R v Song

[2022] NSWDC 100

District Court

New South Wales

Medium Neutral Citation:

R v Song [2022] NSWDC 100

Hearing dates:

4 February 2022

Date of orders:

8 April 2022

Decision date:

08 April 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [172].

Catchwords:

Cause person to take intoxicating substance with intent to commit indictable offence – sexual intercourse without consent – aggravated indecent assault – victim under authority – finding of special circumstances – principle of totality.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Mental Health Impairment and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Chenhall v R [2021] VSCA 175

Christie v R [2012] NSWCCA 228

DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1

Faehringer v R [2017] NSWCCA 248

Fenner v R [2022] NSWCCA 48

Hoskins v R [2020] NSWCCA 18

Irmak v R; Dagdanasar v R [2021] NSWCCA 178

Korovou v R [2021] NSWCCA 28

McKinley v R [2022] NSWCCA 14

McKinnon v R [2020] NSWCCA 106

Muldrock v The Queen (2011) 244 CLR 120

Nguyen v R [2007] NSWCCA 14

R v Cunningham [2006] NSWCCA 176

R v Diez [2020] NSWDC 351

R v Ellis (1986) 6 NSWLR 603

R v Engert (1995) 84 A Crim R 67

R v Holder; R v Johnstone (1983) 3 NSWLR 245

R v Solomon [2005] NSWCCA 158

R v SS [2021] NSWCCA 56

R v Van Ryn [2016] NSWCCA 1

R v Wilkinson (No. 5) [2009] NSWSC 432

Siganto v The Queen (1998) 194 CLR 565

Stuart v R [2012] NSWCCA 183

Tapania v R [2018] NSWCCA 247

The Queen v De Simoni (1981) 147 CLR 383

Zahorsky v R [2013] NSWCCA 268

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Zhifan Song (Offender)

Representation:

Counsel:
K. Nightingale (Crown)
A. Cook (Offender)

File Number(s):

18/331375

Publication restriction:

S 578A of the Crimes Act 1900 prohibits publication of any matter that would identify the victim or that is likely to lead to the identification of the victim in these proceedings.

remarks on sentence

1. The offender is to be sentenced in respect of the following charges to which he has pleaded guilty:

1. Count 1 – cause person to take intoxicating substance with intent to commit indictable offence (indecent assault), pursuant to s 38(b) of the Crimes Act 1900. The maximum penalty for this offence is 25 years imprisonment.

2. Count 2 – sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is a standard non-parole period prescribed of 7 years imprisonment.

2. Both offences occurred on 28 October 2018.

3. The offender has asked to be taken into account the following matters on Forms 1:

1. Form 1A attached to Count 1 – offence of cause person to take intoxicating substance with intent to commit indictable offence (indecent assault) pursuant to s 38(b) of the Crimes Act 1900. The maximum penalty prescribed is 25 years imprisonment and there is no standard non-parole period. This offence occurred on 31 January 2018.

2. Form 1B attached to Count 2 – offence of aggravated indecent assault – victim under authority of the offender, pursuant to s 61M(1) of the Crimes Act 1900. The maximum penalty prescribed is 7 years imprisonment, and there is a standard non-parole period of 5 years imprisonment. This offence occurred on 28 October 2018.

4. The offender has admitted his guilt in respect of the two offences subject to the Forms 1, and has asked that both be taken into account on sentence.

5. Following his arrest on 29 October 2018, the offender spent 54 days in custody before being released to bail.

6. The matter had a troubled procedural history, with three separate trial dates being vacated for various reasons. It was eventually listed for trial on 30 August 2021 when the offender entered his pleas of guilty. It is common ground that the offender is entitled to a 5% utilitarian discount for his pleas of guilty pursuant to s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (‘CSPA’).

The sentence hearing

7. The sentence hearing took place on 4 February 2022. The Crown Sentence Summary became Exhibit A and it included an agreed statement of facts which may be summarised as follows.

8. On 28 October 2018, the offender was aged 34 years and 5 months. He had been diagnosed with schizophrenia at age 19 years and was at the time of the offending prescribed two medications, namely, 10mg of “Zyprexa” (Olanzapine) and 1mg of “Rohypnol” (Flunitrazepam) to assist with sleep.

9. The offender owned a tutoring school known as Pegasus Academy located in Chatswood and he was the sole employee of the school. The school was split across three levels of a building with bathrooms located on Levels 1 and 2.

10. The victim, JL, had received tutoring services from the offender from 2014 to 2018. She attended the school twice weekly on Wednesday and Sunday and during exam periods would attend for a third session. Each session would typically last for a number of hours and the offender would provide the victim with a drink, being either a tea brewed at the school or a tea he had purchased. After each session, the victim would walk home.

11. At the beginning of 2018, the offender began to give the victim capsules before commencing her tutoring lesson. He told the victim that these were “nutrition products”.

12. It is an agreed fact that the offender developed a sexual interest in the victim.

13. On 31 January 2018, the victim attended the school for tutoring services. Before she arrived, the offender secreted an unknown substance into a milk tea liquid which he gave to the victim. She drank one third of the tea and started to feel dizzy and sick. The offender provided the victim with the drink containing the secreted substance with intent to indecently assault her, and he told police following his arrest that he wanted to “assault” the victim. This is the offence on Form 1A – Cause Person to Take Intoxicating Substance with Intent to Commit Indictable Offence.

14. After consuming the tea, the victim became unconscious and slept on a desk for approximately 30 minutes. The offender sent a text message to the victim’s mother to advise her that she was not feeling well and organised a taxi to take the victim home. He travelled in the taxi with the victim, during which the victim felt very uncomfortable, however he did not get out of the taxi when it stopped outside the victim’s home.

15. In October 2018, the victim was completing her HSC exams, her last examination taking place on 29 October 2018.

16. The victim was due to attend the school at 2.30pm on Sunday 28 October 2018 to prepare for her Modern History exam which was scheduled for the next day. Prior to her attending, the offender conducted the following internet searches on his mobile phone:

1. NSW+criminal+interstate

2. Can I avoid arrest by moving interstate?

3. Australia+drug+rape

17. The offender also visited the website for Sydney Criminal Lawyers and viewed pages on that website related to assault, sexual offences, aggravated sexual assault and drug offences.

18. At about 2.20pm on Sunday 28 October, the offender researched various topics concerning the provision of Rohypnol on the internet using his laptop computer. The offender searched terms including:

1. Rohypnol and time;

2. Flunitrazepam and time;

3. Blood and adult;

4. Blood and adult and volume.

19. The offender visited the following websites:

1. Drugs.com/illicit/rohypnol

2. Wikipedia.org/wiki/Date_rape_drug

3. Drugfreeworld.org/drugfacts/prescription/rohypnol

4. Recovery.org/topics/rohypnol-facts

5. Sciencedirect.com/topics/neuroscience/flunitrazepam

6. En.wikipedia.org/wiki/roofie

20. The offender cancelled another student’s appointment and there was no one else present at the school when the victim attended. They had a conversation for about 30 minutes on Level 3 of the premises, during which the victim told the offender that she had a headache. The offender gave her two Panadol paracetamol tablets which the victim took.

21. The offender gave the victim three capsules in which he had secreted rohypnol, which was taken from a bottle on a bookcase on Level 3. The capsules were of the same appearance as capsules the offender had given the victim containing health supplements during the preceding six months.

22. The offender said to the victim, “After you take the capsules we will start the lesson”. The victim said, “I don’t want to take those capsules”, to which the offender replied, “Well, we can’t start the lesson until you do.”

The victim took the three capsules with water. Each capsule contained an unknown amount of at least 6mg of rohypnol. At no time was the victim aware that the capsules contained rohypnol. This was the conduct comprised in the offence in Count 1 – cause person to take intoxicating substance with intent to commit indictable offence.

23. The victim commenced the practice examination paper and the offender left the room. The offender’s computer showed internet access at the following times:

1. Between 2.50pm and 3pm;

2. Between 3.28pm and 4pm;

3. No further activity until 1.08am on 29 October 2018.

24. Within a short time, the victim began to feel dizzy and confused. She walked downstairs to Level 1 and used the bathroom. She felt unstable and confused when walking back upstairs, however, she continued the practice examination. A short time thereafter, the victim got up to walk downstairs to use the bathroom. The victim was stopped by the offender on the staircase between Levels 2 and 3. The victim was very weak and the offender loosely held on to her. He moved the victim to a location near the window on Level 2. The offender held the victim and pushed her shoulder down onto the carpet. The victim lay flat on the carpet between the window, two desks and the shelf to the right of the staircase. The victim’s head was turned towards the window, away from the offender.

