R v Spyridakos

Case •

[2022] NSWDC 736

•

16 December 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Spyridakos [2022] NSWDC 736
Hearing dates: 11/11/22, 16/12/22
Date of orders: 16/12/22
Decision date: 16 December 2022
Jurisdiction:Criminal
Before: Bourke SC DCJ
Decision:

Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 4 years 9 months (28/4/21-27/1/26). I find special circumstances.

The indicative sentences are:

Seq 13 – 2 years 3 months with a NPP of 15 months.

Seq 15 – 2 years 7 months with a NPP of 17 months (Form 1 taken into account).

Seq 16 – 2 years 3 months.

Seq 17 – 2 years 4 months (Form 1 taken into account).

Seq 19 – 2 years 4 months (Form 1 taken into account).

Seq 20 – 2 years 6 months.

Seq 21 – 2 years.

High Risk Offender warning given.

Catchwords:

Crime – Sentence – Sexual intercourse with child 10-14 years – Sexual intercourse with child 14-16 years

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571

Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194

Lloyd v R [2022] NSWCCA 18

Category:Sentence
Parties: NSW DPP – Crown
Sotirios Spyridakos - Offender
Representation: Mr A Terracini for Crown
Mr K Averre for Offender
File Number(s): 21/118963
Publication restriction: Statutory non-publication order in relation to the identity of the victims

sentence

  1. The offender is before the Court for sentence on the following offences. Sequence 13 and 15, which are offences of sexual intercourse with a child above the age of ten years but under 14 years. The maximum penalty being 16 years imprisonment and a standard non-parole period of seven years being specified. Also sequences 16, 17, 19, 20 and 21, being offences of sexual intercourse with a child above the age of 14 but under the age of 16. The maximum penalty being ten years imprisonment.

  2. In addition, the offender asks that I take into account other admitted offences on Form 1 documents, namely sequence 6 and sequence 12, being offences of sexual touching of a child aged above ten but under 16 years. The maximum penalty being ten years. Those two admitted offences will be taken into account in sentencing for sequence 19.

  3. On a separate Form 1, sequence 14, sexual intercourse with a child above the age of ten but under 14. The maximum penalty being 16 years imprisonment with a specified standard non-parole period of seven years to be taken into account in sentencing for sequence 15. And sequence 18 on a Form 1 document, being an offence of sexual intercourse with a child above the age of 14 but under the age of 16. The maximum penalty for that being ten years imprisonment and that to be taken into account in sentencing for sequence 17.

  4. The offender pleaded guilty at the earliest opportunity and is to be given a 25% discount on account of the utilitarian value of that plea. The maximum penalties and where applicable standard non-parole periods are of course important guideposts in the sentencing exercise to which I have had regard.

FACTS

  1. The facts are set out in an agreed statement and in essence are as follows, commencing with the sequence 21 offence relating to CH. CH was born in 2004. She met the offender through a mutual friend Zoran in early 2018 when she was 14 and in year 8 at high school. In the days following the first meeting, the offender added CH as a friend on Snapchat and the pair exchanged messages. The offender requested that they meet in person, but CH was uncomfortable with his persistence so she stopped responding and they did not have contact for several months.

  2. In May 2018 however, when CH was 14 years old and still a student in year 8, she had plans to meet with a friend SW to go to a gym class and so she went home and changed into gym clothes. SW had made arrangements for her male friend, Zoran, to pick her up and drop her at the gym. However when she attended the pick-up point, CH noticed that the offender was in the driver’s seat of the car, with Zoran in the front passenger seat and another male, Andre, in the back seat.

  3. CH got into the back seat of the car, after which the offender dropped the two males off at their homes. CH then moved to the front passenger seat and the offender drove her to Warringah Mall car park in order to drop her at the gym. They arrived at Warringah Mall around 4.45pm and chatted in the car for a time. The offender was asking questions of CH about “hooking up” and whether she found him attractive. CH avoided these questions as she felt uncomfortable and sent messages to her friend SW, saying, “I don’t feel comfortable with Sam. When are you getting here?” and “Hurry up”.

  4. After these messages were sent the offender lent over and kissed CH on the mouth using his tongue, which CH allowed him to do, believing she had no other option, and that if she had stopped him he would not let her out of the car. While kissing CH the offender moved his hand down her stomach and inside her underwear and inserted two fingers into her vagina. CH was not comfortable with this and did not want it to occur. The offender continued to move his fingers in and out of her vagina for several minutes.

