the victim was 13, she connected with the offender on social media. He was in Year 12 at the same school.

10. In 2008 the victim was aged 13 and in Year 9. The offender began a course at a university adjacent to the school. The offender and the victim were in regular contact by email, text message and occasionally by phone. As the year progressed they began to see each other in the school grounds at lunch time and after school. The offender also spent time socialising with the victim and her friends. The offender volunteered to act as the victim’s accompanist during exams, competitions and school performances.

11. Sometime after the victim’s 14^th birthday in May 2009, the offender began to kiss her on the head and cheeks. One day he kissed her on the lips in a practice room at the school. From about Term 3 in 2009, they regularly cuddled each other and the victim would sit on the offender’s lap when they were together rehearsing at the school. The victim’s friends and the staff at the school observed that the offender and the victim were in a relationship.

12. In messages exchanged during 2009, the offender and the victim discussed being “attached”, “in a relationship”, acknowledging that there was a four year age gap and that the victim was 14 as well as that they loved each other. The offender in one of the messages stated that as a person who was 18 turning 19 that he should have stopped the relationship from developing.

13. In late October 2009 the relationship became sexual.

Sequence 21 – indecent assault on person under 16

14. In late October 2009, when the victim was 14, the offender and the victim met in a practice room at the school. While the victim sat straddled on the offender’s lap, they kissed. The offender lifted the victim’s shirt and rubbed his hands over her breasts and body before sucking and biting her breasts. He ground his crouch against her until he ejaculated in his pants.

Sequence 22 – indecent assault on person under 16 (Form 1 sequence 23)

15. In late 2009 prior to the offender’s 19^th birthday, in a room at the school, the offender gestured for the victim to sit on his lap. He kissed her on the lips and neck before reaching under her shirt and bra to rub her breasts and squeeze her nipples. He pushed her bra and singlet up exposing her breasts, kissing and sucking her breasts and nipples.

Sequence 23 – sexual assault person aged between 14 and 16

16. In about late 2009 the offender unbuttoned and unzipped the victim’s jeans. He placed his hand between the victim’s jeans and underwear and rubbed her vulva. He put one of his hands into the waistband of her underwear. He then pushed down his own underwear and briefly showed the victim his erect penis. The offender kissed the victim and moved his hand inside her underwear. He put his fingers between the victim’s labia and inserted one of his fingers in her vagina, which caused her discomfort.

17. In November 2009 in an exchange of messages between the offender and the victim he admitted that he could have kept the relationship platonic but did not. He wanted to break up with his girlfriend at the time but was finding it difficult to do so. He accepted that he was corrupting the victim’s childhood.

18. On 3 December 2009 in an exchange of messages between the offender and the victim, she disclosed that she had told two people about their relationship. The offender told her that he would prefer if she did not tell other people about them.

Sequence 24 – sexual assault person aged between 14 and 16

19. On 15 December 2009, which was the offender’s 19^th birthday, the victim went to the offender’s house to make a cheesecake. Later that day they were expected to perform at a school concert. The offender’s family were not at home. They played computer games in the offender’s bedroom, during which time the victim sat on the offender’s lap. The offender then lifted the victim up and put her on the bed and started kissing her. They both removed their outer clothing and were in their underwear. The offender laid on top of the victim and kissed her all over her body while pressing his penis against her. The offender put his hands inside the victim’s underwear and rubbed her vulva while sucking her breasts. The offender then put his fingers inside the victim’s labia and into the opening of her vagina. The offender asked the victim to play with his penis. She stroked it because she was unsure of what to do.

20. During 2010, when the victim was in in Year 9 the offender and the victim continued to meet up on school grounds and at each other’s houses to engage in sexual activity. The offender asked the victim and her friends to keep quiet about the relationship, particularly around the school staff given their respective ages at the time. The offender accompanied the victim to her Year 10 formal as her date.

Sequence 27 – indecent assault person under 16 years of age (Form 1 to sequence 29)

21. On 13 April 2010 at some time between 4pm and 6pm the offender and the victim met in one of the practice rooms at the school. They kissed and the offender sucked on the victim’s breasts and nipples and rubbed her nipples causing chafing. They exchanged messages on 14 April 2010 about this interaction on the day before.