25. The offender undressed the victim so that she was completely naked. The offender kissed the victim on her lips, chest, nipples and ears. The offender touched the victim on the outside of her genitalia with his hands. That conduct comprised the offence on Form 1B of Aggravated Indecent Assault – Victim Under Authority of Offender. The victim tried to push the offender away but was unable to control her body or understand what was happening. Shortly thereafter the victim lost consciousness and cannot recall what occurred due to the effects of the drugs she had consumed.

26. The offender undressed himself so that he was also completely naked. He lay on top of the victim and rubbed his penis inside the victim’s vulva. His penis penetrated the victim’s genitalia and this conduct comprised Count 2, sexual intercourse without consent.

27. The offender told police later in his interview that the entire incident lasted approximately one and a half hours. The offender redressed the victim and after some time she regained consciousness and walked downstairs to the bathroom on Level 1. After ten minutes, the offender helped the victim walk back to Level 3. The offender then gave the victim a knife and said to her, “… Please kill me now.”

The victim responded, “It’s not that serious that I need to kill you.”

The offender said, “If you don’t destroy me now, wait until I achieve more, then, then destroy me.”

28. The offender then gave the victim a glass of water.

29. Some time before 7.45pm, the victim left the school to walk home. She called her mother and her mother noticed that her speech was slurred. She asked if she was O.K and the victim replied, “I don’t know.”

30. CCTV footage revealed that the victim fell to the ground on two occasions with bystanders assisting her. Her mother tried to call her at 8.12pm but the call was diverted to her voicemail. At 8.20pm, the victim’s mother attempted to call the offender, but the call was not answered. At 8.23pm, the victim’s mother again attempted to call the offender. The call connected but the offender did not say anything. She tried to call her daughter again at 8.25pm without success. She then left home to look for the victim and shortly thereafter the victim phoned her and said, “I’m outside the primary school, I just fell to the ground”. Her mother located the victim near the primary school. She was on the ground and struggling to stand up. When asked what happened to her, the victim said, “I don’t know, my knees are hurting”.

31. The victim told her mother that she had drunk tea at the offender’s school and also taken three vitamin supplements. She had then started working on a mock test but, “felt too dizzy to continue halfway through”. She told her mother that she did not know what happened after that.

32. At 8.31pm and 8.36pm, the victim’s mother again attempted to call the offender but both calls were not answered. At 8.46pm, the victim called the offender, who answered the phone. The victim’s mother then asked the offender what he had given her daughter and he told her that he had given her essence of white fungi. The victim’s mother made further attempts to contact the offender; however, he did not answer any calls.

33. At home, the victim’s mother observed scratches and grazes on the victim’s right cheek, as well as bruises on both of her knees. She observed that the victim was not wearing a bra, that the buttons on her shirt were not done up correctly and that her sweater and underwear were both on back to front. The victim’s bra was located in her school bag.

34. At 10pm on 28 October 2018, the offender attended his parents’ house and told them he was doing “very bad things towards a student” which were “sexual things”. He named the student.

35. At 10.59pm, the offender’s mother spoke to the victim’s mother via telephone. She apologised to the victim’s mother and told her that, “He did something to [the victim] which he shouldn’t have done, and it’s serious”. She also advised the victim’s mother that the offender would hand himself in to police.

36. Between 1am and 3am on 29 October 2018, the offender made various business and financial arrangements which allowed his parents to conduct his affairs. He attended Hornsby Police Station at 5.50am on 29 October 2018. He told the counter officer that he was attending the station to confess to crimes and when asked what that was he replied, “rape”. He was then cautioned.

37. The offender then made the following admissions which were recorded in a police notebook:

“(a)   She was my history student and I was her teacher. Last night at about 3 or 4pm I gave her some sleeping pills. She did not know she was taking them;

(b)   He gave the victim Rohypnol which he was prescribed;

(c)   He assaulted the victim by rubbing his organ (penis) on her;

(d)   He did not think he penetrated her;

(e)   He was not wearing a condom and he ejaculated on her;

(f)   The victim was half asleep and did not say anything;

(g)   He was not sure why he did this.”

38. The offender was placed under arrest and participated in an ERISP interview in which he made admissions to drugging the victim on two occasions and engaging in sexual conduct with the victim the previous day. He admitted the victim did not know about the drug he secreted in the capsules and that he knew the victim was not consenting. He admitted he gave her six tablets of Rohypnol by inserting them inside the capsules he had given to the victim. He expected that amount of the drug to completely paralyse her and told police the victim couldn’t stand up and was falling over.

39. The offender did not tell the police about the research he had conducted on the internet prior to the incident. He did, however, tell the police about his mental health generally and at the time of the offending. He also told police that the victim’s mother had told him not to give the victim anything after the previous occasion he drugged the victim.

40. Police attended the school premises and seized a number of items. On the same day, police obtained the victim’s bra and underwear worn on 28 October 2018. The victim underwent a sexual assault identification kit at hospital, which identified no injuries and revealed the victim’s hymen to be intact.

41. Vaginal swabs obtained during the SAIK examination were sent for analysis and semen was detected on the low vaginal swab vulval smear and the external labia smear. A screening test for blood was conducted on the low vaginal swab and returned a positive result. A DNA profile the same as the DNA profile of the offender was recovered on the low vaginal swab taken from the victim. Similar matches occurred on the victim’s underwear and bra and a towel seized at the school.

42. Testing from blood and urine samples obtained from the victim on 29 October 2018 reveal that 0.05mg per litre of benzodiazepines and 0.01mg per litre of Flunitrazepam was detected in the victim’s blood.

43. Police also located three health supplement bottles on a book case on the third floor of the school. The bottles contained capsules containing a light brown powder. None of the capsules contained Flunitrazepam tablets.

44. Ex A also contained two reports from Dr K Eagle, forensic psychiatrist, dated 20 November 2020 and 29 October 2021. These reports addressed initially the question whether the accused had a defence of mental illness available to him at the time of the offending, and alternatively, the contribution, if any, of the accused’s mental illness diagnosis to his offending conduct. This medical evidence, together with medical evidence relied on by the accused at the sentence hearing, is addressed separately below.

45. Ex B was a Victim Impact Statement (‘VIS’) dated 2 February 2022 outlining the impact on the victim of the offender’s criminal conduct. The VIS is referred to below.

The offender’s evidence

46. The offender tendered, without objection, a bundle of documents which became Ex 1.1-1.12. It included two reports from Dr Richard Furst, forensic psychiatrist, together with five reports from Dr Z Miao, consultant psychiatrist who has treated the offender since his release on bail. This medical evidence is addressed separately below.

47. Exhibit 1.8 was a letter from the offender to the court dated 22 January 2022, in which he apologised to the victim and accepted responsibility for his criminal conduct, stating that he understood this was a very serious crime. The offender set out his background and employment. He had completed his HSC in 2002 and a Bachelor degree from the University of Auckland in 2007. He completed postgraduate studies at the University of Melbourne in 2009 and attained a PHD in 2016 from the University of New South Wales. The offender had been employed as a teaching assistant from 2009 to 2015 at the University of Melbourne and the University of New South Wales. He worked as a secondary teacher at a public school in Sydney in 2015 to 2016 and commenced his own tutoring business in 2017.

48. The offender also set out his history of mental illness. He had been diagnosed with schizophrenia at age 19 and its symptoms had a significant impact on his ability to study as well as to socialise. He suffered auditory hallucinations, hearing voices that were not real, as well as experiencing delusions that were not real. He had attempted suicide twice during his undergraduate years and as a result of suffering his mental illness, it took him six years to complete his PHD instead of the usual three years.

49. The offender stated that he left his previous position as a school teacher due to deterioration in his mental health. Since early 2018, his mental health had further deteriorated and he suffered increased auditory hallucinations and delusions which continued to the time of the offence. His mental health had significantly improved under the care of Dr Miao who he had been receiving treatment from since his release on bail.

50. The offender stated that he was devastated that he would no longer be able to work in education. He stated that he had been overwhelmed with guilt and sadness. He also stated his parents needed assistance from him from time to time and would suffer significant difficulties in daily life without his care.

46. The offender described his previous time in custody in 2018, stating that he had been a model inmate. He found the conditions in custody were devastating, there being minimal medical assistance as a result of which his mental illness significantly worsened.

47. The offender stated that he intended to study business and engineering with the aim of becoming an engineer in the solar energy industry. He accepted that he would be placed in custody and stated that he would use his time in custody “in dedication of improving [himself] before [he] is released”.