  5. SW called CH on her phone and when CH answered SW said she was walking up the stairs to the car park. CH then got out of the car and saw SW and hugged her, saying “Help me”. The two girls then got into the car with CH sitting in the front passenger seat. At this point when CH was scared and stunned, the offender put his hand on her thigh and tried to kiss her again, but she moved her head and avoided contact. CH and her friend SW remained in the car with the offender for several minutes before going to the gym class. While at the gym class CH told SW what had happened.

  6. During the class the offender sent several messages to CH offering to wait for her outside and take her home, however CH replied that her mother or sister was picking her up. After the gym class CH, accompanied by SW, walked quickly to the bus stop so as to avoid seeing the offender. In the following days the offender sent CH several more messages on Snapchat, which she did not open.

  7. At the end of the 2019 the offender messaged CH on Snapchat again, to which CH responded, “Why would I want to talk to the person who sexually assaulted me?”

  8. At the beginning of 2021 CH saw an Instagram post by her friend ZW and noticed that the offender had commented on it. CH then sent ZW a message on Snapchat, warning her about the offender and telling ZW about the above offence.

  9. On 26 March 2021 CH was approached by police, who were investigating the offender, and she told them what had happened at Warringah Mall in 2018. Since the offence, CH has suffered depression and anxiety and is now medicated.

  10. Turning then to the sequence 13 and 15 offences involving the victim LC. LC met the offender in August 2019 when she was 13 years old and in year 8 at high school. She first met the offender at Manly when she was with her friend AS, another victim to whom I will be referring shortly, and the offender turned up with a mutual friend named Casey. At the time the offender was 19 years old.

  11. On this occasion Casey asked LC if she would like to “get with” the offender, a suggestion she declined. She was only present at the meeting for about ten minutes that day, but afterwards the offender added her as a friend on Snapchat and Instagram. Over the following days the offender sent LC messages complimenting her appearance and inviting her to dinner. LC was flattered by the attention.

  12. During these communications LC told the offender she was 13 years old, to which he replied, “If anything happens between us, don’t tell anyone.” During these communications the offender asked LC to send “nudes” and she responded by sending him photographs of her breasts, and the offender sent LC videos of him masturbating and ejaculating.

  13. About a week after this first meeting the offender and LC arranged to meet and go to Manly lookout. The offender asked LC to wear sexy underwear and so LC took a lace G-string belonging to her mother and also watched a pornographic video to familiarise herself with sexual intercourse. On this date LC wore her school uniform with her mother’s G-string underneath and walked to the nearest bus stop around 7.30am, where the offender picked her up in a car. A mutual friend, Casey, was in the car also and the offender drove them all to Casey’s house at Manly Vale.

  14. LC, the offender and Casey entered the house, and the offender and LC went to Casey’s bedroom where they chatted briefly and then started kissing. The offender undressed LC and removed her underwear, after which he licked her vagina for a period of time. This is the sequence 13 offence of sexual intercourse with a child aged above ten years but under 14 years.

  15. After this LC performed fellatio on the offender. This is the sequence 14 offence which is to be taken into account on a Form 1 document when imposing sentence for the sequence 15 offence, the facts of which are as follows.

  16. A short time after these events the offender left the bedroom and returned with a condom. He then asked LC to lie on the bed, which she did, and the offender put the condom onto his penis and applied saliva to LC’s vagina. The offender then placed his penis into LC’s vagina and had sexual intercourse with her. As this was LC’s first experience of penile penetration she felt pain in her vagina during the intercourse, which ended after about six to seven minutes when the offender ejaculated.

  17. After this the offender told LC not to tell anyone what had happened. However later that day LC told her friend AM. After this LC blocked the offender on social media. A rumour spread through the school that LC had had sex with the offender, which caused her to be embarrassed and ashamed.

  18. LC told police of the above offences on 16 July 2021 after they approached her to discuss the offender.

  19. Turning then to the facts of the sequence 19 offence involving MP. In October 2019 MP became friends with MS, a girl nicknamed “Poshey”, both girls being at that time 14 years of age. MP and Poshey spent time together regularly and often had sleepovers at each other’s houses. In early October 2019 Poshey was messaging the offender, who was then 19 years old, and organised with the offender for him to buy them some alcohol and to meet up at Warringah Mall.