Sequence 29 – have sexual intercourse with person aged 14 years or over and under 16 years   

22. On a day after the victim’s 15^th birthday in 2010, the offender attended the victim’s house for the first time. They caught the train together after school and walked to her house when it was getting dark. No one else was home when they arrived and they went to the victim’s bedroom. At one point the victim knelt on the carpet beside her bedroom door to see if anyone was home before the offender could leave. This time the offender inserted multiple fingers into her vagina and moved his fingers up and down.

Sequence 10 – indecent assault person under 16 years (Form 1 to sequence 29)

23. The victim then masturbated the offender’s penis in the bathroom until he ejaculated into the toilet. The offender then left the victim’s house.

24. From about late 2010 the offender would attend the victim’s house so they could rehearse. He got to know her family and would stay for dinner and attend family gatherings. He celebrated Christmas with her family in Hobart in 2010 and attended the funeral of her grandmother.

Sequence 32 – sexual intercourse with person aged 14 years to 16 years

25. At the end of November 2010 when the victim was aged 15 and the offender was aged 19, the victim was at the offender’s house and they were lying on his bed together. The offender inserted his fingers into the victim’s vagina and moved his hands up and down while the victim was touching the offender’s penis.

Sequence 33 – indecent assault with person under 16 years (Form 1 to sequence 32)

26. The offender and victim moved to the bathroom and got into a running shower where the victim continued to rub the offender’s penis until he ejaculated.

Sequence 34 – sexual intercourse with a person aged between 14 and 16 years (Form 1 to sequence 32)

27. They moved from the shower back to the offender’s bedroom where they cuddled on the bed. The offender was touching his penis and asked the victim to fellate him. The victim put her mouth over the offender’s penis and moved her tongue around it until his penis became erect. The offender got up into a seated position and the victim moved to kneel on the floor. The victim told the offender that she did not know what to do. The offender then instructed the victim on how to fellate him.

Sequence 36 – sexual intercourse with person aged 14 to 16 years

28. On 1 January 2011 when the victim was aged 15 and the offender was aged 20, the offender and the victim were at the victim’s house making a gingerbread house. The offender’s family were not at home. In the kitchen, the offender pulled down his jeans and underwear exposing his penis, the offender instructed the victim to pipe icing sugar onto his penis and lick it off, which she did. The victim then fellated the offender until he ejaculated in her mouth. The offender and the victim exchanged messages about this incident later on the same day.

29. In January 2011 the offender went overseas on a three month exchange. The offender and the victim remained in regular contact through text messages and continued to discuss their sexual encounters.

30. On 8 February 2011 the offender and the victim exchanged messages in which the offender told the victim that he had researched law and that what they were doing was illegal and could send him to prison for up to 10 years.

31. On 20 March 2011 the offender and the victim exchanged messages in which she described discomfort during the course of and following sexual activity.

32. The offender returned from overseas around Easter 2011. The offender and the victim resumed their sexual encounters although they were less frequent.

33. The offender continued to invite the victim to his house and she was introduced to his parents and family. Whenever she went to the offender’s house there would be some kind of sexual contact with the offender.

34. In 2012 the offender was offered a casual tutor position at the school teaching Year 7 and Year 8 students. A number of teachers expressed concern about the offender’s appointment taking into account the nature of the relationship between the offender and the victim that they had observed.

35. On a number of occasions in 2012 when the victim was aged between 16 and 17 and the offender was aged 21 and working at the school, they would meet at the offender’s house and the victim’s house to engage in sexual acts. When the victim turned 17 they were more public about their relationship outside of school grounds. The offender accompanied the victim to high school parties.

36. In November 2012 after the victim completed her HSC exams, she travelled with the offender and her brother to Europe for one month to attend auditions.

37. In February 2013 the victim told her friend in a text message that she and the offender had engaged in sexual activities throughout their relationship and that she had done so because she was scared of losing the relationship.

38. In March 2013 she commenced tertiary studies at university. The offender continued to act as her accompanist for performances and competitions.