48. Exhibit 1.9 was a letter from the offender’s parents in which they described the offender as a kind hearted person who had never been in trouble before. He had suffered schizophrenia for many years but kept working hard and was a high achiever in school and university. They stated that the offender consistently expressed deep remorse for his criminal conduct and took full responsibility for it.

49. The offender’s parents set out his academic achievements and various scholarships and awards he had received. Whilst his father suffered from a chronic illness, they would continue to provide him with financial and emotional support so that he can reintegrate into society upon his release from custody. They expressed confidence that he will comply with his medication and treatment, and will not reoffend.

50. Exhibit 1.10 was a letter from the offender’s aunt and uncle who described the offender as “a kind and enthusiastic person who has always remained very close to his cousins.” They had observed the offender to be enthusiastic about inspiring his students to achieve their best academically and personally. They stated that they felt the offences were out of character for him and they also stated that he had expressed great remorse for his actions and the pain and suffering caused to the victim. They described him as being consumed by his guilt and acknowledged the detrimental impact that his actions have caused to the victim, her family and his own family. The offender’s aunt and uncle also stated that the offender had told them recently that his mental health had significantly improved under the care of Dr Miao, and that he was having no symptoms of auditory hallucination and delusions.

51. Ex 1.11 was a bundle of letters of thanks from former pupils of the offender.

52. Ex 1.12 comprised certificates as to the offender’s academic qualifications together with information relating to his scholarship status, and correspondence relating to his application to attend a national training school in theoretical chemistry at Oxford University in 2012.

53. The offender also relied on an affidavit of his solicitor, Mr A. Roberts, affirmed on 28 January 2022 which set out the complex procedural history leading to the entry of the offender’s pleas of guilty on 30 August 2021, together with statistics published by the NSW Health media relating to new cases of COVID-19 in correctional centres since 23 January 2022, together with copies of reports of Professor Butler and Dr Andrew Ellis, consultant and forensic psychiatrist, published on the NSW Legal Aid website relating to the impact of the COVID-19 pandemic on the prison population. There was no issue that the COVID-19 pandemic has made prison sentences more onerous for inmates because of the need for lockdowns, the limited access to training and education programs, a lack of visitation, some limitations on access to medical care and the impact on inmates’ mental health.

The medical expert opinion evidence

59. The Crown relied on two reports from Dr K. Eagle dated 20 November 2020 and 29 October 2021. Dr Eagle was asked to address the offender’s diagnosis of mental illness, his mental state at and about the time of the alleged offending, whether the offender could be dissembling about experiencing auditory command hallucinations prior to the commission of the alleged offences and whether he had a defence of mental illness available to him. She was also asked to comment on a report of Dr Allnutt, which was not in evidence, but clearly related to the question of whether the offender had a defence of mental illness available to him. Given the pleas of guilty, following a complex procedural history, that is not an issue relevant to sentencing.

60. The offender did not consent to a psychiatric assessment for the purpose of Dr Eagle’s report. She did, however, provide a detailed summary of the offender’s past psychiatric history and a summary of clinical records obtained from Royal North Shore Hospital, the Hills Clinic Hornsby, Justice Health, Hornsby Local Health District Medical Records, the St Leonards Clinic, Hornsby Medical Centre and Hornsby Foundation Medical Centre. Dr Eagle also provided a detailed summary of the Crown Case Statement and evidence, including various statements in the ERISP interview of the accused and other police evidence.

61. Dr Eagle confirmed the offender’s diagnosis of Schizophrenia Paranoid Type, which he has suffered since 2003. His illness had been characterised by relapses of psychosis causing delusions and hallucinations, negative symptoms involving social withdrawal, notwithstanding his high functional level academically. The offender’s report that he had not been compliant with his antipsychotic medication prior to the offending conduct was consistent with a deterioration in his mental state at the time of the offending. Dr Eagle was of the view that it was unlikely the offender was fabricating his experience of auditory hallucinations but that he may be exaggerating the impact of them on his thinking and behaviour. Ultimately, she opined that at the time of the offending, “the offender was able to reason, and in fact did reason, with a moderate degree of sense and composure as to the moral wrongfulness of his actions, despite the presence of auditory hallucinations.”

62. In her second report dated 29 October 2021, Dr Eagle was asked to address inter alia whether the offender’s mental illness contributed to the commission of the offences on 28 October 2018, and if so, how and to what degree. She was qualified with the Agreed Statement of Facts and noted that her opinion was based on the documentation provided to her without the benefit of a clinical psychiatric assessment.

63. Dr Eagle noted that the offender had never required an acute in-patient psychiatric treatment for his illness and had maintained a high level of vocational and academic function despite his illness. She assessed him on the Static-99R actuarial risk assessment as being an average risk of recidivism.

64. Dr Eagle acknowledged the limitation on her ability to form a reliable opinion regarding the degree of any contribution of his illness to the offending in the absence of a clinical assessment. Having regard to the degree of planning involved, she opined that his actions appeared “purposeful and goal directed”. His motive appeared to be to engage in sexual activity with the victim. Further, there was no information to suggest that the offender’s mental illness impacted on his ability to control his sexual interest in the victim.

65. Dr Eagle opined that mental illness and mental disorders are common in the prison population. Given the progress since the offending in his treatment and assuming that he received ongoing antipsychotic treatment, she opined “his mental illness would appear to be unlikely to make a custodial sentence more onerous than the average offender.”

The oral evidence of Dr Eagle

66. Dr Eagle gave evidence in chief that the offender had been prescribed 1mg of Rohypnol to be taken before bed. It was a Schedule 8 drug with a short half-life, meaning rapid onset. It was also very difficult to access on prescription, as a prescription for a period of over two months required approval from NSW Health.

67. Dr Eagle was asked the effect of taking 6mg of Rohypnol and gave evidence that tolerance depended on how naïve the person was to the drug; however, it was likely to have a profound sedative effect.

68. Dr Eagle gave evidence that she had reviewed the notes of the offender’s treating psychiatrist Dr Schur and noted that in June 2018, he had been prescribed the antipsychotic Olanzapine. The dose was varied in June and September when it was increased to 10mg, which was a therapeutic dose. Pharmacy records she had reviewed also revealed that the offender had been dispensed the medication between July and September 2018.

69. A review of the Justice Health records included the offender giving a history of his prescriptions between July and September 2018. It included the offender giving a history shortly after his arrest of taking both antipsychotics and sleeping pills prior to the offending conduct. On 6 November 2018, he denied being noncompliant with his medication regime, although he was sometimes, when he was busy. Whilst in custody, he was provided Olanzapine daily until his release. When examined by Dr White just prior to his release, he had presented well with good insight and it was noted that he was determined to comply with his bail conditions. The Hornsby Medical Centre records showed no significant symptoms of his schizophrenia following his release from custody.

70. In cross examination, Dr Eagle conceded that she had been unable to clinically examine the offender prior to expressing the opinions set out in each of her reports. Dr Eagle was cross examined on the clinical records of Dr Schur, which showed that in July 2018, the offender was suffering persistent psychotic symptoms and was prescribed Olanzapine 5mg which was an extremely low dose. That was increased to 7.5mg on 25 July 2018, when the offender reported ongoing audio and visual hallucinations and difficulty sleeping. She agreed that on 5 September 2018 when the medication was increased, he reported symptoms on and off but improving.

71. Dr Eagle agreed that whilst the offender had been off his medications for a number of years prior to mid-2018, he was still able to function. Being noncompliant put him at risk of his symptoms including hallucinations becoming worse. She agreed that Dr Schur had noted that the offender had attended randomly and was often noncompliant with his medication regime.

72. Dr Eagle gave evidence that she could not see how auditory hallucinations suffered by the offender could cause him to research the internet or to procure rohypnol. Those matters were not sufficiently related to his mental illness. She conceded that there may have been some diminution of his self-control because of the auditory hallucinations but there was no other real nexus to his symptoms. She did accept that his auditory and visual hallucinations were unlikely to be fabricated as his reporting of them was consistent.

73. Dr Eagle also accepted that it was likely that the offender was experiencing symptoms at the time of the offending and had a deficit in his functioning in reason. However, he was capable of knowing the wrongfulness of his conduct despite his symptoms of psychosis. She accepted those symptoms were fluctuating at the time of the offences.