  20. That night they met with the offender at Warringah Mall and hung out at the bus stop and car park, consuming alcohol. The offender began showing attention to MP by touching her waist, holding her hand and hugging her. MP did not know what to do as this was the first person who had shown such an interest in her. Throughout the night MP told the offender that she was in year 8 and was 14 years old.

  21. Later that night they all went back to the offender’s mother’s property, where there was a granny flat. Inside the granny flat Poshey, who was very drunk, fell asleep. After this the offender and MP began kissing, although MP did not want to kiss the offender but felt she had no choice. While they were kissing the offender put his hand down MP’s pants and touched her on the vagina for about five minutes, although without penetrating her vagina. This is sequence 6, sexually touch child aged over ten but under 16 offence which is on a Form 1 document.

  22. This activity however stopped when Poshey woke up and a short time later the offender’s mother came into the granny flat and told them to leave, which they did. That night the offender and MP added each other as friends on Snapchat and thereafter exchanged messages and photographs.

  23. A few days later MP and the offender met up. MP was at home with her friends, Laura and Alyssa, and the offender collected the three of them in a car. At the time Emily, who was another friend of MP, was already in the car. The offender then drove them all to a bottle shop where he bought a bottle of white wine and some other drinks, after which the group went to the house of one of the offender’s friends in Manly Vale.

  24. Once inside the house MP drank the entire bottle of white wine, causing her to be very drunk and to have no recollection of what occurred that night. Several weeks later, in October or November 2019, MP met with the offender a third time. The offender collected MP and Poshey in his car and took them to a beach where they swam, after which the offender dropped Poshey at her grandmother’s house.

  25. The offender then drove around with MP in the car before stopping at a lookout, where the offender put on some music and they began kissing. While kissing, the offender pulled aside the bikini top that MP was wearing and sucked her nipple, saying, “I like the small ones”. This is the sequence 12, sexually touch child aged above ten but under 16 offence which is to be dealt with on a Form 1 when sentencing for sequence 19.

  26. After this the offender undid her shorts and pulled down the zip, after which he began touching her vagina with his hand. The offender asked her several times to sit on his lap, which she did in a straddling position as they continued kissing, with the offender saying, “Is that the most passionate kiss of your life?” MP smiled and eventually returned to the passenger seat. After this the offender inserted two fingers into her vagina, causing MP considerable pain as she was a virgin. The offender moved his fingers inside her vagina quickly and with a lot of force, such that MP noticed the veins in his arm starting to bulge. MP was shocked with the intensity of the pain. This is the sequence 19 sexual intercourse with child aged above 14 but under 16 years offence.

  27. The offender then pulled down his own boardshorts exposing his erect penis, took hold of his penis with one hand and asked MP if he could “eat her out”. MP replied “No” to this suggestion, to which the offender responded, “You can have a smoke while you let me lick your pussy,” and asked to have sex in the back seat, but MP said no to all of these suggestions. After the offender pulled up his shorts, MP asked to be dropped at a friend’s house, to which the offender agreed and they kissed before saying goodbye. Once inside her friend’s house, MP used cold wet toilet paper to soothe her sore vagina which hurt her for about 24 hours afterwards. She also told her friend what had happened.

  28. After this MP and the offender lost contact and MP did not tell anyone about the incident until contacted by police in April 2021.

  29. The sequence 20 offence involves LJ. LJ met the offender and his friend Casey in 2019 when she was in year 8 at high school and aged 14 or 15 years. The offender was then 18 or 19 years of age. A meeting was arranged and LJ’s best friend RY said she would bring LJ, and Casey said he would bring the offender. The group met at a park where LJ started drinking alcohol and became intoxicated and “hooked up” with Casey, while RY “hooked up” with the offender. This was the first time that LJ had met the offender, but after this night the four of them met as a group regularly.

  30. At some time between September and November 2019 this group of four went out in Manly one evening, at a time when LJ was 15 years old and the offender 19 years old. During the evening LJ consumed some wine, MDMA and cannabis, after which the group went to Casey’s house. At this time LJ understood that the offender was dating RY and considered the offender to be like an older brother.

  31. At the house the offender encouraged LJ to smoke some cannabis by constantly putting “buds” into a joint and saying, “Let’s get fucked up together”. LJ smoked the cannabis and felt extremely high. After this, LJ went to one of the bedrooms and the offender came in and began touching her on the hips and breasts over her clothes, to which she responded, “I don’t think we should do this”. LJ was lying on her back and the offender lay on top of her, pulled her underwear to one side and put his penis into her vagina and began thrusting while holding LJ by the wrists. The offender said, “I know you want it,” but LJ said, “I just don’t think we should do this.” The offender, who was not wearing a condom, ejaculated, however LJ cannot recall if this was inside her vagina.

