R v Stokes

[2024] NSWDC 405

District Court

New South Wales

Medium Neutral Citation:

R v Stokes [2024] NSWDC 405

Hearing dates:

2 May 2024, 18 June 2024.

Date of orders:

14 August 2024

Decision date:

14 August 2024

Jurisdiction:

Criminal

Before:

Bennett SC ADCJ

Decision:

See [167]

Catchwords:

Crime – Sentencing – Aggregate Sentence – Guilty Plea – Act of indecency on underage person – Dance Teacher.

Legislation Cited:

Crimes Act 1900

(Sentencing Procedure) Act 1999

Cases Cited:

Tepania v R [2018] NSWCCA 247

Muldrock v The Queen [2011] HCA 39

Markarian v R [2005] HCA 25, (2005) 228 CLR 357

Cheung v R [2001] 209 CLR 1

R v Olbrich (1999) 119 CLR 162

Savvas v The Queen (1995) 183 CLR1

R v Issacs (1997) 41 NSWLR 374

Milliner v R [2019] NSWCCA 127

Category:

Sentence

Parties:

Benjamin Jay Stokes (Defendant)
The Crown (Prosecution)

Representation:

Counsel:
Mr. Hooper (Defence)

Solicitors:
Shirin Razi (Defence)
Office of the Director of Public Prosecutions

File Number(s):

2021/289945, 2021/342968, 2022/260382

Publication restriction:

Suppression order re identity of complainants. Non-publication order re identity of complainants.

JUDGMENT

1. Benjamin Jay Stokes was presented for trial by jury upon an indictment alleging the following offences.

Counts One and Two

Between 1 January 2012 and 20 September 2012 at Mount Annan in the State of New South Wales did assault DW and at the time of the assault committed an act of indecency on DW and at the time of the offence DW was under the age of 16 years, namely nine or ten years.

S 61M(2) Crimes Act 1900.

Counts Three, Four, Five and Six

Between 1 May 2013 and 31 December 2013 at Elderslie in the State of New South Wales, being an adult engaged in conduct that exposed indecent material to DM, being a child under the age of 14, namely 12 years of age, with the intention of making it easier to procure DM for unlawful sexual activity with Benjamin Stokes.

S 66EB(3) Crimes Act 1900.

Count Seven

Between 1 May 2013 and 31 December 2013 at Elderslie in the State of New South Wales did intentionally meet with a child, namely DM, who Benjamin Stokes had groomed with the intention of procuring DM for unlawful sexual activity.

S 66EB(2)(a) Crimes Act 1900.

Count Eight

Between 1 May 2013 and 31 December 2013 at Elderslie in the State of New South Wales did assault DM and at the time of the assault committed an act of indecency on DM and at the time of the offence DM was under the age of 16 years, namely 12 years of age.

S 61M(2) Crimes Act 1900.

Counts Nine and Ten

Between 31 May 2014 and 31 December 2014 at Mount Annan and elsewhere in the State of New South Wales, being an adult engaged in conduct that exposed indecent material to JK being a child under the age of 14, namely 13 years of age with the intention of making it easier to procure DM for unlawful sexual activity with Benjamin Stokes.

S 66EB(3) Crimes Act 1900.

Count Eleven

Between 1 January 2013 and 1 January 2015 at Smeaton Grange in the State of New South Wales did assault JK and at the time of the assault committed an act of indecency on JK and at the time of the offence JK was under the age of 16 years, namely 13 years of age.

S 61M(2) Crimes Act 1900.

Count Twelve

On 12 July 2014 at Mount Annan in the State of New South Wales did assault AC and at the time of the assault committed an act of indecency on AC, and at the time of the offence AC was under the age of 16 years, namely 14 years old.

S 61M(2) Crimes Act 1900.

2. The Crown case was that the accused committed the offences when operating a dance studio for children. Each of the complainants attended the dance studio. The trial did not proceed to verdict. During his cross-examination, the accused pleaded guilty to all counts on the indictment in the circumstances discussed below.

The Course of the Trial

3. The trial came before me on 30 January 2024 but a panel from which to select the jury was not available. After preliminary discussions including with reference to challenges to some of the evidence the Crown intended for the trial it was adjourned to the following day.

4. The offender contested all of the twelve charges upon which he was presented with counsel in the discharge of his duty conducting cross-examination in which it was put to the complainants that their evidence asserting that the offender had engaged upon the misconduct they alleged was false. The offender gave evidence consistent with the cross-examination but partway through the Crown announced that continuing investigations of the devices seized from the accused revealed material consistent with evidence adduced from the complainant DM, challenged on behalf of the accused in cross-examination and denied by him in his evidence. It was apparent that the accused was not entirely truthful and accurate in his evidence including in the face of cross-examination and there could be no conclusion but that he lied about those matters in his evidence-in-chief and in response to cross-examination.

5. The counts brought upon the allegations by DM were Count Three to and including Count Eight.

6. In due course the accused pleaded guilty to all counts and asserts in mitigation of sentence that this reflects contrition and remorse. To ensure fairness in the assessment of that proposition which the Crown challenges it is appropriate that I refer to the proceedings from when the disclosure of material was made.

7. The Crown announced the discovery of the material at the commencement of the 14th day of the trial, 19 February 2024, when the accused was part way through cross-examination and after the Crown had dealt with the accused’s evidence to which the material related. The Crown sought time to discuss the information with the accused’s counsel and consider options. I granted this and resumed later in the morning. I have drawn the following summary of what occurred thereafter from the trial transcript, beginning at p 811 at which point the hearing resumed.

8. The Crown indicated that more time was needed but was in the position to advise that over the weekend a technically qualified police officer of his own volition and without the Crown’s knowledge conducted further inquiries after propositions were put to him in cross-examination. Those inquiries were continuing. They included access to a laptop computer seized in the investigation from possession of the accused and the discovery of relevant material including:

1. A message between the accused and DM;

2. Indecent images sent by DM to the accused;

3. Images of a young person in a shower and in stages of undress, one of them identified as an image of DM. This carried the implication of further complainants who might be discovered upon further investigation.

9. The material indicated the possibility of further offences and inquiries therefore continued. The Crown advised that the parties were vigorously exploring options to avoid the termination of the trial which neither desired.