74. On the question as to whether a custodial sentence would be more onerous for him, Dr Eagle gave evidence that the offender had previously accessed treatment for his mental illness on a daily basis and his condition had improved whilst he was in custody. In fact he had told Dr Barrot that custody was not as bad as he thought it would be. Whilst she conceded that he would be better treated in the community, she accepted that her opinion expressed above was prefaced on him having access to treatment, both medication and therapy whilst in custody. She agreed that due to the COVID-19 pandemic, custody for the offender would be more onerous in the event that he was left without access to his medications.

75. In re-examination, Dr Eagle confirmed that whilst there may be some consistency in the type of hallucinations suffered by a person with schizophrenia, they were likely to be more heightened during acute relapses. Dr Eagle was of the opinion that during his ERISP interview, the offender did not demonstrate any acute mental illness symptoms. He didn’t appear to be distracted, he concentrated and his attention was intact. There were no signs that he was acutely unwell. She adhered to her opinion that he was relatively stable at the time of the offence.

76. Dr Eagle was not aware of how Corrective Services dealt with mental health issues for inmates and was not aware of them not receiving their medication.

The reports of Dr R. Furst

77. Dr Furst provided two reports dated 9 July 2021 and 7 November 2021. His first report was directed as to whether at the time of the offending on 28 October 2018 the offender satisfied the defence of mental illness outlined in s 28 of the Mental Health Impairment and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Dr Furst was qualified with the relevant forensic and medical evidence and took a complete psychiatric history following which he clinically examined the offender. He confirmed the longstanding diagnosis of schizophrenia. He opined that the offender was aware at the time of the offending of the wrongfulness of his actions and did not have a mental illness defence or a defence of mental health impairment available to him, notwithstanding that he may well have been experiencing auditory hallucinations before and around the time of the commission of the offences. The symptoms he was suffering were relevant factors on sentence in that the voices were either encouraging him to act in the manner alleged and/or that he was having more difficulty resisting his own sexual urges towards the victim than he otherwise would have by virtue of his psychotic symptoms.

78. Dr Furst again examined the offender on 12 October 2021 for the purpose of his second report dated 7 November 2021. At that time, there were no signs of psychosis and his mood was reasonably stable, notwithstanding understandable anxiety about the legal proceedings.

79. Dr Furst described the offender as presenting as a “shy and incompetent loner, with no evidence of sexual deviance or sexual preoccupation.” He appeared to have social and relational deficits, the effect of which, combined with his schizophrenic illness and autistic traits were loneliness, social isolation and a lack of sexual outlets. Dr Furst suggested that his social isolation and loneliness were factors causally related to the offending. Dr Furst rehearsed his opinion previously stated above that the auditory hallucinations encouraged the offender to act in the manner in which he did towards the victim and resulted in him having more difficulty resisting his own sexual urges towards her.

80. Dr Furst further opined that the offender had a “low loading of dynamic/variable risk factors in relation to sexual risk/reoffending.” His lack of any prior offences, his attitude towards his offending, the absence of any addiction issues and his positive attitudes towards treatment also meant that his risk of recidivism by way of general/non-sexual offending would also be low.

81. On the issue of the impact of a custodial sentence on the offender, Dr Furst opined that the offender was particularly vulnerable to violence, threats and intimidation by virtue of his schizophrenic illness and his underlying personality, i.e. being somewhat of a loner. He therefore opined that the offender would experience greater levels of anxiety in custody and a high risk of relapse into psychosis than if he was managed in the community. He recommended the offender be placed under the care of psychiatrists and mental health nurses for the ongoing management of his schizophrenia and to continue his current medications. He made further recommendations for ongoing treatment upon his release on parole to be placed under the care of his GP to coordinate a mental health care plan and to remain under the care of Dr Miao, consultant psychiatrist.

The oral evidence of Dr Furst

82. Dr Furst in his evidence in chief adhered to his opinion that the offending conduct was not driven by the offender’s mental illness, but his general functional impairment associated with schizophrenia was relevant to the offending. He confirmed his opinion set out above that the auditory hallucinations he was hearing were encouraging him to act in the manner alleged and/or that he was having more difficulty resisting his own sexual urges towards the victim. He described this as a constellation of factors which made it difficult for the offender to resist, including his loneliness and social isolation. Dr Furst also confirmed that there were two parts to his vulnerability as a prison inmate, due to the impact of COVID-19. Namely, the effect of prolonged lockdowns on his mental health and the fact that the presence of violence, threats and intimidation in custody, which were commonplace, made him more vulnerable.

83. In cross-examination, Dr Furst agreed that the diagnosis of schizophrenia for the offender was in a less severe form of that illness compared to those who required hospitalisation. Whilst it was towards the lower end of the spectrum of severity, it was of long duration.

84. Dr Furst did not accept that the offender had been treated with, “very very low doses of medication to relieve his symptoms”.

85. It was put to Dr Furst that the offender had exhibited high levels of functionality in the community, including when he was un-medicated. Dr Furst gave evidence that there were deficits in his social outlets. He had taken longer to complete his university studies and rather than being high-functioning, he demonstrated an intellectual capacity in science and maths. He agreed that the offender had lived independently prior to the offending, had operated a business and managed it, and taught a not insignificant number of students. It was suggested that this indicated a highly functional individual, however, Dr Furst gave evidence that that depended on the definition of “highly functional”. The business the offender operated was not complex and he received assistance from his family. On that basis, he did not accept that the offender was a highly functioning individual prior to the offending conduct. He did accept that the offender had, over an extended period, managed to disregard auditory hallucinations, and on prior occasions had been able to resist command hallucinations.

86. Dr Furst agreed that the reports of the treating psychiatrist between June and September 2018 confirmed that the offender’s mental health condition was improving.

87. Whilst the offender had admitted a sexual interest in the victim, the facts concerning the Form 1 offence which occurred on 31 January 2018 of causing the victim to take an intoxicating substance and the fact that he did not assault her on that occasion meant that he was capable of resisting the auditory hallucinations or his sexual urge. Dr Furst had understood that he had been completely un-medicated at that time, having stopped being compliant with his medication regime towards the end of 2017.

88. Notwithstanding that he had been noncompliant for a number of years, he was receiving anti-psychotic medication from July 2018.

89. A number of matters were put to Dr Furst concerning the offender’s post-offending treatment and the fact that he had reported that his experience in custody before he was released on bail was not as bad as he thought it would be. It was also put to Dr Furst that the extensive planning involved in the offending suggested that he had presence of mind, it being quite sophisticated. Dr Furst acknowledged there was some planning, but not that it was sophisticated. In fact, he gave evidence that there was “a lot of ambivalence” involved.

90. Dr Furst accepted that if the offender did have auditory hallucinations, they were not causative in his commission of the offences. Notwithstanding that, if they were present they may have contributed to the offending as a related issue. He opined that it was impossible to know either way what was in his mind at the time of the offending.

82. Finally, Dr Furst was aware that prisoners in mental health PODS in custody have experienced difficulty during the COVID-19 pandemic, however, conditions in some of the PODS have changed during that time.

The reports of Dr Z Miao

92. The offender has been under the care of Dr Miao, consultant psychiatrist, since March 2019, when Dr Miao provided five reports dated 19 March 2019, 19 September 2019, 12 April 2020, 15 June 2021 and 1 October 2021. Those reports set out in detail the offender’s psychiatric history and his mental state examination on each occasion that he saw Dr Miao, together with Dr Miao’s treatment plan and recommendations.

93. The reports confirmed that the offender has responded well to treatment, has minimal auditory hallucinations with no visual hallucination or delusions and is stable and functioning better. Dr Miao has seen the offender on 23 occasions up until 15 September 2021 and his medication regime has been augmented with anti-psychotic and anti-depressive medications. The offender has been compliant with the treatment provided, has made significant improvement and Dr Miao reported that the offender and his family believe his mental state has been the best since he was first diagnosed with schizophrenia in 2003.

The Crown submissions

94. The Crown relied on a detailed written outline of submissions which set out the procedural history. In relation to the objective seriousness of the offending in Count 1, the Crown submitted that the court would consider the nature of the offence which the offender intended to commit when he administered the drug, namely, a proscribed sexual offence on a young woman in his business premises, which the Crown submitted significantly increased the objective seriousness of the offending. The following features would be taken into account when determining the objective seriousness of the offence:

“a.   The nature of the intoxicating substance

b.   The amount of the intoxicating substance administered

c.    The youth of the victim

d.    The age difference between the victim and the offender

e.   The relationship of trust between the offender, the victim and her family

f.    The location of the offence – in the offender’s business premises where the victim attended to receive the offender’s tutoring services

g.   The victim refusing to take the substance

h.   The offender used the victim’s desire to achieve a good result in her HSC exams to coerce her to take the substance

i.   The administration of the substance prevented the victim from being able to complete her HSC exams and affected her tertiary education.”