  32. In the weeks following, LJ became very anxious about what had happened and her friends noticed that something was “off” about her and that she had become very quiet. LJ told a friend KD that she was very concerned she was pregnant because RY’s boyfriend, which I take to be a reference to the offender, had had sex with her. As a result LJ’s friend KD transferred some money to LJ so she could buy a “morning after pill”. LJ did not, however, become pregnant. Subsequently LJ told friends not to go near the offender.

  33. This brings me to the facts of the sequence 16 and 17 offences relating to the victim AS. AS met the offender in 2018 or 2019. The offender was close friends with her ex-boyfriend Casey, who she had dated for about two weeks in 2019. During this time she was friends with the offender on Snapchat and had attended his home with Casey on numerous occasions. In the period June to August 2020 AS was 14 years old and the offender was 20.

  34. One day during that period the offender attended AS’s home by jumping the back fence, at a time when AS was home alone and her mother was at work. The offender then entered the home, went to the bedroom where AS was sitting and they then had penile vaginal intercourse over a period of about 15 minutes, with the offender on top of the victim. This is the sequence 16 offence of sexual intercourse with a child aged above 14 but under the age of 16.

  35. In April 2021 AS was 15 years old and was in year 10 at high school. The offender was 21 years of age. On 28 April 2021, in the afternoon, AS caught a bus to Dee Why beach to meet up with friends to go for a walk. At the time she was wearing her school sports uniform and when she got off the bus at the beach she saw the offender walking towards her from the other side of the road. AS continued walking in a northerly direction, past a surf lifesaving club onto a grassy area, where she sat and waited for her friends.

  36. She was then approached by the offender and the two of them then moved into some shrubs towards the lagoon. The offender placed AS on the ground so that she was on her back. He then pulled down her shorts and underwear and tossed them nearby. After this, the offender tried to kiss AS on the mouth but she moved her face away. The offender then got on top of AS and inserted his erect penis into her vagina and had sexual intercourse with her over a period of about five to ten minutes. He was not wearing a condom. This is the sequence 17 offence of sexual intercourse with a child aged over 14 but under 16 years of age.

  37. The offender then took his penis out of AS’s vagina, pulled up her shirt and encouraged her to perform oral sex on him, which she did for about 30 seconds to one minute. This is the sequence 18 offence which is to be taken into account on a Form 1 document. After this the offender pulled his pants up and left, and AS caught the bus home where she called her mother, after which police were contacted.

  38. AS attended Royal North Shore Hospital the same day where a Sexual Assault Identification Kit procedure was conducted. No injuries were identified. Subsequently on 10 May 2021 AS accompanied police on a walk through at Dee Why beach to show them where the offences happened.

  39. On 28 April 2021 police attended the offender’s home in Brookvale, where he was arrested in relation to the offences committed against AS. He was taken to Manly Police Station where he was interviewed, during which he admitted to having what he called consensual sexual intercourse with AS one or two years ago at her house. He also admitted to having a “consensual” sexual encounter with her earlier that day at Dee Why beach. The offender told police that he knew AS was “under age”.

  1. The offender was refused bail from 28 April 2021. On 8 July 2021 police attended Silverwater Gaol and spoke with the offender about the allegations made by other victims, however he declined to participate in a further interview. Those are the facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

  1. Turning to questions of objective seriousness. All of the offences are serious, as is acknowledged by the maximum penalties, and in the case of the sequence 13 and 15 offences the standard non parole periods that are specified. However it is important for me to make an assessment of the seriousness of each of the particular offences committed by this offender by having regard to all relevant circumstances.

  2. In assessing the seriousness of the offences and in determining the final sentence, I take into account the almost inevitable fact that many or most victims of childhood sexual offences will be adversely affected, often seriously, and for a long time. As the courts have said many times, emotional and psychological harm is to be expected when such offences are committed against children. It is for these reasons that deterrence, both personal and general, must be given significant weight.