10. In the exchanges between counsel and the bench the following matters were explored:

1. The parties were in discussion to find a course that would ensure fairness to both sides in the interests of justice;

2. The Crown case was closed and the accused was partway through cross-examination;

3. The accused had presented his case so far upon the material with which the Crown presented him;

4. In cross-examination, with the Crown now alert to the further material challenging his evidence, to use the word offered by the Crown, the accused was “hamstrung”;

5. The parties discussed resolutions which the Crown submitted were sensible, available at law, and broadly in the interests of justice without prejudice to either party if there were appropriate directions to the jury;

6. If the accused pleaded guilty to any or all of the counts concerning DM, the evidence of those offences would remain as tendency evidence only with care to be taken with the remaining cross-examination not to prejudice the accused by reason of the evidence now uncovered, which might extend to other complainants;

7. If this were the course chosen, the accused’s pleas of guilty could be taken in the absence of the jury, then to be discharged in relation to those counts without explanation, but with a direction not to speculate, leaving the evidence of those offences for tendency purposes only. The Crown submitted that I had power to take this course;

8. I offered the view that the reason for the discharge in respect of those counts ought not to be withheld from the jury. The Crown submitted that the proposal compared with what would occur if the accused pleaded guilty to some charges at the commencement of the trial, which he was entitled to do. The Crown submitted that it could rely upon the evidence of those offences without reference to the pleas of guilty. The Crown conceded that it would forego the pleas as admissions of proof of the conduct upon which the admitted counts were brought. The Crown acknowledged the risk of consequences should this course be taken and the accused’s further evidence is inconsistent with the pleas of guilty or he sought to maintain denials pertaining to DM;

9. I expressed my concern that the accused had already given evidence rejecting the assertion that he had misbehaved toward DM, which had to be corrected before the jury in some fashion that would not prejudice him in their consideration of the remaining counts. I consider that the course proposed would have certainly diminished if not destroyed the accused’s credibility in the assessment of his denials of wrongdoing against the remaining complainants;

10. The proposal, which I understand was presented jointly, was that the pleas of guilty to the charges involving DM be entered in the absence of the jury, and the jury told that those charges are no longer before them, with a strong direction not to speculate as to why, leaving the evidence of those offences before the jury for tendency purposes. The jury could not be told on behalf of the accused that those counts remained in issue in the trial;

11. The accused’s counsel acknowledged that he had limited instructions at that point and needed more time to advise his client. The trial was adjourned to the following day after further discussion.

12. Before adjourning I discussed considerations that came to mind:

1. The Crown might apply to reopen its case and call this evidence. If that application be granted, is there unfairness to the accused who has defended the trial upon a particular factual scenario relevant to DM according to the evidence of facts as were presented, which, if the jury accepted the further evidence, would indicate those instructions relating to DM were fallacious;

2. Would it not be improper for the Crown to conduct their case in such a fashion so as to lay a snare for the accused, but if happenstance led to the same outcome, is it just for the accused to be able to avoid the evidence of misconduct;

3. For the accused’s trial to be terminated, and the Crown starts afresh with all the material available, the accused has the opportunity to meet it, but with the possibility of further charges for child abuse material shown to be in his possession, albeit published by the complainant child to him;

4. If the accused pleaded guilty to the charges pertaining to this complainant, with evidence of tendency arising from those charges and explanation to the jury about the charges that are no longer before them for reasons about which they must not speculate, though the evidence remains for the tendencies for which the Crown contends, it remained that the accused had given evidence-in-chief and in cross-examination which, assuming the veracity of this further evidence, must have been false. This impacts soundly upon his credibility with regard to the remaining charges on the indictment;

5. An option which I made clear was not in any way to encourage settlement of the proceedings, was an indictment with some of the offences put on a Form 1 which would require consideration of the presentation of the other witnesses in the trial and significant delay and inconvenience of the jury and unfairness to the accused;

6. The Crown conceded that it would be difficult to undo unfairness that arises from an accused having prepared a case, cross-examined a complainant, given evidence and been cross-examined about a particular state of affairs on the prosecution brief, to be confronted at the heel of the hunt with further inculpatory evidence;

7. I observed regarding DM, if an accused person takes his chance and gives the evidence about a particular topic the subject of a charge, and is found to be dishonest, that is a consequence and a risk to be faced. However, the concern remained with respect to the other counts the subject of pleas of not guilty before the jury.

13. The Crown said it would not at the time apply to reopen its case, but in the event of the accused providing any further evidence at all inconsistent with the present state of affairs that he now understands, it would be met with a Crown application to either reopen its case or call a case in reply.

14. I stood the matter down until 2:00pm to allow research and for the accused’s counsel to take instructions. I informed the jury that I was faced with a legal question. The Crown position at that point was that the trial might continue, and assuming that the accused did not say anything inconsistent with the facts now known, then his evidence would remain with the jury untarnished despite the existence of the additional material. I understood this to be on the premiss that the accused pleaded guilty to the affected counts with the Crown withholding reference to those pleas to avoid misuse by the jury.

15. Significantly, the Crown conceded that the conduct the subject of the charges pertaining to DM was not in respect of the material discovered, which was of images of DM relevant to the nature of the relationship which the accused, upon the Crown case, sought to exploit, including the publication of the images by the complainant at the accused’s behest, which the accused soundly denied.

16. The Crown urged, correctly, that any plea to a count on the indictment whilst others were to be defended should be taken in the absence of the jury.

17. The accused’s counsel acknowledged the limitations he faced from the Crown’s use for tendency purposes of the facts relevant to a count resolved with a plea of guilty.

11. Before resumption with the jury counsel advised that the accused sought an adjournment overnight to reflect upon his advice to which the Crown consented. I granted the application and released the jury until the following day.

12. When the Court resumed the next morning, 20 February 2024, the accused’s counsel asked for the accused to be arraigned once more. This occurred in the presence of the jury and he pleaded guilty to all counts on the indictment.

13. Thereafter upon the Crown application, I ordered the offender be detained. I adjourned the proceedings for the hearing on sentence. This occurred on 18 June 2024 via AVL to the District Court Dubbo where I was sitting at the time, presiding in trials specially fixed.

14. The material on sentence was tendered and the offender gave evidence. After submissions the proceedings were adjourned for judgment and the imposition of sentence to 5 July 2024, but due to the continuation of the trial involving multiple vulnerable witness in the District Court at Dubbo and other proceedings in which I was called as a witness in that week, the hearing was relisted to 14 August 2024 to be delivered via AVL from Albury where I am presently deployed.

Pre-Sentence Custody

15. The offender has been in custody since 20 February 2024. The aggregate sentence I am about to impose in accordance with s 53A Crimes Act 1900 is commenced on that date.

Discount for Pleas of Guilty

16. Notwithstanding that the offender’s decision to plead guilty to all counts on the indictment when he faced the use of evidence found on his device revealing his lies in evidence-in-chief and in cross-examination, he is entitled to a discount for the utility they provided in accordance with s 25D Crimes (Sentencing Procedure) Act 1999. I shall allow a discount of 5% to each of the individual sentences that would have otherwise been imposed.

17. I note that s 25D(2) of the Act provides the discounts that are to be applied where an offender pleads guilty before a magistrate in committal proceedings, which may be reduced from 25% to 10% if the offender was committed for trial and pleaded guilty at least 14 days before the first day of the trial or complied with pretrial notice requirements. A reduction of 5% in any sentence is to apply in circumstances where s 25D(2) paras (a) or (b) do not apply.

The Maximum Penalties

18. The offences charged in Counts One, Two, Eight, Eleven and Twelve contrary to s 61M(2) Crimes Act 1900, now repealed, have a maximum penalty of ten years imprisonment with a standard non-parole period of eight years imprisonment for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

19. Counts Three, Four, Five, Six, Nine, and Ten contrary to s 66EB(3) Crimes Act 1900 have a maximum penalty of 12 years imprisonment with a standard non-parole period of five years imprisonment.

20. Count Seven contrary to s 66EB(2)(A) Crimes Act 1900 has a maximum penalty of 15 years imprisonment and a standard non-parole period of six years.

The Significance of the Standard Non-Parole Period

21. The provisions introducing standard non-parole periods which must be considered are set forth in Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39 adopting the principles enunciated there.

