R v SP

[2023] NSWDC 667

District Court

New South Wales

Medium Neutral Citation:

R v SP [2023] NSWDC 667

Hearing dates:

1 September 2023 & 20 October 2023

Date of orders:

20 October 2023

Decision date:

20 October 2023

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

In relation to count 1, I impose a fixed term of imprisonment of 22 months.

In relation to count 2, I impose a fixed term of imprisonment of 2 years.

In relation to count 3, I impose a term of imprisonment of 6 years, with a non-parole period of 3 years.

See [63].

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10 — Indecent assault — Circumstances of aggravation

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Purposes of sentencing

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Category:

Sentence

Parties:

Rex (Office of the Director of Public Prosecutions)

SP (Offender)

Representation:

Ms T Hennessey (Crown Prosecutor)

Ms L McSpedden (Counsel for the Offender)

File Number(s):

2022/00047414

Publication restriction:

STATUTORY NON-PUBLICATION APPLIES
Section 578A Crimes Act 1900 (any matter that may identify the complainant)

Judgment

1. The offender, SP, is before the Court for sentence for three offences involving sexual contact between him and a young female relative who was, at the time, aged between six and seven. These offences are counts 1, 2 and 3 in an indictment dated 21 September 2022.The offender came before me and a jury for trial on these matters in the District Court circuit at Queanbeyan on 14 March 2023. On day one of the trial, the offender pleaded guilty to count 1 in that indictment. He thus comes to be sentenced following his late plea of guilty to that charge and was subsequently found guilty of the other two charges by the jury following trial. He is thus before the Court for sentence for all three matters, as follows:

1. Count 1, that between 30 January 2003 and 3 February 2004 near Queanbeyan he indecently assaulted the named victim, who was then aged between six and seven. Count 1 is an offence contrary to s 61M(2) of the Crimes Act 1900 which is the aggravated version of the offence and carries a maximum penalty of 10 years imprisonment for the offence in force at the relevant time. There was no standard non-parole period at the time. Due to the timing of the plea, namely, on the first day of the trial, whilst the offender is entitled to a discount on what would otherwise be the appropriate sentence, it is limited to 5% as a result of the provisions of the Early Appropriate Guilty Plea (EAGP) scheme. As I have said, the offender maintained his pleas of not guilty for the remaining two offences and was convicted by a jury of both of them on 23 March 2023.

2. Count 2 is also a charge of indecently assaulting the named victim during the same time period at Queanbeyan, contrary to s 61M(2) to s 61M(2) of the Crimes Act 1900. It attracts the same penalties as for count 1, but there is no discount available, even a limited one.

3. Count 3 is a charge that during the same time period, that is, between 30 January 2023 and 3 February 2024 near Queanbeyan, the offender had sexual intercourse with the named victim who was under ten at the time, namely, between six and seven. This is an offence contrary to section s 66A of the Crimes Act 1900 in force at the relevant time, and carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period applicable to this offence committed during that time period. Similarly to count 2, the offender is not entitled to a discount, even of a limited type, having been found guilty by the jury after trial.

2. All three offences occurred within two days of each other, while the offender was in charge of the victim and her siblings who, at that time, were living with their mother in Queanbeyan. The victim’s mother was the offender’s sister. The offender came to live with them and looked after the children whilst their mother was visiting an ex-partner in northern New South Wales. In that role, the offender took all three children, namely, the victim and her two brothers on a camping trip for the weekend.

3. The first offence, count 1, to which he pleaded guilty occurred on the first night of that trip. The offender set up a tent and put a tarp between the tent and the back of his Ute. He set up his bed under the tarp and set up beds for the children in the tent. Whilst there are no agreed facts as such for count 1, I accept from the plea of guilty, coupled with the evidence given by the victim at trial, that at some stage that night the offender called the victim to come and sleep with him under the tarp. During the night, she woke up and felt the accused’s fingers under her underwear touching her genitalia. She said he was fondling her vagina which she clarified as being around the labia within the vaginal canal. She later gave evidence that he had penetrated her vagina with his fingers. As count 1 was a charge of indecent assault, to which he pleaded guilty, I cannot make a finding that this penetration occurred. The plea of guilty together with the evidence which I can accept, allows only for a finding that the offender was touching her vulva or genital area in the vicinity of her vagina under her shorts and on her bare skin but not in a way that amounts to penetration to any extent. She used the phrase, “rubbing his fingers around the area”. She also gave evidence, which I accept, that the offender told her to be quiet and she complied. There is no further evidence before me in relation to this first count.