  3. The sequence 21 offence involved a digital penetration of CH’s vagina. At the time she was just over 14 years of age, which places her in the lower age bracket for an offence under s 66C(3). The offender was about 17 and nearly 18 years of age. Generally speaking, the greater the age gap between an offender and a victim, the more serious the offence, because of the power imbalance that such a gap in age and maturity usually involves. While in this case the age gap was just under four years, which is not great when compared with many cases, it was still significant given that the victim was still a school child in year 8, whereas the offender was no longer at school and was in comparison engaging in more grown up activities, including driving a car.

  4. While CH was unable to provide consent to the digital penetration, there is no suggestion that the offender took any steps to ascertain whether his actions were wanted or unwanted. As the facts indicate, they were unwanted and made the victim feel uncomfortable and fearful. The penetration went on for several minutes and so it cannot be described as brief or fleeting. I assess this offence as slightly below the midrange of objective seriousness.

  5. Turning then to the sequence 13 and 15 offences involving LC. Each of these offences were committed on a 13 year old girl and the offender had been told she was 13. At age 13 she was towards the upper end of the age range for these s 66C(3) offences which apply to a person aged above ten but under 14. The offender was at the time 19 years of age and so there was a reasonably significant age discrepancy.

  6. The offences were preceded by some grooming in the form of communications over social media, in which the offender complimented the victim on her looks, enticed her to send photos of her naked body, and sent her sexually explicit videos of himself. The offender also engaged in action designed to conceal his offending by telling LC not to tell anyone. The offending led to shame and embarrassment for the victim when rumours spread around the school.

  7. While the victim engaged in the activity willingly and was not forced, she was of course unable to provide consent due to her age. There is also the fact that the penile vaginal intercourse caused the victim pain.

  8. I assess the sequence 13 offence involving cunnilingus as being slightly below midrange. I assess the sequence 15 penile vaginal intercourse offence as being more serious and closer to the midrange.

  9. Turning then to the sequence 19 offence involving MP. This involved a girl who was 14 when the offender was aged 19, a fairly considerable age gap. At age 14 the victim was at the lower end of the age range for this type of offence. While sexual contact was initially engaged in willingly by the victim, she was of course unable to provide consent given her age. It was argued by the Crown that this offence involved the use of alcohol, however the agreed facts do not support that there was any alcohol used on this particular occasion. There was, however, a level of grooming and the penetration of the victim’s vagina was very forceful and caused her great pain, as well as continuing discomfort for about 24 hours. I assess this offence as slightly below the midrange.

  10. The sequence 20 offence involving LJ constituted penile vaginal intercourse with her when she was aged about 15 and the offender was 19. The victim was therefore towards the upper age range for this type of offence. The offence involved the offender encouraging LJ to smoke cannabis. However, while this is part of the background, I have taken care to avoid De Simoni error in treating this as an aggravating feature.

  11. The offence was committed despite some verbal resistance from LJ and involved the offender holding her down by the wrists while she was saying, “I don’t think we should do this”. The penile penetration was without a condom, with the obvious risk of pregnancy and disease that that entailed, notwithstanding the fact that there is no evidence that the offender ejaculated into her vagina. The offence also caused considerable distress to the victim, which lasted for some time. I assess it as an objectively serious offence that is closer to the midrange.

  12. The sequence 16 offence involved penile vaginal intercourse upon AS, who was 14 at the time and the offender was aged 20. At 14 the victim was towards the lower end of the age range for this type of offence, but there was a fairly significant age differential. The facts are silent as to whether a condom was used or whether the offender ejaculated and so I ignore these possibilities in assessing objective seriousness. I regard the objective seriousness as being slightly below the midrange.

  13. Turning to the sequence 17 offence. This offence involved penile vaginal intercourse when AS was 15 and the offender was 21 years of age. AS was therefore towards the upper end of the age range for this type of offence and the offender was considerably older. It was committed despite some resistance from AS, who turned her face away when the offender tried to kiss her, and the intercourse occurred without a condom with the obvious risks that that involved. The facts do not suggest that the offender ejaculated inside the victim’s vagina and so I ignore this possibility, although the risks of disease and pregnancy still remain. I assess this offence as being slightly below the midrange of objective seriousness.

  14. While not relevant to the objective seriousness of any of the offences, the offender’s general criminality is increased in relation to the offences in sequence 17 and the sequence 18 offence on a Form 1 by reason of his being subject to conditional liberty, namely being on a Community Corrections order at the time that those offences were committed.