1. Section 54A(1): the standard non-parole period for an offence is that which is included in the table to the provisions.

2. Section 54A(2): the standard non-parole period represents the non-parole period for an offence in the table, considering only the objective factors affecting the relative seriousness of that offence, which falls within the middle of the range of objective seriousness.

3. Section 54B(2): the standard non-parole period is a matter to be considered when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.

4. Section 54B(3): the Court must record its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period identifying each factor taken into account.”

22. The objective gravity will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.

23. In Tepania v R [2018] NSWCCA 247 Johnson J, with whom Payne JA and Simpson AJA agreed, summarised these propositions and continued at para 111:

“In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised in common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Motive for the commission of an offence is an important factor on sentence.”

24. His Honour continued at para 112:

… The term ‘moral culpability’ has been used (in the somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v R(No 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed that at (476, 477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may eliminate moral culpability.

25. His Honour added that an offender’s moral culpability might mean that retribution and denunciation did not require significant emphasis.

26. The fixing on the. non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle, or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered reasoning when assessing sentence but must identify all relevant matter bearing upon the question of the appropriate sentence by way of intuitive synthesis discussed for example by McHugh J in Markarian v R [2005] HCA 25 now reported( 2005) 228 CLR 357. The relevant remarks appear at p 378 in the authorised report.

27. The standard non-parole period and the maximum penalty are legislative guideposts for the sentencing Court along with other established sentencing practises and by reference to relevant factors from ss 3A, 21A, 22, 22A and 23 of the Act where appropriate.

28. I will in due course deal with assessment of the objective seriousness of each of these offences, some of which I find are within the middle range of objective seriousness. It does not follow however that upon that finding alone that the standard non-parole period is to be adopted for the offence falling within that category. As I have sought to explain, the determination of what is the appropriate sentence and non-parole period requires an intuitive synthesis of all of the material that is presented to the Court for the determination of sentence and most often results in a non-parole period which is to varying degrees below the specified standard non-parole period for the offence.

The Facts

29. Due to the turn taken in the trial when the offender was in evidence in his case, and without an agreed statement of facts, it is necessary to find facts upon which to determine sentence. It is well established that my task is to find the facts upon which to determine sentence consistent with the pleas of guilty and according to the evidence. Where there might be controversy I am not bound to proceed upon facts that most favour the offender, but those which inform the objective seriousness of the offences must be proven to the standard beyond reasonable doubt and those which the offender would advance in mitigation would be accepted if proven upon the balance of probabilities: Cheung v R [2001] 209 CLR1; R v Olbrich (1999) 119 CLR 162; Savvas v The Queen (1995) 183 CLR1; R v Issacs (1997) 41 NSWLR 374.

30. Helpfully, in this instance the Crown provided a document advancing the facts upon which it says sentences should be determined and written submissions, with an outline of those facts in response to which the accused’s counsel in his written submissions concedes all matters advanced in paras one through six, eight through 79 and 81.

31. The Crown asserted in para seven, correctly, that unless the offender’s evidence accords with evidence given by the complainants it should be disregarded for the purposes of findings of fact on sentence. By his pleas of guilty the offender acknowledged the falsity of his evidence when he denied each allegation on the indictment. The Crown submitted that the offender should be sentenced on the basis of, inter alia, the facts set out thereafter in the submissions.

32. Although the accused’s counsel did not specifically include in his document or oral submissions reference to this paragraph nothing is advanced to the contrary.

33. The Crown’s submissions summarise the facts for which it contends in paras eight through to 49 of its written submissions with transcript references which I adopt and find to be the facts for the determination of sentence. I note that the accused’s counsel expressly agrees with each of those paragraphs.

Background

34. The offender was born on 26 February 1986. He was owner and primary operator of a Dancing/Performing Arts School first located at Mount Annan and later at Smeaton Grange.

DW (Counts One and Two)

35. DW was born on 19 February 2002. He met the offender in 2009 when in grade 1 at school. The offender taught dance classes at DW’s school. DW took the dance class as an option for school sport. At the end of the year the offender awarded a scholarship to DW for him to dance at the Dancing/Performing Arts School the following year. DW commenced there in 2010.

36. In 2012 the school undertook a holiday dance tour of the United States of America and Mexico from 20 September 2012 to 14 October 2012. DW’s family could not afford the cost of either his parents to go on the trip which, when he communicated to the offender, led to arrangements for the offender to chaperone DW on the trip.

37. Before the trip, around January 2012 when DW was nine or ten years old, he began visits to the offender’s house to spend time with the offender to feel more comfortable with him before the tour. DW estimated that he attended the offender’s house about half a dozen times between February 2012 and September 2012 in preparation for the trip. He usually visited on a weekend during the day and stayed into the evenings.

38. Count one, (Aggravated indecent assault).

39. The events founding Count One occurred when DW visited the offender’s home. DW recalls he was aged ten years. When DW and the offender walked from the kitchen into his lounge room the offender initiated a conversation about kissing and showed DW how to do it. Immediately after this conversation the offender kissed DW’s mouth such that DW could feel the offender’s tongue. The kissing lasted about ten seconds.

40. Count two, (Aggravated indecent assault).

41. In 2012 when DW was ten years old he was again at the offender’s home sitting on the offender’s lap in the lounge room watching television. The offender had his hand down the front of DW’s pants and underpants and touched him on the penis. DW tried to slide lower down so that the offender’s hand would not touch his penis but the offender moved his hand back onto it. The offender asked, “are you comfortable?” and DW replied “no.” The offender stopped and removed his hand from DW’s pants.

42. Complaint

43. At the end of 2018 DW left Commotion and commenced with another troop. He reported the matter to police in June 2021.

DM (Counts Three – Eight)

44. DM was born 6 March 2001 and was a student at Commotion in 2010 when in grade 4. He attended classes at Commotion taught by a male he recalled as “Jett” for about six months before deciding that he did not enjoy it and stopped attending. When dancing at Commotion DM saw the offender from time to time at the studio but he was never directly taught by the offender.

45. In August 2013 DM sent a Facebook message to the offender outlining that he was friends with some of the students at Commotion and that he was interested in returning to the school. DM did not resume classes at Commotion from that point but he and the offender would message each other thereafter. The offender and DM had contact by Facebook Messenger at least every other day.

46. After messaging for some time the offender began to comment on DM’s appearance with such as, “you are handsome” and about DM being the offender’s type and that he found DM attractive. After a time the offender started to send DM “selfies” of his face and asked for photos of DM’s face in return. DM complied. The offender began sending DM messages that DM considered flirting. They evolved to the offender describing sexual fantasies involving sexual acts with DM.

Count Three, (Groom a child under 14 years for unlawful sexual activity)

47. Count three arose from when the offender sent a photograph of his penis to DM and wrote words to the effect of, “did you like it?” and, “what do you think of my penis?” and, “do you find it hot?” The offender persisted with requests for DM to send him a photo of his penis and within a week DM took a photograph of his penis and sent it. As time went on the offender sent DM photographs of the offender lying naked in bed, standing completely naked in front of a mirror and masturbating.