39. In May 2013 the offender attended the victim’s 18th birthday party where he gave a speech.

40. In September 2013 the offender and the victim travelled overseas to commence studies in the United Kingdom with the offender attending a course in Manchester and the victim attending a course in London. They last had sexual contact on the victim’s 19^th birthday in May 2014. Soon after this the relationship ended.

41. On 30 January 2021 the victim attended Chatswood Police Station and reported the historical offences.

42. On 16 March 2021 the victim had a lengthy conversation with the offender which was lawfully recorded. During that conversation the offender made admissions to engaging in an unlawful relationship with the victim when she was a child. He acknowledged that in retrospect he would agree that he pressured the victim into doing things of a sexual nature that she was not comfortable with. He knew that their relationship was not legally permissible. He said he understood the gravity of his conduct now more than he did at the time. He apologised to the victim on multiple times stating that he wished none of it had happened, that she had not been put through any of it and that she had not had to suffer. He described some of the sexual contact with the victim as “terrible” and “horrible”.

43. On 26 March 2021 the offender was arrested and conveyed to Campsie Police Station where he was charged. The offender was remanded in custody, until he was released on bail on 30 April 2021.

Sentencing Assessment Report

44. The Court received a Sentencing Assessment Report dated 28 March 2023, the contents of which can be summarised as follows.

45. The offender currently lives with his parents. He has their support together with the support of his long term partner. He has a history of employment in the music industry. He is presently employed as a data entry operator in a pathology laboratory.

46. The offender accepted responsibility for his offending behaviour. He acknowledged the ongoing impact of his offending on the victim. He expressed a willingness to engage in interventions. He currently receives treatment from a psychologist and a psychiatrist. He expressed a willingness and ability to undertake community service work.

47. The author of the Sentencing Assessment Report assessed the offender as suitable for supervision and community service work which would be provided at a rate of up to 14 hours per month. He was assessed as a low risk of reoffending and would be referred to a Corrective Services psychologist for the preparation of a specific supervision plan.

The Offender’s Case on Sentence

48. The offender tendered the following documents:

1. psychiatric report of Dr Antony Henderson dated 28 April 2023;

2. psychological report of Professor Stephen Woods dated 1 May 2023;

3. medical material;

4. SAR Case Notes of Clare Fookes (Community Corrections) dated 16 March 2023;

5. offender’s letter to the Court dated 28 April 2023;

6. character reference of Pudestiana Lee dated 26 April 2023;

7. character reference of Stephanie Li dated 25 April 2023;

8. character reference of Talulah Yunkers dated 27 April 2023;

9. character reference of Catherine McQuade dated 21 April 2023;

10. the offender’s awards and certificates;

11. police statement of Kathryn Lim dated 31 May 2021;

12. Facebook screenshot provided to police by the victim dated 12 December 2010;

13. photograph of the victim and the offender at the victim’s Year 10 Formal;

14. photograph of the offender, the victim and his family at his, graduation;

15. photograph of the offender and the victim at the Sydney Harbour Bridge Climb;

16. two photographs of the offender and the victim at her 18^th birthday party;

17. email of Facebook notifications for the offender dated 30 July 2008;

18. email from the victim to the offender dated 19 December 2010; and

19. email from XXXX to the offender attaching two photographs, dated 29 December 2010.

49. The material relied on by the offender was very thorough and therefore voluminous. I have taken all of the material into account in coming to the appropriate sentence. What follows is a summary of the evidence relied on by the offender necessary to understand the reasons for the penalty imposed.

50. The offender was born in Hong Kong in 1990. He has a younger sister. His family migrated to Australia when the offender was five years old.

51. The offender has a limited recollection of his childhood. He recalls being a serious child who was quiet and passive.

52. His father worked in an aged care facility and the offender described him as emotionally reserved and unavailable. His mother worked as a medical secretary and the offender described her as extroverted, talkative and caring. She had periods of depression and developed Guillain-Barre Syndrome when the offender was 12, causing her to be hospitalised for over three months. He reported that his parents had high expectations of him with respect to his academic and musical pursuits.