SUBJECTIVE MATTERS

  1. I turn then to subjective matters relating to the offender himself. The offender is now 22 years of age and at the time of the offences was aged between about 17 and 21. When he committed most of these offences he had no criminal history. However, on 28 July 2020 he was dealt with in the Manly Local Court for two offences of assault and an offence of damage property which were committed on 19 July 2020, and he was sentenced to a Community Correction order for 12 months. That order, however, was breached and on 23 September 2020 another CCO of 12 months was imposed from 23 September 2020 as a result of that breach and another offence of assault and contravene Apprehended Domestic Violence Order.

  2. The offender’s subjective case has been placed before the Court largely by means of a psychological report of Kris North and a reference from the offender’s mother. The Court also has a background report prepared by Youth Justice dated 13 December 2022. The offender is the eldest of two children. His parents separated when he was 18 and he told his psychologist he thought his own behavioural issues contributed to the separation.

  3. He was diagnosed with ADHD at age eight and placed on medication. At age 12 he was also diagnosed by a psychiatrist as having Oppositional Defiant Disorder. The offender had difficulties at school and was bullied, and also had his own behavioural issues which led to him being asked to leave in year 9. He did however manage to complete his school certificate through TAFE and obtained work from about age 16 in concreting and window cleaning.

  4. Due to his behavioural issues the offender was asked to leave the family home when he was 17 to 18 and was homeless for a time, which resulted in an escalation of his drug use which had commenced with cannabis around age 14 and pills such as MDMA and cocaine from age 17, as well as methamphetamine and other drugs from age 19. He has also a history of gambling problems.

  5. The psychologist noted that the offender’s problems at this young age were added to by his feelings of loneliness and worthlessness and his perception that he had no friends. According to the history taken by the Youth Justice caseworker, the offender’s downward spiral in his mid teens may have been linked in part to the death of his paternal grandfather and paternal aunt which the offender said had been his closest family relationships.

  6. In August 2020 he was admitted to Northern Beaches Hospital after expressing to his father thoughts of suicide, and the psychological report before the Court refers to clinical notes indicating that he has been admitted previously up to four times due to “threats of violence and suicidal ideation”. Ultimately the psychologist formed the assessment that the offender met the criteria for ADHD, borderline personality disorder, major depressive disorder, as well as stimulant use disorder and cannabis use disorder, although these latter two conditions are considered to be in sustained remission.

  7. The psychologist concluded also that there were a number of factors in the offender’s background and psychological condition which directly contributed to his offending, these being general social rejection, impulsivity and poor problem solving skills.

  8. Reference was made in written submissions for the offender to the well known principles in Bugmy v The Queen (2013) 249 CLR 571 and Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 which each speak about, among other things, an offender’s moral culpability and the potential impact on this by reason of a person’s background and/or mental health problems.

  9. While there is no bright line test to separate “Bugmy” cases from “non Bugmy cases”, it does not seem to me that this is a case where it can be said that the offender’s background was affected by the sorts of profound depravation, abuse or exposure to violence that were discussed in that case. However, I do accept that the offender’s childhood, which included bullying at school, early use of drugs, and having to leave the family home at a young age to fend for himself, was a disrupted and difficult one. I have taken this into account as part of the mixture of relevant matters.

  10. The offender’s disrupted and difficult teenage years and his diagnosed mental health issues, which I conclude existed before and at the time of the offences, are matters which I accept contributed to his offending to some degree. This is relevant to his moral culpability. While I otherwise regard the offender’s moral culpability as being fairly high, these matters reduce it to some degree.

  11. I also accept that his diagnosed conditions of ADHD, borderline personality disorder and major depressive disorder are such that they have and will continue to make his time in custody more difficult than if those conditions were not present.

REMORSE AND REHABILITATION

  1. Turning then to consider matters of remorse and prospects of rehabilitation. The psychologist noted that the offender accepted the Agreed Facts and accepted that the victims were unable to provide consent due to their young ages. This position is, however, contradicted to some extent by the Youth Justice background report, which admittedly relates only to an interview concerning the sequence 21 offence. However the author of that report noted that when asked about this offence the offender said, amongst other things, that he was affected by cannabis and “Thought she wanted to have a hook up, I thought she was flirting with me but I guess she wasn’t,” and “I thought she was 16,” and “I didn’t force anything on her...she did not pull away until the end,” and that he did not believe his actions were harmful.

  2. The offender also made comment to the effect that this victim, “Gave me mixed signals,” that “she’s making me out to be something that I’m not,” and “She lied to me”.