Count Four (Groom child under 14 years for unlawful sexual activity)

48. Count Four arose from when the offender sent DM a video approximately ten seconds in length of him breathing heavily, lying naked in bed. DM was offended and scared by this. DM was 12 years old.

49. The offender attempted to persuade DM to send a similar video back. He sent some of the photographs and videos to the offender including videos of him in the shower masturbating.

Count Five, (Groom child under 14 years for unlawful sexual activity)

50. Count Five arose from when the offender sent a photograph of his flaccid penis to DM.

Count Six (Groom child under 14 years for unlawful sexual activity)

51. Count Six arose from a further occasion when the offender sent DM a video of him masturbating and ejaculating. The offender asked DM to reciprocate, DM was 12 years old.

52. In between sending pictures and videos the offender encouraged DM to attend the dance studio as a way to “get close to him” and so that the offender could touch him.

Count Seven (Meet child under 14 years groomed for sexual activity)

53. Count Seven arose from an occasion in 2013 when the offender suggested to DM that they meet. The offender had been messaging DM that he had fantasies of DM being at his house and them naked and doing things together. The offender suggested that DM come to his house however DM was not comfortable doing so but agreed to meet the offender at a park near to where DM lived.

54. When they met on the appointed day the offender wore loose fitting clothing, thongs, and shorts. They hugged each other and walked to a park bench where DM had been sitting. The offender sat down 30 centimetres from DM and they conversed generally. The offender complimented DM on his appearance and appeared to DM to have his focus on DM’s crotch.

Count Eight (Indecent assault person under 16 years of age)

55. During the conversation, the offender stroked DM’s thigh for about ten or 15 minutes. DM felt uncomfortable and awkward. As the offender moved his hands towards DM’s crotch area DM flinched and adjusted his position. The event ended when the offender indicated that he needed to attend to errands.

56. DM Reports the Matter to the Police

57. DM reported these events to police after becoming aware through media that the offender was charged with sexual offences.

JK (Counts Nine – Eleven)

58. JK was born on 9 January 2001. He met the offender when he was nine years old and in grade 4 in or around 2010. In that year JK was taking singing lessons which moved to the Commotion studio at Mount Annan. There he met the offender and started taking dance lessons also at Commotion from 2011 onwards. JK attended classes at Commotion anywhere from one to four days each week and attended competitions held on the weekends.

59. In around 2013 or 2014 the offender began messaging JK by text, on Snapchat and Facebook Messenger. JK was 12 or 13 years of age. The messages were about personal things and progressed into conversations with a sexual overtone.

Count Nine (Groom child under 14 years for unlawful sexual activity)

60. In June or July 2014 the offender sent JK a photo of an erect penis. The offender asked JK what he thought about it. He asked JK to send him pictures and asked if he could do something in person. After a few days of the offender messaging him and requesting images JK sent a picture of his penis.

Count Ten (Groom child under 14 years for unlawful sexual activity)

61. The offender sent JK videos of him masturbating and ejaculating. He sent a video of him masturbating and ejaculating on his stomach. The video depicted the offender’s face. JK was 12 or 13 years old.

Count Eleven (Indecent assault person under 16 years of age)

62. Between July 2014 and October 2014 JK was in a group class at Commotion at the new Smeaton Grange location. The offender had messaged JK in the fortnight before this incident saying he wanted to touch JK. The offender approached JK in class and asked him to come to get measured for a costume. The offender led JK to an upstairs mezzanine level of the studio where the costumes were stored. The offender put his hand on JK’s back and guided him into a row of costumes. When JK turned around the offender embraced JK, put his hand down, and rubbed JK’s genitals in a circular motion for one or two minutes over JK’s clothing. When the offender stopped JK returned to his class.

63. JK Reported the Matter to the Police

64. After hearing through social media that the offender was before the Court for similar matters JK decided to report the matter to police.

AC (Count 12)

65. AC was born on 13 August 2000 and 11 years old when he started dance lessons at Commotion. AC would attend the classes three to four days per week. Count Twelve arose from an occasion when AC attended the offender’s home at Mount Annan for a ‘Games’ night with two other Commotion students. AC’s parents dropped him there. When they did there were no others there with the offender. AC was 14 years of age. The offender and AC sat on the lounge and watched the television show “Friends”. AC sat on the offender’s right on the lounge. The offender touched the skin on the inside of AC’s right thigh with his left hand. He rubbed his left hand up and down AC’s left thigh very close to his groin. AC was wearing shorts. The contact was skin on skin. The incident ended about the time another student from Commotion arrived at the house.

66. AC Reports to Police

67. When AC’s mother showed him an article on social media about the offender’s arrest AC told her what had occurred and they reported the incident to police.

The Objective Seriousness of the Offences

The Crown

68. The Crown’s written submissions include the gravity of these offences for which it contends and identify factors relevant to the determination of objective seriousness. Those for offences of indecent assaults against children include:

1. The character of the assault including the intrusiveness of the acts;

2. The age difference between the offender and the child;

3. The time over which this conduct occurred;

4. The extent of any physical harm.

69. For the offences of procuring for sexual activity the factors identified are:

1. The nature of material exposed to the victims;

2. The type of sexual activity envisaged by the offender;

3. Whether money or other inducement was offered;

4. The persistence and the time over which the conduct persisted;

5. The age of the victim and the extent of any age disparity;

6. Any steps taken to preserve anonymity;

7. The period between the conversations for securing a meeting and the meeting.

70. Applying these considerations to the specific counts the Crown submits the following:

Count One

71. This falls at the midrange of objective seriousness for these reasons:

1. The nature of the act of kissing with insertion of the offender’s tongue into the victim’s mouth. The Crown referred to Milliner v R [2019] NSWCCA 127;

2. This invaded the victim’s bodily integrity. The offender was the victim’s dance teacher;

3. The victim was at the offender’s home for the purposes of becoming comfortable with him prior to the trip to the United States of America;

4. The offending was a gross breach of trust;

5. The victim was aged nine or ten years and significantly under the 16-year age limit contemplated by the section;

6. The offender was aged about 35 years and thus very much older than the victim.

72. Determining where an offence falls on the range of seriousness in the exercise I am undertaking is always a matter of judgment and minds will differ legitimately according to the perception and understanding of material that is presented.

73. The Crown’s proposition that this falls at the midrange of objective seriousness I do not accept but I am of the view that it is not far below where the midrange of objective seriousness is to be found for this offence, or to put it another way, I find this offence to be just below the midrange of objective seriousness.