95. The Crown referred to the judgment of Johnson J in R v Wilkinson (No. 5) [2009] NSWSC 432 at [61] in respect of the care to be taken in considering post-offence events into account when assessing the objective seriousness of a crime. There, his Honour stated that a sentencing Judge should take into account not only the conduct which actually constitutes a crime, but also the surrounding circumstances directly related to that crime. Those circumstances are to be properly regarded as circumstances of aggravation or mitigation.

96. The Crown submitted that allowing the victim to leave his business premises in a very vulnerable state exposed her to a considerable degree of risk as she was not capable of looking after herself as a result of the drugs administered by the offender. This was a relevant consideration in assessing the objective seriousness of the offending. Further, Count 1 was not an isolated incident as the offender had previously drugged the victim in similar circumstances on 31 January 2018.

97. In respect of Count 2, the Crown submitted that the sexual intercourse without consent was a serious offence and the objective seriousness of the offending here was between the mid and high end of the range of objective seriousness. The victim was young, namely, 18 years old, and had been a student of the offender for many years. The offender had the trust of the victim and her mother and the offending occurred over a protracted period of time, namely, one and a half hours. The offender did not use a condom and therefore exposed the victim to the risk of sexually transmitted diseases and pregnancy. The offender’s conduct in drugging the victim to ensure that she was helpless to resist his sexual conduct demonstrated organised behaviour and planning.

98. The Crown referred to Irmak v R (supra) at [314] to submit that the giving of drugs to a victim for the purposes of forcing sex upon her was a significantly aggravating feature.

99. The Crown submitted that the court would take into account the degree of planning, the abuse of the position of trust and the vulnerability of the victim immediately after the offences, in assessing the objective seriousness of the offending.

100. The planning undertaken by the offender involved the research he conducted online which is set out above and his cancellation of another student’s tutoring session to ensure the victim was alone in the premises.

101. The Crown submitted that his abuse of a position of trust was an aggravating feature pursuant to s 21A(2)(k) of the CSPA. He had been the victim’s tutor for a period of four years since she was 14 years old. The offender was 16 years older than the victim and was trusted not only by the victim but by her mother.

102. The Crown submitted that the mental health of the offender was relevant in the manner set out by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] as explained in Korovou v R [2021] NSWCCA 28 at [66]-[67].

103. The Crown acknowledged the offender’s mental health condition at the time of the offences, however, the degree to which it contributed to the commission of the offences was a matter to be determined according to the court’s assessment of the medical evidence outlined above. In assessing that contribution, the Crown submitted that it was necessary to consider the following conduct:

“a.   His sexual interest in the victim;

b.    His conduct on 31 January 2018;

c.    His conduct prior to the commission of the offences on 28 October 2018, including his internet searches, the secreting of the intoxicating substance, cancelling the attendance of another student so he was alone with the victim;

d.   His request to the victim to stab him with a knife;

e.   His admissions and actions after the commission of the offences;

f.   Conduct of his business affairs.”

104. The Crown submitted that these matters demonstrated a degree of planning which demonstrated a capacity to engage in rational thought and sustain a course of conduct. It was submitted that a degree of planning showed that the offender’s mental illness did not momentarily reduce his ability to comprehend the nature and seriousness of his conduct. Thus it was submitted the offender’s mental illness did not play a significant role in the commission of the offences.

105. Further, the offender’s conduct after the commission of the offences established that he was aware of the nature and seriousness of his criminal conduct. That conduct involved the following:

“a.   the offender dressed the victim after the commission of the offences;

b.   immediately after committing the offences the Offender asked the victim to stab him;

c.   the offender did not answer telephone calls made by the victim’s mother;

d.   the offender answered one of the victim’s mothers telephone calls and lied to her about what he had given the victim;

e.   within hours of the commission of the offences, the offender admitted to his parents that he had done “very bad things” of a sexual nature to the victim;

f.   between 1am and 3am the offender drafted a number of documents and made arrangements which would allow his parents to conduct his business affairs whilst he was in custody;

g.   at 5.50am the offender attended Hornsby Police Station and admitted he had “raped” the victim and described in some detail what he had done, including drugging the victim;

h.    the offender participated in a recorded interview with police in which he admitted in some detail the commission of the offences against the victim, including:

i.   drugging the victim by secreting sleeping pills in capsules;

ii.   providing her with so many sleeping pills he knew it would paralyse her;

iii.   knowing that the victim did not consent to any sexual contact;

iv.   the victim was so under the influence of the drug she was falling over; and

v.   remembered that the victim’s mother had told him not to give the victim anything.

i.   the offender did not tell the police that he had researched the effects of the drug and the amount of the drug to give to the victim to incapacitate her.”

106. The Crown submitted the court would accept the opinion of Dr Eagle that the offender was able to anticipate the long term legal and moral consequences of his actions given the legal research conducted by him before the commission of the offences, his responses in the ERISP interview, his lie to the victim’s mother and his actions in putting his business affairs in order. Further, Dr Eagle stated there was no evidence that the offender’s mental illness impacted his ability to control his sexual interest in the victim.

107. With respect to mitigating factors, the Crown conceded the offender was entitled to a 5% utilitarian discount in respect of his plea of guilty. The Crown referred to s 23 of the CSPA in respect of any further discount pursuant to the principle in R v SS [2021] NSWCCA 56 at [45] to [65], known as an “Ellis” discount. This related to admissions made by the offender which revealed to investigating police an aspect of the offending not known to them. Notwithstanding those admissions, the Crown submitted that the offender did not:

“a.   inform the police about the research he had conducted prior to the offences;

b.   admit to engaging in penetrative sexual intercourse with the victim; and

c.   attempted to minimise his criminality by reference to his mental illness.”

108. The Crown submitted that the offender had achieved stability of his illness whilst on bail and the impact of his mental illness on his time in custody will therefore not be substantial. However, his personality traits and possible autism may cause him some difficulties in the custodial setting.

109. The Crown conceded the offender had expressed remorse in his letter to the court, however, it noted that he had at all times sought to use his mental illness to reduce his culpability for the offending. The Crown accepted that the offender was a person of good character with no prior convictions and that he has reasonable prospects of rehabilitation. Those prospects, it was submitted, will be largely dependent on his compliance with his treatment plan. The Crown submitted that the court would accept the opinion of Dr Eagle that he is at average risk of reoffending.

110. On the application of principles of totality and accumulation, the Crown submitted that the offences in Count 1 and Count 2 are different offences, notwithstanding that they occurred on the same day and against the same victim, they were temporally separated. The criminality of Count 1 does not and could not comprehend and reflect the criminality in Count 2. Therefore, a not inconsiderable degree of accumulation on sentence was required.

111. The Crown made submissions in reply to written submissions delivered on behalf of the offender. The Crown submitted that applications made by the offender for a Judge alone trial, which were refused, were not motivated by the offender to “facilitate the administration of justice”. The Crown further submitted that the court would not accept a submission made on behalf of the offender that the offence did not cause long-term effects for the victim. The Crown submitted this completely ignored the psychological effects of the offending on the victim as set out in her VIS. Further, the administration of Rohypnol did in fact have long-term effects, given the victim’s loss of memory of events on the afternoon and evening of 28 October 2018, her inability to sit an HSC exam on 29 October 2018, the effect on her HSC results and her tertiary education.

112. The Crown submitted that the court would not accept the offender’s submission that the fact that a prescription drug, i.e. Rohypnol, was used diminishes the objective seriousness of the offence. This was a very powerful drug and the offender gave the victim six tablets whereas his script was to take one tablet only. The offender must have known that he could have exposed the victim to significant medical risk.

113. The Crown further submitted that the submission made on behalf of the offender relating to the state of the victim’s hymen upon examination was utterly irrelevant to the assessment of the objective seriousness of the offence. Further, the absence of violence or threats of violence to obtain the victim’s compliance did not affect the assessment of objective seriousness of the offending. Those features would elevate the offending into a different category of seriousness, relying on Faehringer v R [2017] NSWCCA 248 at [49].

114. Whilst the Crown conceded that the offender did not groom the victim in a sexual sense, he did use a pattern of providing the victim with health supplements to disguise the intoxicating substance he had secreted inside the capsules to ensure the victim took the intoxicating substance.

115. The Crown further submitted that the offences did not form part of a single episode of criminality but were distinct offences which were temporally separated by a significant amount of time.