4. Counts 2 and 3 occurred the following night, more probably than not, at a second campsite. The facts for these two offences I accept from the jury’s acceptance of the evidence of the complainant, which must have been the case given the verdicts of guilty for both offences. So far as I recall, apart from some complaint evidence, there was no other evidence apart from the complainant to prove either of these two offences. The jury must have accepted the evidence of the complainant as being the truth beyond reasonable doubt.

5. On that basis, I accept that on this second night the offender made another campsite and the sleeping arrangements that night were that the offender was in a tent with the victim on one side and his daughter on the other. The victim had gone to sleep and woke up with the offender, in her words, “fondling her vagina.” She said she was still wearing her clothing but that he was touching her in the vicinity of her vagina inside her clothing. She asked to go and sleep with her brothers, but he said that their tent was full. They would appear to be the only facts I have in relation to count 2.

6. She then said that she wanted to go to the toilet and so the offender walked her uphill towards the toilets which was also where his car was parked. He opened the back seat of the car and laid her down on it. He pulled her underwear and shorts to the side and inserted his penis into her vagina. She gave evidence that she felt a sharp pain, and that his penis was erect and that it hurt her. She gave evidence that she could not remember anything else immediately following this incident until she woke the next day sleeping on the side of the offender with his daughter on the other side. Her evidence was, and I accept, that when she went to the toilet that morning, she noticed blood and some other fluid on her underwear. They would appear to be the bare facts relevant for each of the three offences.

7. Turning to the objective seriousness, I accept as a general proposition that all child sexual offences are objectively serious. There can be no doubt that children usually suffer ongoing significant harm when they become victims of sexual assault. No adult should ever use children for their own sexual purposes. It is a breach of the general trust that all children should be able to have in all adults that they will not use them sexually.

8. The maximum penalties for each of these offences indicates how serious each of them is, particularly so the maximum penalty of 20 years for count 3, a charge of having sexual intercourse with the complainant when she was aged under ten.

9. The objective seriousness of each offence is informed by the following:

1. The offender was a family member who the victim was entitled to trust;

2. The offender was left in charge of the victim and her brothers, so his offending represents a breach of trust over and above the general breach of trust reposed in all adults that they not engage in sexual behaviour with children;

3. There was a significant age gap between the offender and the victim. He was either 27 or 28 at the time, and she was aged between 6 and 7 according to the terms of the indictment. More specifically, as a child of only 6 or 7, she was a young child, well under the upper age limit of 10 relevant for each of these offences.

4. The victim was a vulnerable in that she was under the care of the offender, but this factor should not be assessed separately in determining objective criminality because both her very young years and the fact that she was under his care are already taken into account in determining objective criminality.

5. Whilst the evidence is not specific about this, none of the offences appears to have been lengthy duration.

6. Count 3 is a relatively serious incident of sexual intercourse with a child under 10 involving penile/vaginal penetration by a fully grown adult of a young child in circumstances where he forced her onto the back seat of his car, penetrated her and caused her pain.

10. Objectively, counts 1 and 2 are at around the midrange in terms of objective seriousness of offences capable of being charged under this section. Whilst the fact that he pleaded guilty to count 1 is to be taken into account as a mitigating factor, it was late and it did not prevent the trial taking place and he will in any event receive a small discount from the appropriate sentence to recognise that plea.

11. Count 3, it seems to me, is slightly above the midrange in terms of objective seriousness taking into account all of those factors particularly the young age of the child and the fact of its penile/vaginal penetration by an adult male of such a young child. These labels, of course, are descriptive only, as a way of attempting to place the offending in the continuum of offences capable of being charged under each section. There was no standard non-parole period relevant at the time, and these findings are not strictly necessary, but it is a terminology that has come to be used and I make those findings.

12. I have received the victim impact statement written by the victim of these offences and considered it pursuant to s 30E of the Crimes (Sentencing Procedure) Act 1999. The statement is quite long and contains some material which is probably strictly outside the regulations for such statements in that purports to set out not only the harm, suffering and distress that she has suffered as a result of these offences but also advocates on behalf of all survivors of sexual abuse and their experiences in the justice system.