Count Two

74. This falls above midrange of objective seriousness for the following reasons:

1. The offending involved skin on skin contact with the genitals of the complainant;

2. The offender persisted in his conduct after the complainant shifted positions to stop the offender continuing;

3. The victim was in an intimate position seated on the offender’s lap with no others present;

4. The offender was the victim’s dance teacher and the victim was at the offender’s home to become comfortable with him before the trip to the United States and thus a gross breach of trust;

5. The victim was aged nine or ten years and that is significantly under the 16-year-old age limit contemplated by the section;

6. The offender was aged about 35 years and that is very much older than the victim.

75. I would place the objective seriousness of this offence at or slightly above midrange.

Count Three

76. The Crown submits that this is within the midrange of objective seriousness for offences of this type:

1. Sexual activity envisaged by the offender was contact sexual acts directly with DM. In addition to sending the image of his penis the offender attempted to engage with the victim with questions about the image;

2. For at least one week the offender persisted asking the victim to send a photo of his penis. The offending was not isolated considering that the offender continued to send photographs of him lying naked on his bed, before a mirror and of him masturbating;

3. DM was 12 years old and the offender was at least 36 years of age.

77. I agree with the Crown’s assessment that this offence is within midrange of objective seriousness.

Count Four

78. This is at the midpoint of objective seriousness the Crown submits:

1. The sexual activity envisaged by the offender was contact sexual offending with DM;

2. The material sent by the offender was a video of him lying naked in the bed and breathing heavily which left the victim feeling scared. The offender persisted asking the victim to send a similar video of him to the offender. DM sent similar photographs and videos to the offender. These included videos of DM in the shower or masturbating;

3. The offending was not isolated;

4. DM was 12 years old and the offender was at least 36 years of age.

79. At this point of the ex-tempore delivery of the judgement the offender’s counsel rose to correct an error made regarding the offender’s age, and to remind me that the offender now about 38 and at the time of the offences would have been around 24 to 26, and not 35 or 36 as written in the Crown submissions. I noted that this would not impact ultimately upon the outcome but was important for the consideration to be given to the material tendered on behalf of the offender from the health care professional and his father.

80. I agree with the Crown’s assessment made in respect of Count Four.

Count Five

81. In respect of count five the Crown contends that this is at midrange objective seriousness with which I agree:

1. The image relied upon is a single image of the offender’s flaccid penis but the context in which it was sent was to have the victim send the offender a photo of his own flaccid penis;

2. The offending was not isolated;

3. DM was 12 years of age and the offender was - I will say about 26 years of age subject to correction once I review the calculation.

Count Six

82. This is said to be above midrange of objective seriousness, a proposition with which I agree. The reasons advanced by the Crown are:

1. The offender sent the victim a photo of him masturbating and asked the offender to reciprocate;

2. The offender continued to encourage DM to attend Commotion to have the opportunity to touch him;

3. DM was 12 years old and the offender was within the range of 26 years of age.

Count Seven

83. The Crown submits this above midrange of objective seriousness with which I agree:

1. The sexual activity contemplated by the offender was direct sexual activity with the victim in the offender’s home, avoided because the victim refused to travel to the offender’s home whereupon the meeting took place in a public park;

1. There were multiple messages enjoining the victim to meet the offender which occurred after multiple messages exchanged indecent material;

2. DM was 12 years of age and the offender was in the vicinity of 26 years of age at the time.

Count Eight

84. The Crown submits that this falls below the midrange of objective seriousness. I agree with this assessment:

1. The contact was skin on skin but confined to the complainant’s thigh area and persisted for ten to 15 minutes;

2. DM was 12 years old and the offender was in the vicinity of 26 years of age at the time.

Count Nine

85. The Crown submits that this falls within the midrange of objective seriousness. I agree for the following reasons:

1. The image sent by the offender was of an erect penis accompanied by messages inviting the victim to comment upon the image;

2. Over a number of days the offender asked the victim to reciprocate and he did;

3. JK was 12 or 13 years old and the offender was in the range of 27 to 28 years, subject to correction;

4. The offender was the victim’s dance teacher and thus a gross breach of trust;

5. The sexual activity contemplated by the offender is unclear but involved at least doing something with the victim and inferentially by reference to count eleven involved at least fondling the victim’s genitals.

Count Ten

86. The Crown contends that this is a midrange with which I agree:

1. The offender sent the victim a video of him masturbating and ejaculating onto his stomach;

2. JK was 12 or 13 years old and the offender was 27 or 28 years of age, subject to correction;

3. The offender was the victim’s dance teacher and thus a gross breach of trust;

4. The sexual activity contemplated is unclear but involved at least doing something with the victim and inferentially involved at least playing with the victim’s genitals.

Count Eleven

87. This is said to be above midrange of which I agree:

1. The sexual conduct involved touching of the victim’s genitals in a secluded location within the dance studio;

2. The touching was not spontaneous since the offender messaged the victim telling him that he wanted to touch him;

3. The conduct was between one and two minutes;

4. The conduct was not skin on skin but involved rubbing of the victim’s genitals;

5. JK was 12 or 13 years old and the offender was 27 or 28 years of age.

6. The offender was the victim’s dance teacher and that is a gross breach of trust.

Count Twelve

88. I agree with the Crown’s assessment that this is below midrange of objective seriousness:

1. The touching was confined to the inner thigh, although albeit skin on skin contact and very near the victim’s genitals;

2. The victim was aged 14 years and the offender aged 23 or 24 years of age;

3. The offender was the victim’s dance teacher and the offending involves gross breach of trust.

The Offender

89. The offender’s counsel provided written submissions challenging the assessment of objective seriousness offered by the Crown upon which I have already made comment.

90. Regarding the grooming offences he warned against misinterpretation of the offender’s conduct towards the victims DW, JK and AC as entirely to groom them for his sexual purposes. I am asked to accept the offender’s evidence and what is said on his behalf that he cared for these victims as friends and their progress as dancers when part of his dance school but progressively blurred the professional boundaries and confused his connection with them until he crossed into criminal conduct.

91. Once the offender crossed the line he ceased persisting in further sexual escalation and grooming. In the case of DW he ceased sexualised conduct before or during the dance tour of the United States but maintained a purely platonic relationship with him as friend and teacher for the years following. The grooming conduct was only to the point of sexual touching of DW to be judged within that period when assessing the objective seriousness.

92. The objective seriousness of the grooming behaviour toward DW did not involve pornographic material or messages, it involved the offender becoming affectionate towards DW initially without sinister intent.

93. Counsel concedes that the offender did not maintain proper boundaries and when he sexually touched the victim on two occasions after inquiring whether DW was comfortable with being touched to which DW said “no” the offender ceased. In those circumstances the offending conduct is at the lower end of objective seriousness. I do not agree with this assessment of objective seriousness as I have already indicated.

94. Regarding AC the grooming ceased when he touched the victim’s leg on one occasion at the offender’s home where the victim attended for a ‘games’ night. The grooming was low level and did not involve sexualised images or overly sexual messaging. The objective seriousness of the offender’s grooming conduct toward AC was at the low range. I have already indicated the assessment I have made of that; I do not agree with the assessment expressed in the terms offered by counsel.

95. Counsel concedes that the grooming of JK was more serious with sexualised images and videos sent with limited sexualised messages leading to one occasion of sexual touching. Counsel submits that the offender’s grooming conduct is between the top end of the low range and the low end of the midrange. I am of the view that the seriousness is greater than this as I have already indicated.

96. Regarding DM counsel concedes this is the most objectively serious grooming conduct with sexualised messaging over months, sending intimate images of his penis, video material of him masturbating, and a request for the victim to reciprocate, which he did. This conduct ceased after they met in the park near DM’s home. It is submitted that this is mid-level. I accept this assessment.

97. Regarding the sexual touching offences against DM when the offender touched the leg of the victim when they met in a park, Counsel submits this was limited and ceased when it was clear that DM did not want to continue. The objective seriousness of this offending conduct is at the lower end of the scale. I do not agree with this assessment.