The Crown’s oral submissions

116. In her oral submissions, the Crown addressed the procedural delay between a plea offer at a call-over in April 2020 until a more favourable offer was accepted in 2021 and characterised the delay as contributing to the backlog of cases before the court. With respect to the offender’s hardship in custody, the Crown noted that the offender had told his treating doctor that his experience in custody previously was not as bad as he thought it would be. It was submitted there would be no greater level of anxiety given that his schizophrenia was now well controlled and that he was compliant with his medication.

117. The Crown submitted that the court would not accept, or place no weight on self-serving statements of the offender contained in his letter to the court. This related to his custody at Surry Hills Police Station between 29 October and 2 November 2018. Further, the Justice Health notes indicated that he had been examined by a psychiatrist at Surry Hills Police Station, that he had been regularly reviewed and given daily medication whilst in custody. The court would therefore be cautious in accepting his letter of apology.

118. The Crown submitted that the court would accept the opinions of Dr Eagle that the offender’s mental health condition was of a less serious type, with which Dr Furst agreed. The court would find that he had been a highly functioning individual with high academic achievement, living independently and running a successful business.

119. The Crown submitted that it was extremely relevant that the offender had planned this serious offending. This was relevant to both general and specific deterrence and relevant to his moral culpability for his offending. In January 2018, he had resisted the sexual interest in the victim and given that he had been in treatment for his schizophrenia for a period of six months at the time of the offending in October, this was a significant matter for the court to take into account.

120. The Crown referred to comparative cases referred to the court by the offender, all of which involved isolated incidents. Here, there had been the previous offence on the Form 1 on 31 January 2018. In other cases, there had been no sexual assault, or no evidence of planning or no premeditation which distinguished them from the current offending.

The offender’s submissions

121. Counsel for the offender also relied on a thorough and detailed written outline of submissions. It was conceded that pursuant to s 25D(2)(c) of the CSPA, the offender is entitled to a discount of 5%, however, it was further submitted that the offender had handed himself into police, had confessed his crimes and made timely admissions in his ERISP as well as raising his mental health. Whether he had a defence of mental illness remained a live issue and despite the plea being late, there was evidence of genuine remorse from the offender. The offender referred to Siganto v The Queen (1998) 194 CLR 565 at [22] and Hoskins v R [2020] NSWCCA 18 at [8] to submit that the plea reflects only the utilitarian value and to take into account remorse and contrition involves no element of double counting. In this case, the young victim and her family had been spared the inevitably unpleasant experience of attending court, giving evidence in a trial and being cross-examined. It was thus submitted that the pleas were significant and a discount beyond 5% would be extended.

122. Counsel submitted that the unsuccessful applications made by the offender for Judge alone trials and the pleas made during the COVID-19 pandemic were attempts to facilitate the administration of justice and therefore attracted a discount, referring to R v Diez [2020] NSWDC 351 at [37] and Chenhall v R [2021] VSCA 175.

123. Counsel submitted that the admissions made by the offender in his ERISP were particularly significant given the victim could not recall what happened. Those admissions amounted to evidence of intent for the section 38 offence, evidence that he had given the victim a substance on an earlier date with thoughts of assaulting her, and also the nature of the intimate acts that occurred in respect of Count 2, pursuant to R v Ellis (1986) 6 NSWLR 603. It was submitted that the disclosure of otherwise unknown evidence merits a significant added element of leniency in sentencing. It was however recognised that such leniency may hinge upon whether police were aware of the offending, or were likely to detect it. Notwithstanding that, the court should ameliorate the penalty for the offender confessing criminality that may well not have proceeded on the current counts.

124. The offender submitted that the moral culpability for his offending should be reduced due to his schizophrenia which would be causally linked to the offences, relying on the evidence of Dr Furst. If a finding of reduced moral culpability was made, it would be relevant to an assessment of the objective seriousness of the offending, relying on Tapania v R [2018] NSWCCA 247 at [112]. It was submitted that the court would prefer Dr Furst’s opinion to that of Dr Eagle and find that the offender’s schizophrenia did materially contribute to the offending and is a significant mitigating factor on sentence.

125. The offender submitted that the objective seriousness of the offence in Count 1 “sits somewhere just below or at the mid-range”. Relevant factors were:

“a.   The intended indictable offence was aggravated indecent assault. This offence carries a maximum penalty of seven years imprisonment. There are other more serious indictable offences.

b.   The intoxicated substance caused to be ingested was three capsules containing Rohypnol, which were given to the victim under the guise of being vitamins. This is a substance from which the victim quickly recovered. This is a substance that has not caused long-term effects.

c.   The offender obtained the Rohypnol for his own prescription for the medication.

d.   The victim was an adult, although it is conceded, she was a young adult.”

126. The offender submitted the objective seriousness of Count 2 was below mid-range, taking into account the following factors:

“a.   The definition of “sexual intercourse” involves penetration of the female genitalia to any extent. In this case the penetration was the offender rubbed his penis inside the victim’s vulva.

b.   An examination after the assault revealed that the victim’s hymen remained intact.

c.   An examination after the assault revealed no injuries or abnormalities.

d.   There is no suggestion that threats or acts of violence were involved in the offending.

e.   There is no evidence that the offender “groomed” the victim.

f.   The court could not be satisfied as to the time period in which the intercourse took place.”

127. The offender submitted that care should be taken in considering the nature of the relationship between the offender and the victim, particularly whether the victim was under the authority of the offender. As this is a circumstance of aggravation pursuant to s 61J(2)(e) of the Crimes Act 1900, having regard to such a fact would breach the principle in The Queen v De Simoni (1981) 147 CLR 383.

128. Counsel submitted that the evidence concerning the offender undertaking internet searches did not rise to the level of aggravation contemplated by s 21A(2)(n), namely, that it was part of planned or organised criminal activity.

129. Counsel submitted the following mitigating factors should be taken into account pursuant to s 21A(3):

“a. No antecedents: s 21A(3)(e)

b.   Good character: s 21A(3)(f)

c.   Unlikely to reoffend: s 21A(3)(g) for the following reasons:

i.   Dr Furst assessed the offender as being at low risk of recidivism;

ii.   The offender has shown improvements, as documented by Dr Miao, through the treatment of his mental health issues. He has been compliant with his medication and treatment regime;

iii.   Compliance with bail for a lengthy period (since 29 October 2018 – a period of well over three years);

iv.   Remorse for the offending and insight into his mental health;

v.   Support in the community from family, and their support of the offender’s mental health treatment regime.

d.   Good prospects of rehabilitation: s 21A(3)(i) for the reasons set out at (c) and additionally:

i.    His educational skill, employment history and employment prospects;

ii.   The salient lesson learned from the arrest, charge and being in custody.

e.   Remorse: s 21A(3)(i) – the offender has expressed remorse consistently from the day of the offending, including to the parents of the victim and police;

f.   Plea of guilty: s 21A(3)(k).”

130. Counsel noted the following subjective features of the offender. He is now 37 years of age and was 34 years old at the time of the offending. The offender had a stable upbringing and maintains the support of his family and intends to live with them upon his release from custody. He is of good character with no prior criminal convictions and has no drug or alcohol issues. The offender does however have significant mental health issues, being diagnosed with schizophrenia when he was 19 years old. Notwithstanding that, he has obtained significant educational achievements, albeit at a slower study rate than would otherwise have been possible.

131. Counsel for the offender relied on DPP (Cth) v De La Rosa (supra) to submit that the offender’s mental health was relevant in a number of ways to the sentencing discretion other than by reducing the offender’s moral culpability. It was submitted that it made the offender an inappropriate vehicle for general deterrence, resulting in the reduction of sentence, and that a custodial sentence may weigh more heavily on the offender. It was further submitted it may reduce or eliminate the significance of specific deterrence. Counsel also referred to Muldrock v The Queen (2011) 244 CLR 120 at [53] and R v Engert (1995) 84 A Crim R 67 at [72].

132. Counsel submitted that the court would accept Dr Furst’s opinion over that of Dr Eagle as to the offender finding his time in custody more onerous because of his mental illness.

133. It was further submitted that the court would take into account that the COVID-19 pandemic has had a significant impact on the conditions of custody and that the restrictions resulting therefrom would make the offender’s time in custody more onerous, relying on McKinnon v R [2020] NSWCCA 106 at [32] and other authorities. Counsel further submitted that the matters on the Form 1 should be taken into account on sentence and that they inform the weight to be given to personal deterrence and to retribution in determining a penalty for each offence. The matter on the Form 1A related to an earlier offence on 31 January 2018, where the substance was unknown and the offender’s intent was not acted upon. The offender was suffering the same mental health problems at the time of this offence. It was further submitted that the matter on the Form 1B related to the same victim and was committed at the same time as Counts 1 and 2, and was inherently part of the factual matrix of the offending in Count 2. It was submitted that the principle of totality inherently limits the need for any additional weight to be given to personal deterrence and retribution in those circumstances.