53. The offender performed well academically and attended an opportunity class in Years 5 and 6. He was teased at school and had limited friendships. The offender attended Newington High School under a music scholarship from Year 7 to halfway through Year 10. He had trouble making friends and tended to spend time in his own company. His mother described him wearing a balaclava to school on the first day of high school as a consequence of his anxiety. He completed his schooling at a selective school based on his musical talent.

49. The offender was awarded a music scholarship to university, where he completed a Bachelor of Music (Performance) and was awarded the University Medal. The offender completed a Masters of Music in Solo Performance at the Royal Northern College of Music in Manchester, England. He also has a Graduate Diploma in Music.

50. He was employed by the Department of Education in 2017 to teach piano and accompany students at the school.

51. The offender is currently employed at a clinical laboratory as a data entry operator. He has completed a Certificate IV in Information Technology and intends to retrain as a computer programmer.

52. Prior to commencing his relationship with the victim, the offender had had three relationships, with his first being with a 15-year-old girl when he was 14. In this relationship, there was “some mutual touching” and kissing. The offender also had a relationship with Ms Lim, whose witness statement was tendered by the offender. Ms Lim and the offender began their relationship when Ms Lim was 15 and the offender was 16. Ms Lim stated that nothing of a sexual nature occurred between the two until she was 17.

53. The offender has been in a relationship with Ms Li for five years. They met whilst they were both studying abroad. She is a professional musician and they see each other every weekend. The couple wish to reside together. Ms Li, in her letter to the Court, writes that the offender is a respectful, empathetic and supportive partner. Ms Li stated in her letter to the Court that she will continue to support him after his sentence.

54. The offender experienced a number of traits consistent with Autism Spectrum Disorder (ASD) during his childhood and extending into adulthood and was so diagnosed in 2020. He reported to Dr Henderson that he has always felt socially awkward, struggled to know what to say in social settings, and tended to express himself in a blunt or concrete manner. He was bullied at school due to his socially awkward manner, struggled to make friends and spent much of his time at school alone. He has also struggled with conceptual thinking and to grasp jokes. He would become irritated if he felt misunderstood. The offender also has a preference towards more solitary activities and he has managed to establish friendships through online gaming. He has sensitivity to his surroundings and demonstrates features of obsession with reliance on routines. He adheres to a daily hygiene and eating rituals and becomes distressed if he is not able to follow these.

55. The offender has a significant family psychiatric history. His father suffers from obsessive compulsive disorder and is suspected of having traits consistent with ASD. A maternal nephew has been diagnosed with ASD. His mother suffers from depression.

56. The offender has experienced episodes of depression since his adolescence, characterised by pervasive low mood with difficulty experiencing pleasure, a lack of energy and motivation, feelings of worthlessness, hopelessness, and low self-esteem and confidence. He reported suicidal ideation to Dr Henderson. The offender also reported struggling with anxiety about his career, family and health.

57. Dr Henderson diagnosed the offender with ASD and Adjustment Disorder with Depressed Mood.

58. Professor Woods diagnosed the offender with Persistent Depressive Disorder, that had an early onset and is now of mild severity, and Major Depressive Disorder (Single Episode, originally clinically severe and intensifying, and now falling within the moderate clinical range), Adjustment Disorder with Mixed Anxiety and Depressed Mood secondary to harsh custodial conditions, fear in respect of a custodial sentence and loss of his promising musical career. Professor Woods disagreed with Dr Henderson with respect to the offender’s ASD diagnosis, and rather opined that the offender has a Personality Disorder with mixed features, including dependent, avoidant, melancholic and mixed Schizoid and Schizotypal nature. There is, according to Professor Woods, significant overlap between traits associated with Schizoid and Schizotypal Personality Disorder and ASD. Notably, the former can in some cases become less evident or remit with age, appropriate treatment and emotional and environmental support. Professor Woods also found that the offender did not satisfy relevant diagnostic criteria for Paedophilic Disorder or Hebephilia.

59. The offender and the victim reportedly began communicating online via social media in August 2008, when the victim was 13 and the offender 17. The victim initiated contact by adding the offender as a “Friend” on Facebook. They met in person in 2009, when the offender was in his first year of university.