98. Regarding the sexual touching of AC this was touching of the victim’s leg. The offender moved his hand up and down the inside of AC’s thigh between knee and groin for less than 15 minutes until other students arrived for the ‘games’ night. Counsel submits that the objective gravity of the offending behaviour is at the lower end of the scale. I do not agree with this assessment.

99. Regarding the sexual touching of DW counsel notes that this occurred on two separate occasions, one of a mouth to mouth kiss where the offender inserted his tongue into DW’s mouth; the second where the offender placed his hand inside DW’s shorts and touched his penis for a short period which ended when the victim tried to move away and the offender asked whether he was comfortable to which DW said, “no”.

100. Counsel notes that the offender did not attempt to engage in this conduct again. On both occasions DW was alone in the house with the offender and around ten years of age.

101. Counsel concedes that this offending is at the upper end of the low range of objective seriousness as both incidents were brief and ceased after the victim indicated he was not comfortable. I do not accept this assessment; the objective gravity would be placed somewhat higher.

102. Regarding JK he was touched in the costume room at the dance studio on his penis on the outside of his pants for approximately one minute. The offending conduct only occurred on one occasion. It is submitted that the conduct is at the upper end of the low range, or the bottom of the midrange. I do not agree with that assessment.

103. Counsel concedes that for DW, AC and JK the offender breached his position of trust or authority as their dance teacher and refers me to s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

104. Counsel submits that the offender is unlikely to reoffend given the contents of Dr Rowe’s report that his offending conduct ceased in 2015/2016 and despite widespread publicity, no other complainants have come forward or been found since the period of offending behaviour for the matters before the Court.

105. Counsel submits that the offender has good prospects of rehabilitation given the lack of further offending behaviour since 2015/2016. Counsel submits that the offender demonstrated remorse by accepting his wrongdoing and responsibility for his actions shown partly by his late plea of guilty unconditionally to the offences on the indictment and his apology. He also acknowledged the suffering of his victims including putting them through the process of trial and cross-examination.

106. I note the submissions to which I have just referred are offered upon the evidence that was tendered on behalf of the offender in the sentence proceedings, together with the evidence given by the offender on 18 June 2024 to which I shall come after I take the morning adjournment.

107. Before I proceed further though, with regard to the offending and the suggestion advanced that the misconduct upon which the offender engaged should be viewed strictly within the context in which the offences occurred, with particular reference to the decision by the offender to desist when the complainant or complainants indicated their discomfort, upon my assessment of the material the propensity that the offender has demonstrated for misconduct of this type toward children within his care and in respect of whom he was given trust challenges the proposition that he allowed his perception of the professional relationship to be blurred, and then to embark upon criminal misconduct.

108. His decision to desist in the face of the victim’s discomfort does not in my assessment mitigate against the seriousness of the conduct upon which he engaged and with which I find he would have continued but for their rejection of it. There were multiple victims and a significant if not gross breach of trust reposed in him by the children and their parents, notwithstanding which he sought to exploit the opportunities they presented for his sexual gratification.

109. Further the correction the offender’s counsel sought earlier, the accused was born in 1986 and thus from the beginning of 2012 through to the end of 2015, the period covered by the charges to which he has pleaded guilty, he was aged 25 through to 29 years. I thereupon corrected any erroneous references to the offender’s age.

Victim Impact Statement by DW

110. The material presented by the Crown included a victim impact statement which I have read, provided by DW. it is a comprehensive, extensive document that extends over to a sixth page and contains representations by DW regarding his perception at the time of writing of what had occurred to him and how it had impacted upon his life. I do not intend to refer to the entire document because it is closely typed with a small font and it is extensive but I will note points from it.

111. He has taken antidepressant medication for extended periods of time. He has suffered anxiety, he claims to be constantly worried about saying or doing the wrong thing, being misconstrued, suffering panic episodes and withdraws. He takes time away from his work as a teacher, he has difficulty when he comes into contact with people he knew through the dance school. He asserts that he has intensive hypervigilance and has recurrent memories of the events that manifest in anxiety after the trial process which he found disruptive to his life. He feels disempowered, he sleeps as a refuge from the emotions he suffers. He speaks of the manipulation and tact employed by the offender in the grooming that he experienced. He feels uninspired and incapable of work. He attempts to fill a void with various activities that he articulates in p 4 and he continues to feel his own sense of guilt and shame, fear, revulsion, and sense of powerless arising from these events. He has after ten years begun to seek professional assistance from a psychiatrist and he expresses disappointment with the justice system.

112. The material contained in the document has two purposes. It gives the victim the opportunity to confront the offender with the impact of what he suffered in these offences and it gives the Court the opportunity to have at least some understanding of the impact of the crimes that he suffered. The material is not taken in aggravation of the objective seriousness of the offending or to in any way impact upon what is the appropriate proportionate sentence for the misconduct to which the offender has pleaded guilty, but it has given what I appreciate as the significant part of this, the opportunity for the victim to confront the offender with what he experienced so that the offender will understand the full impact he caused.

113. I do not have evidence from a health professional to support what the victim has told me and I note that because it is a document presented as a victim impact statement there is no opportunity for any test, but that said, I take the document at face value for the limited purpose for which I am allowed to consider it.

The Offender’s Evidence

114. The offender gave evidence before me by AVL when I was sitting at Dubbo. I should note that his evidence followed DW reading his victim impact statement and that meant that the offender had the opportunity to hear what was written in the document.

115. The offender tendered the report from Dr Donald Rowe of 5 June 2024 and the letter written by the offender’s father, bearing the date 17 May 2024. There was no objection to that material and the doctor was not required for cross-examination; nor was Mr Stokes.

116. The offender gave his evidence from p 7 of the transcript and read a letter that was prepared containing information he wanted the Court to accept; the Crown cross-examined him.

117. The cross-examination was effective; the Crown focused upon the stage of the trial at which the offender had denied wrongdoing and denied facts that were later revealed in the material uncovered by the further investigation and the fact that his pleas of not guilty and the instructions to counsel could not have been accurate or truthful in their entirety.

118. He said when called upon to address the decision to plead guilty that his decision had nothing to do with the material that was uncovered by the further investigation - this begins at p 8. He was asked at line 32:

“Q. During the course of that interruption you became aware of the suggestion police had located indecent material on your devices, correct?

A. Yes.

Q. Some of that indecent material related to the victim DM, correct? A. Yes.

Q. And you say that had nothing to do with you deciding to plead guilty, is that your evidence?

A. It wasn’t the main decision - it wasn’t the main deciding factor.

Q. So do you now accept that it was a deciding factor?

A. It was a reminder of how serious this matter was. Having listened to the victims speak and hear their story, I was more aware than ever and feeling more guilt than I have ever before and I understood that I had to face my - face the charges with honesty.

Q. In what way did the discovery on indecent material on your devices assist you to understand how serious the charges were?

A. It stopped the momentum of the trial and gave me a chance to look at myself and my actions.

Q. An opportunity that you did not have in the years between this offending conduct and you were arrested?

A. (No verbal reply)

Q. Is that your evidence?

A. I don’t - can you repeat the question?

Q. Sure. I don’t understand what you’ve told his Honour, this pause in the tempo of the trial allowed you to reflect on the wrongfulness of your actions is that essentially what you’re saying?