134. Counsel referred to the principle of totality as set out in Nguyen v R [2007] NSWCCA 14 per Howie J at [27]. It was submitted that in the event of an aggregate sentence being applied, some slight accumulation of sentence for Counts 1 and 2 would reflect the different and distinct criminality of each offence, which arose from the same episode of offending against the victim.

135. Counsel submitted that the court would find special circumstances pursuant to s 44 of the CSPA, given that this was the offender’s first time in custody, he had good prospects of rehabilitation, he had expressed remorse, he suffered a significant mental illness, he would find custodial conditions more onerous and would benefit from extended supervision in the community, particularly in light of his mental illness.

136. Counsel referred to the VIS to submit that the harm done to the victim was within what one would expect to be the usual range of harm for this sort of matter and would not serve as an aggravating factor pursuant to s 21A(2)(g). Counsel relied on R v Cunningham [2006] NSWCCA 176, R v Solomon [2005] NSWCCA 158 and Stuart v R [2012] NSWCCA 183, to submit that care needed to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm in s 21A(2)(g) of the CSPA.

137. Counsel conceded that the s 5 threshold had been crossed and there was no available alternative to a full-time custodial penalty. However, the court could take into account a number of powerful mitigating factors and not impose a crushing sentence. Counsel also provided a schedule of comparative cases.

138. In her oral submissions, counsel for the offender identified two issues which arose from the evidence of the two medical experts, Dr Eagle and Dr Furst. The first was whether the offender would find custodial conditions more onerous than the rest of the prison population and secondly, whether the offender’s mental health at the time of the offending amounted to a mitigating factor.

139. It was submitted that the court would reject the evidence of Dr Eagle and prefer that of Dr Furst. It was submitted that the mental illness suffered by the offender in October 2008 was never a primary motivating feature for his criminal conduct but it was causally linked to the offending, i.e. it was a contributing factor. The court would accept Dr Furst’s evidence that it was impossible to know what was in the mind of the offender at the time. Further, Dr Eagle had accepted that the offender had suffered auditory hallucinations consistent with his previous symptoms.

140. Counsel addressed the oral submissions made by the Crown to submit that a further discount for facilitating the administration of justice was available in accordance with R v Diez (supra). Counsel further submitted that the evidence established that at the time of the offending the offender was not fully compliant with his medication regime. Notwithstanding that between June and October 2018 his medication had increased, and he was not compliant at times when he was busy.

141. It was submitted that the planning involved for the s 38 offence was not sophisticated, rather, it involved placing the Rohypnol in capsules.

142. Counsel rehearsed her submissions about the procedural history of the matter and the late plea of guilty. It was submitted that much of the delay lay at the feet of the Crown.

143. Counsel rehearsed her submissions as to the objective seriousness of the offending, whether serious harm was caused to the victim, and whether the planning was sophisticated. Whilst there was no dispute that the offender accessed certain websites, there was no evidence of what he actually researched and therefore the court should approach that evidence with caution.

144. In response to the Crown submission that the offender did not volunteer certain information, including the internet searches he made, it was submitted the offender during his questioning in the ERISP interview had volunteered a great deal of detail, which established the offending conduct. Further, his description of the sexual assault was reflected in the agreed facts. The court would take into account that the penetration involved penetration of the vulva and not the victim’s vagina.

The Crown submissions in reply

145. In reply, the Crown submitted that it had never submitted the offender was wholly compliant with his medication regime. He was not compliant in January 2018 and yet he had been capable of disregarding his auditory hallucinations at that time. The Crown submitted the secreting of the Rohypnol in the capsules amounted to sophisticated planning for the offence and the duration of the sexual offending was one and a half hours, in accordance with the Agreed Statement of Facts. The offender had undertaken internet research 10 minutes before the commencement of that assault at 2.20pm.

146. Finally, in respect of the issue of penetration, the Crown noted that semen had been found in the low vaginal swab which identified the offender in accordance with the agreed facts.

Determination

147. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A    The purposes for which a Court may impose a sentence on an offender are as follows:

(a)    To ensure that the offender is adequately punished for the offence,

(b)   To prevent crime by deterring the offender and other persons from committing similar offences,

(c)   To protect the community from the offender,

(d)   To promote the rehabilitation of the offender,

(e)   To make the offender accountable for his or her actions,

(f)   To denounce the conduct of the offender,

(g)   To recognise the harm done to the victim of the crime and the community.”

148. Prior to assessing the objective seriousness of the offending, the medical issues raised by the evidence of Dr Eagle and Dr Furst must be resolved. Those issues are as follows. First, whether the offender’s schizophrenia materially contributed to the offending and therefore was a significant mitigating factor on sentence and secondly, whether the offender would find his custody more onerous because of his mental illness. In respect of both of those issues, I prefer the opinion of Dr Furst over that of Dr Eagle. My reasons are as follows.

149. Dr Eagle was initially qualified to provide an opinion as to whether the offender had a defence of mental illness available to him. At no time did she clinically assess the offender for either of her reports, rather relying on his clinical history as reported by others. Dr Furst had the benefit of assessing the offender clinically on two occasions, prior to each of his reports. The offender’s schizophrenia was a longstanding diagnosis for which he had not always been compliant of his medication regime. Notwithstanding that it was clearly towards the lower spectrum of severity for such a diagnosis, requiring no periods of hospitalisation, it had a serious impact on the offender’s life leading to his social isolation and deficits in his social outlets. I accept that his mental health contributed to him taking six years to complete a three year postgraduate qualification. I further accept that whilst he operated his own tutoring school, the nature of that business was not complex and he had the support of his family. He had pursued that business because he was unable to function within the traditional school structure for a teaching role. For those reasons, he could not be described as being “highly functional” but rather with his academic qualifications in maths and science, was able to function as a private tutor, notwithstanding the continuation of his symptoms and in particular auditory hallucinations. I find that his mental health contributed to him developing a sexual interest in the victim and also in his inability to resist his sexual urges towards her. In the months leading up to the offending, his medication had been increased from a low dose to a therapeutic dose by his treating doctor. I therefore find that his mental health contributed in a material way to his offending so as to be taken into account as a mitigating factor.

150. I also prefer Dr Furst’s evidence to that of Dr Eagle regarding whether the offender’s mental illness will mean his custodial sentence will be more onerous for him. Dr Eagle’s reasoning, based on her opinion that 60% of the prison population suffer mental illness of some kind, ignored the chronic nature of the offender’s illness, his vulnerability as a “loner” to violence, threats and intimidation, his risk of suffering greater levels of anxiety and the high risk of his relapse into psychosis in the event that he does not receive optimum care whilst in custody. Coupled with the current limitations on prisoners caused by the COVID-19 pandemic and the protocols adopted by Corrective Services to ensure the safety of the whole of the prison population, this must impact on the offender’s capacity to endure his incarceration.

151. In assessing the objective seriousness of the offending in Count 1, I take into account that the offending involved the offender administering six milligrams of a highly intoxicating sedative by secreting the Rohypnol in capsules, which he told the victim were “nutrition products”. The victim was 18 years of age and the offender 34 years, a considerable difference together with the fact that he was her tutor. As such, he was in a relationship of trust, not only with the victim but also with her family. Notwithstanding that the victim did not want to take the capsules, he made it conditional upon the tutoring session, and thus she had no choice. The effect of her ingestion of the drug left her unconscious and completely vulnerable to the offender for a substantial period of time, namely one and a half hours, and unable to resist his sexual misconduct. It was, having regard to all of the circumstances, and the intent to commit an indictable offence of indecent assault with a maximum penalty of 7 years imprisonment, objectively serious criminal conduct, at the high end of the mid-range for an offence pursuant to s 38(b) of the Crimes Act. The objective seriousness of the offending was therefore substantial, as was the offender’s moral culpability.