13. However, there was no objection taken on behalf of the accused for its tender and I have nonetheless read the whole statement. It seems to me to be very well written and mirrors my assessment of the victim when she gave evidence as an intelligent and relatively resilient woman. These offences have had a significantly adverse impact on her. A thread runs through her statement, that the offences have robbed her of her innocence and increased her sense of vulnerability generally, which I accept to be the case.

14. Regrettably, this was not helped in any way by the authorities who first became aware of these allegations when her father reported them in 2017. There was nothing done to pursue those allegations at the time, in circumstances where this offender had already served a term of imprisonment for sexually assaulting his own daughter. This is unforgivable, and no doubt has increased her sense of anger. However, I accept that she is determined to overcome this adversity and is receiving professional help. A positive aspect of her victim impact statement is her statement that she refuses to be defined solely by the role of victim of this offender and characterises herself as a survivor and fighter.

15. In the last paragraph of her victim impact statement she states this which I quote:

“While the future is uncertain, I face it with resilience and hope. The changes this crime has brought into my life are profound, but I am determined to find ways to cope, heal, and create a future that is defined not solely by the trauma I endured but by the strength and resilience I continue to cultivate”.

16. It is to be hoped that she is provided with ongoing assistance by the State to do so because, until the recent investigation undertaken which had led to the accused’s charging and trial, it seems to me she has been otherwise seriously let down by authorities.

17. As I say I have received and considered all of her statement. Whilst the impact on her has been serious, it is not of a type which would amount to a circumstance of aggravation and regrettably it is all too familiar to the Courts as the impact on children of sexual abuse.

18. The offender comes to Court with a criminal record in New South Wales, Queensland and the Australian Capital Territory. In New South Wales that includes minor drug possession type offences dealt with in the Local Court in April 1994 with small fines. There are further similar matters also dealt with in the Local Court in 2000 by way of fine. He was sentenced by way of a s 9 bond for 12 months in February 2002 for an offence of destroying or damaging property. These are all relatively minor offences.

19. He has a record in Queensland also largely for drug use and possession offences 1996 and 1999 and one matter involving dangerous use of a motor vehicle in August 2001 dealt with by way of a fine.

20. Whilst this record exists and disentitles him to the leniency that would be the case if he came to Court with no prior criminal conviction, it does not operate as an aggravating factor.

21. There is one serious entry on his ACT criminal record which is of significance for other reasons for the sentences which I will impose.

22. On 30 March 2006 in the ACT Supreme Court, he was sentenced to a total cumulative sentence of seven years which commenced on 14 December 2005 with a non-parole period of three years in relation to three offences of incest with a child under 10. The facts and sentence judgment for these offences are tendered, as is a community corrections or probation and parole report from the ACT. The victim of these offences was the offender’s daughter who was aged 4 at the time. The first was an act of penile-anal sexual intercourse with the child. The other two were acts of oral sexual intercourse in which he caused his daughter to fellate him. He was the sole carer of his daughter at the time.

23. The offender was arrested in relation to these offences on 14 December 2005 and remained in custody for the offences until sentence. He told Police at the time of his arrest that he was motivated to offend against his daughter for sexual gratification because he was not getting sexual release elsewhere. At the time he was sentenced in 2006, as I understand it, the ACT did not have a gaol for final sentences, only a remand prison, and thus he was transferred to New South Wales and served his sentence there, apparently being released to parole on 1 June 2009 into the supervision of ACT Corrective Services. It is to be noted of course that these offences occurred in 2005, about two years after the offending the subject matter of the sentences before me.

24. The offences for sentence before me were committed about 20 years ago. The complainant did not make complaints about them until about 2014 when she was aged 17, and the offender was ultimately not arrested until 17 February 2022. He spent one day in custody before being granted bail at Court on 18 February 2022. He remained on bail until he was arrested in relation to a fresh, unrelated charge on 19 October 2022. This was a charge of intimidation where the victim was his father and was an offence committed in the Port Macquarie area. He was refused bail on 19 October for both matters and has remained in custody, bail refused, ever since.

25. The facts of this intimidation charge are tendered. He was on bail for the offences before me at the time he committed that intimidation offence. He was ultimately sentenced for that offence on 24 April 2023 in the Local Court, almost a month after he was convicted by the jury of the two serious child sexual assault offences for which he was also bail refused. For reasons that are relatively difficult to understand, he was on that day sentenced to a community corrections order of 18 months to commence on 24 April 2023 expiring 23 October 2024. It must have been obvious that he would not be likely to be in the community for any of the period of 18 months, and as I have said it seems hard to understand how that sentence was imposed. Nonetheless it was and it has remained on his record, apparently not subject to any form of appeal or similar.