  3. Ultimately I conclude that there is some evidence of remorse for each of the offences. However, the extent and quality of that remorse is diminished in relation to all offences by the attitudes expressed in relation to the sequence 21 offence involving CH and the fact that the offender gave no evidence on oath by which any expressions of remorse might be tested.

  4. The psychological report notes that the offender has been on a Buvidal injection to help him avoid drugs since early 2022 whilst in custody. As noted by the psychologist, the offender has not engaged in any other treatment but said he was willing to do so in the future. The psychological report did not identify any deviant sexual interests or preoccupations in the offender, however it notes that the Static 99 actuarial assessment rated him as above average risk for sexual recidivism.

  5. The offender maintains the support of his parents, and a character reference from his mother was admitted into evidence. She confirmed much of the history provided by the psychologist, including the offender’s diagnoses of ADHD and ODD, as well as his admissions to psychiatric hospitals and his long term difficulties with problem solving.

  6. The offender’s limited criminal history, aside from the matters before the Court, and the fact that he has support from his family, are matters that temper to some degree his risk of reoffending. However, given the serious nature of the offences, the period over which they were committed, the number of victims, his history of drug problems and diagnosed mental issues, it is difficult to form a positive view about his prospects of remaining crime free. I note also that the offender failed a drug test in custody in May 2022.

  7. In my view he remains a significant risk and his prospects of rehabilitation will depend on whether he can find gainful employment, seek out psychological treatment and avoid drugs once he is released from custody. At best his prospects are guarded.

THE PANDEMIC

  1. In sentencing the offender I have taken into account that his custody to date has been during the COVID pandemic, with the well-known restrictions and additional hardship that this has involved for persons in custody. This has included restricted or, at times, no access to visits, restricted access to programs and other services, frequent lockdowns and other problems. In this particular case there is unchallenged evidence via the affidavit of solicitor, Ms Hunter, that the offender has been subjected to many days of lock ins during 2021 and 2022. I take this into account and also take into account that this may or is likely to be the situation for some time to come.

SEQUENCE 21

  1. A question that needs to be addressed before going further arises from the agreed fact that the sequence 21 offence was committed when the offender was 17 and therefore himself a child. Subsection 31(1) of the Children (Criminal Proceedings) Act 1987 creates in effect a presumption that this offence should be dealt with summarily under the Children’s Court jurisdiction. However s 18 of that Act enables the Court in an appropriate case to deal with such an offence according to law after having regard to the matters referred to in s 18(1A). Having had regard to those matters and the concession on behalf of the offender that it is inevitable that the Court would deal with the matter according to law, I intend to take that course.

  2. However, in dealing with that sequence 21 offence I have had regard to the principles set out in the Children (Criminal Proceedings) Act that apply when sentencing a child. As I said the offender is now 22, but was aged between about 17 and 21 at the time of the offences.

  3. In BP v R [2010] NSWCCA 159 Hodgson JA said at para 4:

“...Considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less than fully developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution.”

  1. At para 5 his Honour added:

“...In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties.”

  1. It has been observed in other cases that that phenomenon is regarded as particularly relevant with respect to young males. I take into account these considerations and the principle that in sentencing a young offender, less weight is to be given to matters such as retribution and deterrence and more weight to fostering the offender’s rehabilitation.

  2. While this offender is not a youth, the majority of the offending occurred when he was in his late teens, with the immaturity and lack of impulse control that often is associated with that age group. In my view therefore the considerations referred to by Hodgson JA are of real relevance in this sentencing exercise.

DETERMINATION

  1. In determining the appropriate sentence I have had regard to the principles of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the so-called threshold referred to in s 5 of that Act is crossed in relation to all offences; in other words that a term of imprisonment is the only appropriate penalty.

  2. As I have already noted, there are a number of Form 1 documents to be taken into account, those in relation to sequence 15, 17 and 19. Form 1 matters can operate to increase the weight to be given to personal deterrence and community entitlement to extract retribution, but it is for the Court to determine, based on the circumstances of the particular case, whether they should have that effect in the particular case; see Lloyd v R [2022] NSWCCA 18 per McCallum JA at para 13.

  3. In this regard I note that the offence on the Form 1 attached to sequence 15 involved an act of fellatio which was part of the same incident in which the offender performed cunnilingus on, and then had penile vaginal intercourse with, LC who was 13 years old. In these circumstances, while the Form 1 offence cannot be ignored, it really formed part of the same acts of criminality and in my view the Form 1 offence should result in only a nominal increase in the penalty to be imposed for sequence 15.