60. The relationship began in 2009 when the victim turned 14 years of age. He engaged in kissing and sexual touching around this time, but they did not engage in penile-vaginal sexual intercourse as the offender was aware that this was illegal with an individual under 16. He reported that he did not intend to have sexual intercourse of this kind with the victim until she was 18 years old, which he believed to be an age-appropriate time.

61. The offender told Dr Henderson that he did not consider non-penetrative sexual activity with the victim to be harmful or illegal at the material time, as his own first sexual experience occurred at the age of 13 or 14 and he had not felt harmed by this.

62. The offender reportedly discovered that the sexual activity he engaged in with the victim had been illegal in 2011, when he looked it up online. He told Dr Henderson that he was disconcerted by this, however he did not consider his actions to be harmful or morally wrong, so he continued to engage in sexual activity with the victim. He did not consider the repercussions of being discovered and felt that others around him had accepted the committed nature of his relationship with the victim.

63. The relationship between the victim and the offender continued until early June 2014, when the offender was 23 and the victim 19. Their parents became friends during their relationship and the offender believed that both families supported the relationship. During their five-year relationship, the offender attended a number of events with the victim, including her Year 10 formal and Christmas with her extended family in Tasmania in 2010, where he was introduced as her boyfriend.

64. Dr Henderson opined that the offender’s mental condition and particularly his likely ASD impaired his ability to understand the moral and legal wrongfulness of the offending behaviour. In particular, Dr Henderson found that the offender’s rationalisation that his behaviour was not wrong because he had not experienced harm when he engaged in sexual activity at the victim’s age, as well as also his narrow understanding of sexual behaviour as penile-vaginal penetration, was consistent with the concrete and literal thinking characteristic of individuals with ASD. Further, Dr Henderson found that the fact that the offender continued to engage in the offending behaviour after he discovered it was illegal as he erroneously believed he was doing no harm is also related to his ASD and his reduced ability to consider the seriousness and consequences of his behaviour and the impact it had on others.

65. Dr Henderson assessed the offender as at a very low risk of further sex offending behaviour. He also does not demonstrate any psychopathic traits, which significantly lowers his risk of reoffending. Professor Woods assessed the offender’s risk of sexual reoffending to fall within the average or low-average range, however the offender has several factors which are likely to protect against the risk of re-offending. These include his supportive relationship with Ms Li, his family support, the supervision of his parents, stable employment, his denial of feelings of sexual entitlement, his low libido, his minimal history of substance use, his lack of criminal history, his acceptance of responsibility and his motivation for treatment.

66. The offender’s period in pre-sentence custody was unusually harsh. He was subject to threats of rape and assault, alleged inappropriate treatment by a particular correctional officer, emotional and social isolation, failure to provide him with a plate or cutlery, limited access to showers and sleep disturbance. He was reportedly not given fresh underwear and only allowed to shower three times during his one month in custody.

67. The offender was ostracised from the classical music industry in Australia after his offending conduct and charges were publicised in the media.

68. The offender expressed remorse for his actions and acknowledged their impact to Dr Henderson. He stated that he was mentally very young when the offences occurred and has thought deeply about his actions and the harm caused. Professor Woods found that, with the offender’s increasing appreciation of the harm caused by his offending behaviour, he is experiencing a high level of guilt-based trauma and shame.

69. In his letter to the Court, the offender also expressed remorse and recognised the harm that his behaviour had on the victim.

70. The offender tendered a number of character references, all of which describe the offender as a socially awkward but kind person and talented musician. Ms Yukers is a friend of both the victim and the offender and lived with the offender whilst they were studying in Manchester. In her letter to the Court, she stated that she believed that the relationship between the offender and the victim had been a positive and supportive one, although she denied knowing that their relationship had been a sexual one prior to the victim being 16. She was aware that the offender had expressed remorse to the victim over the phone.

71. Both Dr Henderson and Professor Woods detailed treatment regimes for the offender which involve regular psychological treatment.