152. The offending in Count 2 was also objectively very serious offending. The offender undressed the victim and while she was unconscious, sexually assaulted her and penetrated her vagina. It is irrelevant to the assessment of objective seriousness that the victim’s hymen remained intact. It is also irrelevant that no threats or acts of violence were involved in the offending as submitted by the offender. First, given that he had drugged the victim into a state of unconsciousness, the question of threats or coercion did not arise. Secondly, a sexual assault involving penetration of the genitalia is an act which is inherently violent. Any further acts of violence may have resulted in even more, or more serious charges being laid. I accept the Crown submission that drugging a person for the purpose of forcing sex upon her is a significantly aggravating feature of this offending – see Irmak v R; Dagdanasar v R [2021] NSWCCA 178 at [315]. I also accept the Crown submission that the offender’s conduct after the commission of the offences established that he was aware of the nature and seriousness of his criminal conduct.

153. Having regard to all of the circumstances of the offending here, including the age difference between the offender and the victim, and the fact that he was her tutor, I find the offending falls within the mid-range for an offence pursuant to s 61I of the Crimes Act 1900. It was an aggravating factor in both offences that the offender abused his position of trust as the victim’s tutor pursuant to s 21A(2)(k) of the CSPA. I have, however, been careful not to double count this as an aggravating factor.

154. I find that the offending was aggravated pursuant to s 21A(2)(n) of the CSPA, in that the offender had engaged in significant planning so as to drug and assault the victim. He had inserted the Rohypnol into the capsules and had conducted a number of internet searches, both on the modus operandi he was planning and the consequences thereof. It is not to the point that the content of the researches he undertook is unknown, what is relevant is that he conducted those searches. He also ensured that no other person was present in the school premises. Whilst what occurred was unsophisticated offending, it was an aggravating factor that it involved significant planning on his behalf.

155. There are a number of mitigating factors to take into account pursuant to s 21A(3) of the CSPA. The offender has pleaded guilty and is entitled to a 5% utilitarian discount on sentence. He was also a person of good character, having never offended prior to the offence on 31 January 2018 (Form 1A offence). This is a matter which must be taken into account – see Fenner v R [2022] NSWCCA 48.

156. I find that the offender was immediately remorseful following the offences, first to the victim and then to his parents. I also accept that he is a low risk of reoffending and that he has good prospects of rehabilitation provided he maintains his treatment regime for his schizophrenia.

157. The offender is also entitled to have a lesser penalty imposed pursuant to s 23 of the CSPA, having regard to the degree to which he assisted police in the investigation of the offences. He attended voluntarily upon police the following day and made full admissions as to what occurred. This was particularly significant here as the victim had no recollection of what occurred. Whilst it must be acknowledged that he did not disclose to police the research he had conducted on the internet prior to the offending, that did not deflect from his admissions of serious criminal conduct. Having regard to the factors set out in s 23(2), particularly given the timeliness and the fact that full admissions were made, I intend to impose a lesser penalty than would otherwise had been imposed for this past assistance. Because of the circumstance of the offending and what occurred thereafter, it was inevitable that a police investigation would have led to the offender’s arrest. For that reason, the extent of the discount to be provided will be 5%, making a total of 10% utilitarian discount on sentence.

158. The assistance provided also materially reduces the need for general deterrence, as it would be directed to a small class of individuals minded to commit these crimes and then report them – see McKinley v R [2022] NSWCCA 14 at [43]. The importance of general deterrence is also diminished by the offender’s mental health contributing to the offending.

159. Specific deterrence is also of limited importance in sentencing here, given the offender’s history of mental illness, the fact that he is otherwise a person of good character and has the support of his family.

160. I do not take into account the two applications made by the offender for Judge alone trials, which were refused, as attempts by him to facilitate the course of justice, notwithstanding that they were made during a period when the COVID-19 pandemic protocols were in place in this court. Such applications are usually made for forensic reasons. However, I make it clear that the offender is not to be punished for the various delays in the procedural history of bringing this matter to sentence.

148. I have also had regard to the Victim Impact Statement (VIS) tendered by the victim in court. It sets out the impact that these offences have had on the victim’s physical and emotional state and was a poignant exposition of the extent of the trauma suffered by the victim. I note that there is no medical evidence against which to assess the VIS, however, it is a matter of common sense that the offences have had a substantial impact on the victim. I have therefore taken the VIS into account, but I make it clear that I have done so not to aggravate the offender’s moral culpability.

149. I have taken into account the subjective factors outlined above on behalf of the offender and in particular the fact that he was otherwise a person of good character, he has good prospects of rehabilitation and is a low risk of reoffending provided he complies with his treatment regime. The offender also has good family support to assist in his return to the community. I find that he will find custody more onerous than the general prison population and that his custody will be made even more onerous by the fact of the COVID-19 protocols imposed by Corrective Services.

150. As outlined above, I find that as a result of his mental health and in accordance with authority, he is not an appropriate vehicle for general deterrence.

151. I take into account the maximum penalty of 25 years for the offending in Count 1, pursuant to s 38(b) of the Crimes Act 1900. I also have regard to the maximum penalty of 14 years imprisonment for Count 2 and the standard non-parole period prescribed of 7 years imprisonment for the offence pursuant to 61I of the Crimes Act 1900. The maximum penalties for both offences, and the standard non-parole period prescribed for Count 2 are guideposts in the sentencing process.

152. Having considered all possible alternatives, no penalty other than imprisonment is appropriate for the offending here. I intend to impose an aggregate sentence pursuant to s 53A of the CSPA. So as to provide transparency in the sentencing process, I am to provide indicative sentences which in this case must take into account the matters on the Forms 1. In respect to the matter on the Form 1A, it was an offence pursuant to s 38(b) of the Crimes Act, which took place on 31 January 2018. On that occasion, the offender drugged the same victim by placing an intoxicating substance into her tea. Notwithstanding that the victim was affected by the drug, the offender resisted his sexual interest in the victim on that occasion. The offending was objectively serious but fell below the mid-range for an offence pursuant to s 38 and in the middle of the lower range for such an offence. There therefore must be some accumulation on sentence in respect of Count 1 on the Indictment.

153. The offending on Form 1B occurred on 28 October 2018 and involved the offender touching the victim on the outside of her genitalia with his hands. It was also serious offending, falling just below the mid-range for an offence pursuant to s 61M(1) of the Crimes Act and must result in some accumulation on sentence in respect of Count 2 on the Indictment. The standard non-parole period prescribed for Count 2 will not apply here because of the mitigating effect of the offender’s mental health diagnosis.

154. Having regard to all of the above circumstances, the objective seriousness of the offending, the aggravating and mitigating factors, together with the subjective case of the offender, and including a 10% utilitarian discount on sentence, the indicative sentences are as follows:

1. Count 1 – offence pursuant to s 38(b) of the Crimes Act 1900 – a term of imprisonment of four years and six months.

2. Count 2 – offence pursuant to s 61I of the Crimes Act 1900 – a term of imprisonment of three years with a non-parole period of two years and three months imprisonment.

168. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

169. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

170. Here, notwithstanding that the offending in Counts 1 and 2 took place on the same day and involved one course of criminal conduct, the offence on the Form 1A occurred some nine months previously and the Form 1 matters require some accumulation on sentence. Counts 1 and 2 were discrete offences, and Count 2 involved a significant violation of the victim requiring accumulation on sentence – see Zahorsky v R [2013] NSWCCA 268 at [59] and Christie v R [2012] NSWCCA 228 at [56]. I intend to sentence the offender to an aggregate sentence of six years.

171. I make a finding of special circumstances pursuant to s 44(2) of the CSPA based on the offender’s mental illness, the onerous conditions that will be imposed during his incarceration and the fact that this is his first time in custody. I also take into account the impact of the COVID-19 pandemic on the conditions of custody which involve the imposition of lengthy lockdowns, the absence of visitation and limitations on access to rehabilitative programs and medical services. I therefore intend to vary the statutory ratio between head sentence and non-parole period and impose a non-parole period of three years. The sentence will be backdated by 54 days to take into account the time the offender has already spent in custody.

Orders

172. I hereby order as follows:

1. You are convicted of the following offences:

Count 1 – cause person to take intoxicating substance with intent to commit indictable offence (indecent assault), pursuant to s 38(b) of the Crimes Act 1900.

Count 2 – sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900.

2. I sentence you to an aggregate sentence of six years.

3. You are sentenced to a non-parole period of three years to commence on 13 February 2022 and to terminate on 12 February 2025. The balance of term will be a period of three years to terminate on 12 February 2028.

173. I further direct that the reports of Dr Furst dated 9 July 2021 and 7 November 2021, and the reports of Dr Miao dated 19 March 2019, 19 September 2019, 12 April 2020, 15 June 2021 and 1 October 2021 be forwarded by the Registrar to Justice Health, and that the offender be provided with his ongoing prescription medication for schizophrenia.

Decision last updated: 08 April 2022