26. The sentences before me will be backdated to take his two days of pre‑trial custody into account and therefore will commence on 17 October 2022. Nothing other than full time imprisonment would be appropriate to reflect all of the purposes for sentence in s 3A of the Crimes (Sentencing Procedure) Act 1999. As such the s 5 threshold is crossed and nothing to the contrary has been argued on his behalf.

27. The sentences for these offences, albeit committed 20 years ago, must reflect the current sentencing pattern, pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999. The individual sentences ordered by the ACT Supreme Court, for what were at least, for most of them, more serious offences at least than counts 1 and 2 before me, reflect not only the sentencing practices of 2006 but also with respect the sentencing practices of the ACT.

28. The statistics published by the Judicial Commission are at least one indication of the range of sentences for the offences for which I must sentence him now. It is clear, particularly in relation to count 3, that the range of sentences is somewhat higher than it was not only in New South Wales but clearly was in the ACT some years ago.

29. There is a large volume of material tendered on his behalf at sentence. With respect, probably too much and most of it historical and not up to date. That is particularly so because most of it goes to issues of his psychiatric and psychological wellbeing and his history. As I said, however, most of it is historical. There is, however, a sentence assessment report which is recent and annexes a psychological consultation.

30. The offender is now 48 and is currently in custody. Before going into custody as I understand it, he was residing at a rural property in the Port Macquarie area, where he was working as a handyman and was in receipt of Centrelink benefits. He proposes to return to that property when he is released from custody in due course, and the owners of that property have confirmed to New South Wales Community Corrections that he will assist them with their Earthmoving business and generally assist them on their property.

31. I accept from the material overall that the offender had a very dysfunctional childhood. A very lengthy judgment of the Family Court dated 30 November 1979 makes that clear. He was exhibiting sexualised behaviour at the age of 4, which it would appear was accepted by the Judge as having occurred, albeit that it is was of a somewhat bizarre nature and involved sexualised contact between him and his two-year-old sister. The Family Court Judge, however, did not accept what would appear to have been assertions made that this sexualised behaviour had its genesis in the care being given to him by his mother and stepfather.

16. The lengthy protracted custody proceedings between them ended in her Honour ordering custody to his mother. It would appear, however, that he was subsequently sexually abused by his stepfather from a time not long after that case was finalised. He was returned to live with her and his stepfather, up until the age of about 16. Reports indicate that his stepfather was imprisoned as a result, but apart from histories given, I have no further evidence of that.

17. In a report prepared for the ACT Supreme Court sentence in 2006, the offender gave a history of leaving school at 15 and then finding stable employment from the age of about 20 until he was arrested for the offences of sexually assaulting his daughter in 2005.

18. He gave a history of being diagnosed with depression for which he received medication, but also a history of ceasing that medication from time to time because they depressed his sex drive, and he did not want that to occur.

19. He started drinking alcohol at the age of 15 and was a heavy binge drinker for a number of years. He started using cannabis at the age of 11 and became addicted to it. He also, according to his report, became addicted to amphetamines, or the drug known as speed, when he was about 20. He met his wife, who was also a drug user, and together they consumed drugs regularly and he was addicted.

20. He claims to have stopped using drugs in 2005 and to have attended drug and alcohol counselling in Port Macquarie. He claimed to the ACT authorities that he had been free of drug use since about 2002. He gave them a family history, which does not entirely meet the very detailed analysis in the Family Court judgment, but nonetheless, is further indication of the dysfunctional family background. He gave a history of his own violent and antisocial behaviour during his childhood.

21. It would appear that he met his wife in 1996. They had two children, including the victim of the 2005 offences. He and his wife separated because of their drug use, and he had sole custody of the children at the time he committed the offence against his daughter. He, not surprisingly, has no contact with his daughters.

22. He did plead guilty to the offences involving his daughter and expressed remorse, which was accepted by the authorities. He even acknowledged that he required treatment in custody to assist him to control his inappropriate sexual behaviour around his young daughter. It was recommended that he received treatment through the sex offenders’ program. In the report presented to the ACT Supreme Court, Probation and Parole was of the view that he remained a high risk of reoffending until that treatment had been commenced and dealt with his inappropriate behaviour. That in fact occurred.