A. That’s right.

Q. And you’ve not done that in years between your offending conduct and your arrest?

A. I have done that along the way multiple times.

Q. Just not enough to admit your guilt, is that your evidence?

A. Yes.”

119. He did not agree with the proposition that his change of heart was brought by the discovered material on the device. He accepted that he had breached his undertaking to tell the truth and had lied for days on end through the course of the trial. He accepted that his undertaking to tell the truth on the prior occasions were no different to the obligation he had on the day of this evidence. He conceded at p 9, line 39 that he lied in the trial because he perceived it was to his benefit.

120. And then at line 43 on p 9:

“Q. You understand that that - the intent in giving evidence today is to obtain the best possible sentenced(sic) that you can, do you agree with that?

A. I’m ready to face my punishment and I accept responsibility for my actions.”

Q. You understand that in giving evidence the intent, at least in part, was to secure the best possible result that you can. Do you agree with that?

A. Yes.”

121. The cross-examination by the Crown continued in the course of which he denied having any sexual attraction to the victims and at p 10 he was asked the question:

“Q. So you were sexually interested in DW, do you agree with that?

A. I don’t understand the feelings - I don’t understand - I don’t understand my intentions, but I don’t - I can’t be honest and say that I had sexual attraction towards him.”

He was asked at line 43:

“Q. The reason you’re struggling to answer my questions is because you don’t want to admit that you were sexually attracted to a child, that’s correct?

A. No.”

He was asked:

“Q. What other possible motivation could there have been to put your hand down DW’s pants and touch him on the genitals, not once but twice?

A. I - I am here to accept full responsibility for my actions and I understand those actions. I admit my sexual attraction to JK and to DM. My actions towards DW I don’t think were brought by my sexual attraction to him. I don’t understand those actions but he was not the subject of my attraction.”

122. The overall impact of the evidence is that he, I accept, acknowledged that he had sexual attraction to two of these complainants as I have just described from his evidence, although he disavows the suggestion that he felt the same way towards DW. He also denied feeling sexual attraction towards AC and when asked about that at p 11 line 33 – said, “yes I am I’m not trying to get out of anything here I’m just trying to speak the truth. He was asked,

“Q. What you were trying to avoid is an acknowledgement that you are sexually attracted to children because you know that, that will consequences(sic) for your sentence. Agree, disagree, I don’t know?

A. I disagree. I own my actions.

Q. You might own your actions, but you don’t own the motives do you?

A. No. I don’t understand the motives.”

123. The effect of his evidence thereafter was that he could not rule out sexual attraction to children, but again disavowed any such interest in DW.

124. The offender’s evidence causes some concern.

125. On my assessment of the material before me the offender must have been sexually attracted to these victims to have engaged upon the conduct that he did. It could have no purpose other than sexual gratification.

126. Moreover, I have difficulty accepting that he could not understand his motivations. He presented to me as a person who was confident and intelligent. He had successfully according to the evidence developed and operated a business providing for dancing classes for multiple children, including activities outside of the dancing school. I find it implausible that he would not have appreciated that he was sexually attracted to these children and that this was the motivation behind the conduct upon which he engaged.

127. I accept that it stands to his credit to a limited extent that when they made clear they did not want to participate in any such behaviour he desisted. But the troubling aspect of that is that he had other children to choose from, reflected in the number of complainants that were presented in the trial.

128. His father provided a document as indicated; that was tendered and admitted by consent. He tells me the offender is one of four children. His childhood was filled with birthday parties, holidays and dancing and he began dance classes from the age of three or four. He is said to have had insecurities and that it was years later when his family considered that his overconfidence and energetic nature might be his way of compensating them. He and his wife separated when the offender was 12 or 13 years of age. his impacted upon the offender .

123. He describes how the offender began his business at the age of 14 and that he grew it over the next 20 years to one of the largest dance schools in Sydney. He experienced deep loneliness in his 20s and upon his arrest his life was turned upside down, including the loss of the business to which he had spent so much effort and time to develop.

124. He noted the plea of guilty to the charges. He was taken into custody forthwith upon the detention application by the Crown and has had a difficult time in gaol, including the loss of privacy, the poor food, and the general inadequacy of the accommodation provided. It is a regrettable feature of the system we have that people are confined in such circumstances. I bring that to account but it is not so significant that it will impact greatly upon the outcome in these proceedings.

125. The offender was assessed for the purposes of a sentence assessment report; have that document prepared on 30 April 2024. He is attributed with strong family values with parents and close friends as support. He has stable accommodation which he should be able to access once he is released. His history in the dance industry from the age of 15 is described. He has no prior history of offending and there is nothing before me to indicate that he has ever been charged with a criminal offence. Beneath the heading “Attitude” he is attributed with representations:

• At the time, Mr Stokes stated he did not consider the inappropriateness, nor the seriousness, of his actions towards the victims.

• Mr Spokes admitted there was an interest and attraction to the older victims and that talking on line provided a sense of disconnection from reality and the victims’ ages.

• Mr Stokes reported that he continues to struggle to comprehend what caused him to act in such a manner and described his behaviour as abhorrent and out of character.

132. He is attributed with a denial of any sexual attraction to children. He is said to have struggled differentiating the age between himself and his students which resulted in professional boundaries being crossed. I have difficulty accepting that as plausible.

133. He described ongoing depression, isolation, and low self-esteem through his life. He suffered bullying because of his sexuality as a teenager and before the commission of these offences he said he was at his darkest point and engaged upon manic behaviour to cope.

134. His concession that his behaviour was inappropriate appears to be marred by self-concern and lack of insight into the repercussions of his behaviour and the impact it had upon his victims.

135. He will take part in community service if offered; there is no basis upon which to assess his response to supervision other than for the preparation of the report which was deemed as satisfactory. He is assessed at a medium to low risk of reoffending and there is a supervision plan should that be required at the appropriate time of his release.

136. There is a report from forensic psychologist, Dr Donald Rowe written on 5 June 2024. There is no challenge to his status, qualification and experience as a consultant clinical psychologist and neuropsychologist. The report contains the circumstances of the offender’s background, including the family breakup and the separation of his parents, his struggle at school from bullying. He was, he said, a girly and flamboyant child and had trouble fitting in with sporty types at school. He moved to a high school in the south-west which he said was a miserable experience; he there reached the peak of social isolation, including ongoing bullying. He undertook home schooling until he moved to the Performing Arts High School where things were better.

137. He was never diagnosed with mental health issues but spoke of behavioural traits and his difficulty fitting in with others. He was attributed with various representations concerning the success of his business.

138. In the summary and opinion section of the report it is said that he appears to have displayed an unusually isolated period of paedophilic type behaviour from 2012 to 2014, aged between 26 and 28 years. This is said to be somewhat remarkable given the extensive contact he had with young boys over the period of time beginning in 2001. He might have been diagnosed with a paedophilic disorder, not an exclusive type, between 2012 and 2014. The age of the victims in such a diagnosis are usually aged 13 or younger. He notes that three of these victims were 14 years of age and this suggests that a better prognosis would be hebephilia.

139. He refers to studies and what might be found in the literature concerning contributing factors to child sexual abuse offences. It is suggested that the offensive behaviour appears to have been associated with periods of depression arising from inherent vulnerabilities developed as a child from the fracture of his family and his experiences of bullying at school.