Consideration

Objective seriousness

77. There are a number of features of the offending conduct that are relevant to each offence. The offences were not isolated. They occurred in the context of a sexual relationship that occurred over about 18 months. The difference in age between the offender and the victim was 4 years and 4 months. The offender accepts that the victim has suffered significant harm. The victim was a willing participant in the sexual conduct, but this does not equate to consent. The offender and the victim became friends over an extended period and were in a romantic relationship. They both considered themselves to be in love and cared for each other. There was no element of predatory conduct by the offender in initiating the relationship. The offender accepted at the time that his conduct was inappropriate because the victim was underage. The offences occurred when the victim was between 14 years and 6 months and 16 years. The offender was 18 when the first offence was committed and his moral culpability is less than a mature adult. I accept the expert evidence that by reference to his mental condition that the offender was immature at the time of committing the offences. The victim was academically advanced for her age and presented in the contemporaneous communications as quite mature. The offences were not sophisticated and were characteristic of a relationship between sexually inexperienced teenagers. The offences did not involve any exploitation, humiliation or threats. The relationship was relatively public. There was no penile vaginal penetration giving rise to a risk of pregnancy. There was no significant physical injury caused in the acts constituting the offences, but there was some discomfort.

78. Sequence 21 involved kissing, rubbing, sucking and biting of the victim’s breasts as well as grinding his crotch against her.

79. Sequences 23, 24, 29, and 32 involved digital penetration. Sequence 36 involved fellatio. The acts of sexual intercourse were fairly short in duration.

80. The offender suffers from a complex mental condition against a strong family history of mental illness. His upbringing was impacted by emotional deprivation and cultural expectations of strong academic performance. In this environment, his family probably did not perceive that he had a mental condition of any consequence. The offender was excluded at school as a result of his social awkwardness, his inability to relate to peers and sensitivity to environments caused by ASD or a personality disorder. I am satisfied that he was emotionally immature for his age at the time of the offences. I accept the evidence of the psychologists that his mental condition impaired his ability to understand what he was doing was wrong and for thinking through the seriousness and consequences of his actions.

81. I have taken into account the maximum penalty for the offences and the standard non-parole period for the s 61M(2) offence.

82. The objective seriousness of each offence is towards the lower end of the scale.

Deterrence

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

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

85. There is little need for specific deterrence in this case. The offender has accepted responsibility for his actions, accepted treatment and presents almost no risk of reoffending.

Aggravating factors

86. Sequences 29 and 36 occurred in the victim’s home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

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

Mitigating factors

88. The offender does not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). He is now 32 years of age.

89. The offender is unlikely to reoffend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. I prefer the evidence of Dr Henderson and Professor Woods over the application of a blunt psychological prediction tool by the Corrective Services psychiatrist. I am satisfied that the offences were committed as a result of the offender’s mental condition and his immaturity at the time of the offences. In the period between when the last offence was committed, and 2021 when the offender was charged, the offender has demonstrated that he is capable of leading a law abiding and productive life. His life circumstances are the model of stability and he presents a very low risk of reoffending.

90. The offender has excellent prospects of rehabilitation: by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has engaged with a psychologist and a psychiatrist since his arrest and committed himself to a treatment regime. He demonstrates good insight into the factors that gave rise to the offences and is unlikely to be faced with those circumstances in the future. He has a strong support network and a good work history. Had the offender been dealt with at a time closer to the offences, it would have been appropriate to place more emphasis on opportunities for rehabilitation. In the period between the offences and the victim’s complaint, the offender has demonstrated that he is unlikely to reoffend.

91. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has always accepted responsibility for his actions and recognised from an early stage that what he did was wrong. He apologised to the victim in the pretext call. He has expressed remorse to numerous people involved in preparing for the sentence proceedings and to the Court. I accept that he is genuinely contrite.

92. The offender was remanded in custody for 36 days at a time when there were significant restrictions in place to respond to the COVID-19 pandemic. He had limited opportunities to shower and to change into fresh clothes. I accept that those restrictions made the offender’s time in custody more onerous. I also accept that the offender was subjected to threats and poor treatment whist in gaol arising from adverse publicity and that the impact of these matters caused a decline in his poor mental state. I am satisfied that his mental condition would make any further time in custody more onerous and that he would be susceptible to bullying and intimidation by other inmates. I am also satisfied that any further time in custody is likely to cause a marked deterioration in his mental condition.