23. He commenced the CUBIT Outreach Program whilst he was in custody serving the ACT term of imprisonment in New South Wales. He undertook that program between 9 September 2008 and 9 April 2009. A CUBIT report dated 1 July 2009 is before the Court. I have read that report, which like almost everything else tendered on behalf of the offender, is long and detailed. I do not propose to summarise the individual details of that report but accept that when he was released to parole in June 2009, he was assessed as being in the low to moderate risk category of sexual offending relative to other adult male sexual offenders.

24. His participation in the CUBIT program highlighted an ability to identify effectively, and address risk factors, and to manage his overall risk. A therapeutic plan was suggested for the duration of his parole.

25. It would appear that his parole was transferred from ACT to New South Wales at his request and whilst the up to date sentence assessment report tendered for these matters states that he has not previously been subject to supervision by New South Wales Community Corrections, that would not appear to be accurate given that he moved to live on the New South Wales mid-north coast not long after he was released, and was presumably supervised on parole.

26. However, with the exception of the intimidate charge involving his father committed in October 2022 in the Port Macquarie area and a driving offence also in the Port Macquarie area in March 2017, there is nothing on his record following his release to parole and certainly nothing to indicate any relapse into sexual offending. As such, I accept it would appear that the opinion that he was of a low to moderate risk category for sexual offending in that CUBIT report was accurate.

27. That finding is important because it is necessary to assess his risk of offending when sentencing for the offences before me, albeit that they occurred 20 years ago, but in circumstances where they were offences also involving a young girl, who was a family member, albeit two years before the offending against his own daughter. He was clearly a significant risk of sexual offending against children, particularly family members, at around that time, but I accept from the evidence that this is no longer the case. I accept from the psychological report attached to the sentence assessment report that on the Static-99R assessment he now scores at below average risk. While this report makes it clear that there had not yet been any assessment of dynamic risks, nor treatment needs, in any event, because he is assessed as below average risk of sexual offending, he would not be eligible for participation in any sex offender program currently offered by New South Wales Corrective Services. He may be eligible for other programs but that will not be known until his sentence is finalised and he is treated as a sentenced prisoner.

28. When he his released to parole on these sentences he will be supervised in a way, I accept from the report, that attempts to minimise his risk of further offending. Community Corrections assesses him at a medium risk of reoffending. One of the conditions which will likely be imposed is to limit any possible access to or contact with a person under 18 years old. He will, in any event, continue to be subject to the conditions imposed on those who are registered on the Sex Offenders Register, which has been the case for him and will continue to be the case for quite some time.

29. He is unlikely to have access to children in the foreseeable future, and in any event, I accept that since undertaking the CUBIT program he has gained some insight into his offending behaviour and has taken proactive steps to remain away from children, including living in relatively isolated circumstances.

30. His risk of sexual reoffending against children, or at all, on my finding is low. There is some risk of general reoffending given that he has reoffending as recently as October 2022, but it is relatively low and can be best addressed in my view by a longer than normal period of supervision in the community to deal with the surrounding psychological and psychiatric issues.

31. That risk is in part contributed to by these ongoing psychiatric conditions. I accept Dr Carne’s diagnosis of him in March 2019, as having a background of a personality disorder with significant post-traumatic stress disorder and a depressive illness, is at least it would seem in part, as a result of being sexually abused by his stepfather as a child.

32. As I understand it, there is nothing more recent than that before the Court in terms of a psychiatric assessment and diagnosis. At the time of Dr Carne’s assessment, he was taking medication for post-traumatic stress disorder and informed Community Corrections for the updated sentence assessment report that this was ongoing in custody, but they were not able to confirm that. I accept the opinion of Community Corrections however that in custody now he presents as emotionally fragile and that without medication he is at risk of self‑harm.

33. There is no evidence of a psychiatric condition as at the time of offending or that it played any part in his offending 20 years ago, but a clearly dysfunctional and tumultuous background did, and particularly so I accept because of the way his background would appear to have manifested itself in sexualised behaviour as a child, and himself becoming the victim of sexual abuse within the family as a child.

34. I accept that this deprived background, to an extent, reduces his moral culpability for committing the offences that he did against this victim in 2003 in the way that has been determined by the High Court in Bugmy v The Queen (2013) 249 CLR 571. That is not to suggest, of course, that he suffered from the same level of dysfunctionality as that in Bugmy, nor that those particular circumstances that surround some Indigenous Australians are relevant to him, but nonetheless I accept that the dysfunctional background, and particularly the way that he was involved in sexualised behaviour from a very early age, has led to his own dysfunctional behaviour and has, to an extent at least, reduced his moral culpability for offending. Further, as a person who continues to suffer from a psychiatric condition today, he is at least to some extent a lesser vehicle for general deterrence.