140. There is suggestion that he was diagnosed with autism spectrum disorder, more comprehensively described as high functioning autistic spectrum disorder, Aspergers syndrome. Upon testing he was found to fit this category, consistent with the perception I took of the offender when he gave evidence before me, about which I commented earlier when reflecting upon his apparent capacity and intelligence, which in my assessment challenges the assertion that he did not understand his motivation or emotions when becoming involved in this activity.

141. It is suggested at 7.7 in the report that his conduct could be connected with deterioration in cognitive functioning.

142. In the progress and prognosis section of the report note is taken of his progress beginning with the cessation of the behaviour with which he was charged over a period of time, his self-reflection, and his recognition of his wrongdoing, turning away from his initial denials. He has not sought to make excuses for his dysfunction as it is described. It is noted that he lost his life’s work.

143. He completed the static-2002R which uses variables of age, persistence of sexual offending, deviant sexual interests, relationship to the victims, and general criminality to recidivism. He is said to have been assessed as low risk of sexual recidivism with a score of two out of 13.

144. His risk of further offending can be addressed or reduced perhaps by his willingness to access psychological management. In the concluding remarks of item 9, para 82 the following appears:

In my opinion, the origins of Mr Stokes’ sexual offending behaviour appears to lie in early developmental difficulties commencing with the separation of his parents at age ten years and then the development of his sexual identity as a minority group which led to his alienation in the school yard and years of bullying. This in turn led to poor self-confidence and low self-esteem and a vulnerability to suffering mental illness and being sexually abused himself which ultimately did occur. In his dysfunctional manner without adequate mentoring, guidance and/or maturity he identified with the victims and during the period of poor mental health and associated disinhibition, together with the apparent effects of an autism spectrum disorder, he has disregarded the safety and emotions of the victims, as well as his professional and ethical requirements as a teacher, and subsequently subjected the child victims to forms of sexual abuse.

145. At paragraph 83:

As mentioned, the experience of CSA during childhood and adolescence alone does not cause future engagement in CSA as an adult, but the pattern of experiences consisting of CSA and the subsequent emotional and personality development of the victim, along with poor attachment and neglect can create a vulnerability where these individuals can engage in child sex offences themselves, like that which has occurred in the case of Mr Stokes, particularly when the opportunity arises. In addition, there are other factors contributing to the dysfunction such as an underlying autism spectrum disorder and more severe depressive disorder which further impacts negatively on the capacity to inhibit sexual impulses and behaviours as well as the negative impact of their behaviour on victims, which in dysfunctional manner they normalise, in a dysfunctional manner they normalise based on their own dysfunctional experience.

146. There is no challenge to the opinions offered by the psychologist or the bases and assumptions upon which those opinions were reached, though there is a question of the extent to which the history attributed to the offender led him to pursue sexual activity with these children. Of note in my assessment of the matter is that he was aware of wrongdoing at the time he was committing these offences, reflected in the fact that when they expressed disinterest or discomfort he desisted and did not persist, but pursued activity with other children on some occasions with a measure of assistance until their attitude was finally accepted by him.

147. I accept on the balance of probabilities the diagnoses suggested by the psychologist which explains perhaps his disinhibition in pursuing children in the circumstances which he did. I brought that to account in the assessment of the moral culpability of his misconduct but it does not serve to relieve the offender of the burden of imprisonment which he must face now as a consequence of the wrongdoing upon which he engaged. His capacity to turn away from this conduct when the children demonstrated disinterest or discomfort indicates a capacity not to engage upon any such behaviour at all in my assessment.

Sentence

148. This brings me now to the determination of the sentence. As I indicated I propose to allow a discount of 5% to the sentences that would otherwise be imposed were they to be imposed individually. I intend to impose an aggregate sentence but I am obliged to identify the sentences that would have been imposed had these matters been dealt with individually and because they are standard non-parole period offences I must specify the non-parole period that I would have imposed.

149. I accept that there is a sound basis for finding special circumstances. I accept that it is difficult for the offender experiencing his custodial environment for the first time in his life and I accept that he needs to be properly supervised and have further assistance from health care professionals once he is released into the community. I accept that he has to his credit taken responsibility for the charges that he initially denied and that at least to the extent of the conduct that was alleged of him in the trial he can soundly support opportunities for rehabilitation that will be available to him in the custodial setting.

150. I should observe that all of the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged. There is a need to recognise the harm that has been occasioned in each of these offences. There is a need to ensure that those who might be tempted to engage upon this behaviour might be discouraged from doing so, aware that the outcome will be incarceration if they are detected. There is the need to give appropriate weight to specific deterrence and to facilitate the offender’s rehabilitation of which I am satisfied there are prospects.

151. He has expressed in his pleas of guilty contrition and remorse which is qualified though by his evidence in response to cross-examination by the Crown. On balance I propose to give him some benefit for that.

152. Importantly the conduct must be denounced and the Court must fulfil its obligation to apply the law in place for the protection of children in circumstances where they might be exposed to such behaviour.

153. In each case the offender is convicted upon each of the twelve counts on the indictment. I note that he was convicted previously which allowed for the presentation of the victim’s impact statement to the Court. I find special circumstances for the reasons I have articulated.

154. Count One: I specify a sentence of three years and two months, including a non-parole period of two years and a parole period of one year and two months.

155. Count Two: I specify a sentence of three years and nine months and 17 days consisting of a non-parole period of two years and three months and additional term of one year six months and 17 days.

156. Count Three: I specify a sentence of four years and nine months, comprising a non-parole period of two years and nine months and a parole period of two years.

157. Count Four: I specify a sentence of four years and nine months, consisting non-parole period of two years and nine months and a parole period of two years.

158. Count Five: I specify a sentence of four years and nine months, with a non-parole of two years nine months and a parole period of two years.

159. Count Six: I specify a sentence of four years and nine months with a non-parole period of two years nine months and a parole period of two years.

160. Count Seven: I specify a sentence of five years, eight months, and twelve days, comprising a non-parole period of three years and three months and a parole period of two years five months and twelve days.

161. Count Eight: I specify a sentence is one of three years and two months, comprising a non-parole period of two years and a parole period of one year two months.

162. Count Nine: I specify a sentence five years, two months, and 20 days, consisting of a non-parole period of three years and a parole period of two years, two months, and 20 days.

163. Count Ten: I specify a sentence is five years two months and 20 days with a non-parole period of three years and a parole period of two years, 20 months, and 20 days.

164. Count Eleven: I specify a sentence of three years three months and 27 days, consisting of a non-parole period of two years five months and a parole period of ten months and 27 days.

165. Count 12: I specify a sentence of three years and two days with a non-parole period of two years and a parole period of one year and two days.

166. The resort to years, months, and days in some of these is the product of the application of the discount of 5% to the sentences that I settled upon for each matter.

167. The sentence I impose as an aggregate sentence is one of eight years and six months, consisting of a non-parole period beginning on 20 February 2024 and eligibility for parole on 19 February 2029. This reflects a non-parole period of five years, the overall sentence including the non-parole period of five years and the parole period of three years and six months and will expire on 19 August 2032.

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Decision last updated: 09 September 2024