93. Thereafter, the offender was subject to stringent bail conditions that included an overnight curfew and daily reporting to the police. The restrictions placed on him on bail amount to the equivalent of about 2 months full-time custody.

94. The offender’s risk of reoffending is so low that he will not qualify to participate in sex offender treatment programs in custody. Also, the content of those programs, if he were required to undertake them, would not adequately respond to his complex mental health needs. This is a case where the offender can only receive appropriate treatment structured to his needs in the community.

95. The offender has suffered extra-curial punishment through the publicity surrounding the offences. He has lost face in the classical music community causing him to walk away from years of hard work in a promising career. Hopefully, he will find his way back to music in the future when he has served his punishment for the offences.

Penalty

96. Jeremy So is convicted.

97. I have taken into account the Victim Impact Statement (VIS) prepared and read aloud in Court by the victim. She is an articulate and impressive young woman who has experienced and continues to experience considerable psychological distress, pain and anguish. She has also turned away from music because it is too triggering for her, but she has channelled her energy into other charitable causes and community work. She has so much to offer the community. I hope that she can recover to living the life of happiness and fulfillment that she deserves.

98. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am not satisfied that the threshold has been crossed even for these serious offences. The nature and extent of the offender’s mental condition are such that he did not fully understand the consequences of his actions and his moral culpability is significantly reduced. The offender and the victim were close in age and the objective seriousness of the offences is low. The offender has not reoffended in the seven year period it took for him to be charged. He has no sexual attraction to children. He has engaged with treatment for his complex mental condition and is unlikely to reoffend.

99. I impose the following penalties:

Sequence 21

100. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 12 months.

101. The standard conditions of the order apply:

1. the offender must not commit any offence; and

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

102. The following additional conditions apply:

1. the offender must remain within a 50km radius of his home address until midnight on 24 November 2023.

Sequence 23 – taking into account sequence 22 on a Form 1

103. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 18 months.

104. The standard conditions of the order apply:

1. the offender must not commit any offence; and

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

105. The following additional conditions apply for 12 months:

1. the offender must remain within a 50km radius of his home address until midnight on 24 May 2024.

Sequence 24

106. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 18 months.

107. The standard conditions of the order apply:

1. the offender must not commit any offence; and

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

108. The following additional conditions apply:

1. the offender must complete 50 hours community service work.

Sequence 36

109. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 18 months.

110. The standard conditions of the order apply:

1. the offender must not commit any offence; and

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

111. The following additional conditions apply:

1. the offender must complete 75 hours community service work.

Sequence 29 – taking into account sequences 10 and 27 on a Form 1

112. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 3 years.

113. The standard conditions of the order apply:

1. the offender must not commit any offence; and

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

114. The following additional conditions apply:

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

2. the offender must participate in any sex offender treatment program as reasonably directed by Community Corrections;

3. the offender must complete 75 hours community service work.

Sequence 32 – taking into account sequences 33 and 34 on a Form 1

115. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 3 years.

116. The standard conditions of the order apply:

1. the offender must not commit any offence; and

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

117. The following additional conditions apply:

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

2. the offender must participate in any sex offender treatment program as reasonably directed by Community Corrections;

3. the offender must complete 75 hours community service work.

118. The offender must report to the Bankstown Community Corrections Office on or before 4pm on 1 June 2023.

119. If the offender fails to comply with the conditions of any of the Community Corrections Orders, further action may be taken against him. This may require him to return to Court and to be re-sentenced.

120. The combined effect of these penalties is that the offender must be of good behaviour and under the supervision of Community Corrections for 3 years. He is restricted from travelling more than 50 km from his home for 12 months and must receive treatment for his mental health, participate in any sex offender treatment program as reasonably directed by Community Corrections and must complete a total of 275 hours of community service work.

121. The offender must attend the Registry where a copy of the order will be explained and given to him.

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Amendments

30 May 2023 - anonymisation of person's name in 48(s)

Decision last updated: 30 May 2023