35. There must however be an element of general deterrence represented by the sentences imposed here. There can be no excuse for sexual contact with children and even dealing with offences 20 years old, committed by a person who would now appear to have been largely rehabilitated from this offending, sentences must nonetheless send a strong message that this behaviour will not be condoned and will almost always give rise to relatively lengthy terms of imprisonment.

36. He has expressed some remorse for committing the first offence as expressed to Community Corrections and to a somewhat limited extent represented by the plea of guilty, but of course he did not plead guilty to the other matters and there has been no demonstrated remorse.

37. Overall, his remorse in relation to these offences is not particularly convincing but it seems to me that that does not, to any great extent, affect the appropriate penalties here. It may have decreased the appropriate penalty had he shown genuine remorse, but the appropriate penalty will not be increased here simply because he has not shown remorse and does not admit to having committed two of the offences.

38. I then turn to the appropriate penalties, taking into account all of these relevant considerations, not just the objective criminality and the other mitigating and aggravating factors referred to but also his own subjective circumstances, including his dysfunctional background and the impact that has had on his moral culpability for offending at the time, issues of general deterrence, the need for appropriate punishment and also overall to promote rehabilitation.

39. It seems to me that there is not a significant need for specific deterrence to be factored into this sentence in circumstances where he is a person who has largely effected his own rehabilitation since his ACT prison term came to an end.

40. It seems to me that both counts 1 and 2, albeit committed on separate nights, are largely the same in terms of the circumstances in which they were committed and the objective criminality, certainly only taking into account those matters which I am entitled to take into account for count 1, for each of them the overall penalty should be 2 years imprisonment.

41. Count 1 should be reduced by 5% for the late plea of guilty. Being somewhat generous to the offender I will reduce that by two months to 22 months, which is a little more than 5%.

42. The penalty for count 2 will be two years. There is no discount available.

43. I will ultimately be sentencing by way of fixed terms for both of those sentences because they will represent part of an overall non-parole period.

44. The range of penalties for the offences pursuant to s 61M(2) is very wide, as reflected in the statistics. Those statistics are not in fact of much assistance in determining what the penalty should be here. Nonetheless, it is my determination that the starting point of 2 years is appropriate.

45. For count 3, the range of penalties for this offence is wide, although not as wide as for the indecent assault offences, as reflected in the JIRS statistics. It is clearly the case that sentences for these offences have increased significantly since the time of the offending and certainly since he was sentenced in the ACT. I do not have any comparable cases but again, taking all of these matters into account, I have concluded that the appropriate sentence for count 3 is an overall sentence of 6 years.

46. There are special circumstances being that there will be some partial accumulation, namely that there ought be a somewhat longer than normal period of supervision in the community to assist with rehabilitation. In order to give rise to my ultimate finding of totality I will be setting a non‑parole period of 3 years for that offence.

47. If each of these sentences was accumulated on the other, the overall sentence would be just short of 10 years. In my view that is excessive. There should be some partial accumulation. I have concluded overall that the sentence should be one of 7 years with an overall non-parole period of 4 years. To give rise to that I will partially accumulate each of the sentences. I make the following orders:

1. For each offence the offender is convicted.

2. For count 1, he is sentenced to a fixed term of imprisonment of 22 months, commencing 17 October 2022, expiring 16 August 2024.

3. For count 2, he is sentenced to a fixed term of imprisonment of 2 years, commencing 17 April 2023, expiring 17 April 2025.

4. I decline to set non-parole periods for these offences because they will be part of an overall non-parole period.

5. For count 3, he is sentenced to a non-parole period of 3 years, commencing 17 October 2023, expiring 16 August 2026, with parole thereafter of 3 years, commencing 17 October 2026, expiring 16 October 2029, giving rise to an overall term of imprisonment of 6 years, commencing 17 October 2023, expiring 16 October 2029.

64. That will give rise effectively to an overall term of imprisonment of seven years, which commenced on 17 October 2022 and will expire on 16 October 2029, an effective period in prison, whether by way of non‑parole period or fixed term, of four years, which commenced on 17 October 2022 and is due to expire on 16 October 2026.

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Decision last updated: 24 April 2025