  4. Furthermore, given that the sequence 13 offence was also part of the same incident, the sentence for that offence ought to involve only a limited degree of notional accumulation.

  5. The sequence 18 offence involving fellatio, which is to be taken into account in sentencing for sequence 17, also formed part of what was really a single incident of sexual assault on AS at Dee Why beach. In those circumstances the sequence 18 offence on the Form 1 should result in only a nominal increase in the penalty for the substantive sequence 17 offence.

  6. In sentencing for the sequence 19 offence against MP, I take into account two admitted offences on a Form 1. These are for sequence 12, the sexual touching offence, and the sequence 6, sexual touching offence. The sequence 1 matter in which the offender sucked the nipple of MP was part of the same incident during which the offender penetrated MP’s vagina with his fingers and should result in only a nominal increment in the penalty for the substantive offence in sequence 19. However, the sequence 6 sexual touching of MP’s vagina occurred on a different occasion and should result in some positive increase in the sentence for sequence 19.

  1. I intend to impose an aggregate sentence.

  2. As I am imposing an aggregate sentence I am required to set out what are called indicative sentences, that is, the sentences for each of the offences which would otherwise have been imposed had I not imposed an aggregate sentence. In determining the indicative terms and the overall aggregate term and non-parole period I have had regard to other cases to which I was referred by counsel for the offender and also to statistics on the Judicial Information Research System but with the caution that needs to be applied to this sort of material.

  3. The indicative terms which I nominate are as follows. I note that these are not the ultimate sentence. I will make the ultimate sentence clear in a few moments. The indicative terms are as follows and I note that all of these are terms of imprisonment which are calculated after taking into account the 25% discount for the pleas of guilty.

  4. For the sequence 13 offence, the indicative term is two years three months with a non-parole period of 15 months. For the sequence 15 offence, two years seven months with a non-parole period of 17 months. For the sequence 16 offence, two years three months. For the sequence 17 offence, two years four months. For the sequence 19 offence, two years four months. For the sequence 20 offence, two years six months, and for the sequence 21 offence committed when the offender was 17 years of age, two years.

  5. I note of course that in setting those indicative terms for sequences 15, 17 and 19 I have also taken into account the matters on the Form 1 documents.

  6. I make a finding of special circumstances based on the offender’s relative youth and the need for him to be monitored in the community for a considerable period after his release, as well as this being his first period of full-time custody.

  7. I have given close consideration to the appropriate aggregate term and non-parole period. This of course does not involve simply adding up the various indicative sentences to reach a total. It requires careful attention to totality principles, including whether and to what extent there should be any notional accumulation, while balancing this against the need to impose appropriate punishment, but punishment that does not amount to an inappropriately crushing sentence.

  8. In this matter the ultimate sentence must reflect the fact that there are seven separate offences and five victims. The sentence needs to reflect the seriousness of each offence and the undoubted harm done to the victims, but also take into account the offender’s relative youth at the time of offending and the fact that he is still only a young man.

  9. In applying totality principles I must, however, try to avoid the perception that a discount is being given for multiple offending, but also reflect and balance the various other factors to which I have referred and the purposes of sentencing set out in s 3A. Obviously some of these factors to which I have made reference pull in different directions, which makes this and many sentencing decisions a difficult exercise.

  10. I convict the offender of each of the substantive offences.

  11. I am required to give a warning to the offender under the Crimes (High Risk Offenders) Act 2006. I am obliged to tell Mr Spyridakos this, that is the existence of the Act to which I have just referred which applies to “serious offences” including the offences for which he is to be sentenced. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence. Mr Spyridakos, it is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of serving your sentence.

  12. I impose a head sentence of eight years six months. I set a non parole period of four years nine months. Those terms will commence on 28 April 2021. The head sentence therefore will expire on 27 October 2029 and the non-parole period will expire on 27 January 2026.

  13. Mr Averre, Mr Crown, any obvious errors, matters that I have missed?

  14. RIXON: Not from the Crown’s point of view, your Honour.

  15. AVERRE: No, your Honour.

  16. HIS HONOUR: Thank you, the Court will adjourn.

**********

Amendments

29 September 2023 - Amended date of birth.

Decision last updated: 29 September 2023

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37