R v Sullivan

[2022] NSWDC 404

District Court

New South Wales

Medium Neutral Citation:

R v Sullivan [2022] NSWDC 404

Hearing dates:

1 September 2022

Date of orders:

9 September 2022

Decision date:

09 September 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [91 - 92]

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault 

CRIME — Intimate images — Distribute intimate image without consent 

CRIME — Violent offences — Assault occasioning actual bodily harm

CRIME — Violent offences —  Intimidation 

CRIME — Apprehended violence orders — Contravene apprehended violence order

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

R v Gebrail unrep 19.11.94 NSWCCA

Henry (1999) 46 NSWLR 346

De la Rosa (2010) 79 NSWLR 1

Ragg [2022] NSWCCA 150

Pearce [1998] HCA 57, Mill (1988) 166 CLR 59

Johnson [2004] HCA 15

Cahyadi v R [2007] NSWCCA 1

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ

Category:

Sentence

Parties:

Regina (Crown)
Sullivan (Offender)

Representation:

Dobraszczyk Counsel for the NSW Director of Public Prosecutions

Pearsall Counsel (NSW Public Defender) for the Offender

File Number(s):

2020/00269726

Publication restriction:

Unrestricted

Reasons on Sentence

1. Wade Sullivan (“the offender”) appears for sentence in respect of three matters on an indictment and in respect of seven matters to be dealt with summarily set out on a section 166 certificate. Additionally there are four matters to be taken into account by way of the Form 1 procedure when sentencing for count 2 on the indictment, a charge of aggravated sexual assault.
2. Each of these matters is set out in the following table together with the maximum penalty for the particular offence.

Sec	Offence	Max Pen
1	37(2)	Choke with intent to commit another indictable offence	25y
2	61J	Agg sex assault (deprive liberty)	20y; snpp 10y
3	91Q	Distribute intimate image	3y
4 F1 1	59	AOABH	5y
5 F1 2	61	Assault	2y
6 F1 3	59	AOABH	5y
7 F1 4	91P	Record intimate image without consent	3y
Related matters to be dealt with summarily
8	13	Intimidation	5y
9	13	Intimidation	5y
10	61	Assault	2y
11	13	Intimidation	5y
12	61	Assault	2y
13	13	Intimidation	5y
14	14	Contravene ADVO	2y

3. As indicated in the table the offence under section 61J has a standard non-parole period of 10 years. No other of the offences has a standard non-parole period. I take the maximum sentences, and in respect of the section 61J offence the standard non-parole period also, to be legislative guideposts indicating the legislature's view of the seriousness of the offences to assist in arriving at the appropriate sentence.
4. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts and objective seriousness

5. Of the 14 offences 10 of them occur (if the contravene ADVO is included) in the period 30 August 2020 to 4 September 2020.  The offender relies heavily on the principle of totality. The case is better understood if the facts are set out in the order in which they occur rather than the order in which they are set out in the cover sheet of the Crown sentence summary bundle which became exhibit A.
6. The first matter is one of the Form 1 matters and is the offence of assault occasioning actual bodily harm. This occurred in August 2019.  The offences on the indictment occurred in September 2020, one year later, so this is quite a distinct event albeit that it has all-too-familiar characteristics with the subsequent offending.  Not long before this offence the offender had been released from gaol and was met by the victim. They were both heavy users of methylamphetamine. The victim was in an intimate relationship with the offender and had been residing with him at various short-term locations, decided that she had had enough and packed up her clothes and started walking down the street. The offender followed her and pushed her, trying to stop her. She was carrying a scooter and threw it at the offender who then punched her in the jaw so hard that she blacked out. She woke up soon after with blood on her face and the offender was lying nearby in a ball crying.  They went back together to where they were staying. The next day the offender asked the victim if she had told anybody and she said she had not because she was too ashamed.  The offender said that he shouldn’t have done that, that he felt bad and she deserved better.
7. The offender notes the fact of the offender being curled up in a ball and the fact that the next day he was tattooing the victim’s name on his foot to found the submission that there is a great deal of emotion involved here.  I accept that there is emotion involved. What the facts also show is that when the offender did not get what he wanted, which was to stop the victim, he reacted violently. There is a clear element of control evident here. The punch was so hard that the victim blacked out; it was a punch to the head. The facts do not disclose the actual bodily harm beyond the fact that there was blood on the victim’s face. I would place this offending in the high low range of objective seriousness. It will be taken into account when sentencing the s61J offence.
8. The second offence occurs about one year later on 10 August 2020, an offence of common assault, and another of the Form 1 matters.  In the period between the first and second offences the parties had ended their relationship and seen other people but had remained friends. There was a period of six months when the offender was in custody. On his release in April 2020 it was again the victim who picked him up. They stayed in short-term accommodation and then at the offender's father’s house, the relationship having seemingly recommenced. The offender had become jealous and accused the victim of sleeping with other people. He apparently had access to her phone and knew her passwords. They again broke up from their relationship in May 2020 and the victim wished to move to live at her mother’s. The victim did move to her mothers but continued to see the offender including having sex with him. In early August 2020 she found out she was pregnant.  Much of the offending from this point  involving intimidation and violence appears to be motivated at least in part by the offender’s attitude to this pregnancy.  The offender maintains that he wished for the victim to keep the baby whereas the victim wished to terminate the pregnancy.  As will be disclosed by the facts set out below the manner in which the offender sought to present his point of view was terrifying.  In connection with this common assault the parties were arguing in the public car park at a shopping centre. It is not expressly stated but it may well have been about the pregnancy and the facts are certainly structured to suggest that is the case. Nothing is said about the offending other than they were arguing when the offender punched the victim to the face. The police were called and it was as a result of this incident that an apprehended domestic violence order was served upon the offender.
9. The offender says this offence was motivated by the offender’s anger brought on by his concern as to the victim’s plan to terminate the pregnancy.  With respect it is impossible to see how that is a factor which might detract from the objective seriousness of the matter or indeed subjectively assist the offender.  Not only is this common assault in a domestic violence circumstance involving a punch to the face but it is carried out upon a person who is known to be pregnant. In my view this offending is into the mid range for the offence of common assault.
10. The third offence is in mid to late August 2020 and is a further count of assault occasioning actual bodily harm and is the third of the Form 1 matters.  On this occasion it was the victim who struck the first blow; she was punching the offender because he was communicating with a woman that he had slept with. After punching the offender she next remembers waking up with a really sore jaw. The offender provided her with frozen vegetables and a jumper and said that he had knocked her out. She saw she had blood on her face. She later noticed dried blood on her lips and cheek.
11. This really seems to be a repeat of the first assault occasioning charge save that it is preceded by a degree of provocation. Despite that point of difference I consider it to be of a similar degree of objective seriousness as the first such offence, so that it is into the high low range.
12. The fourth offence in time is the first of the related or summary matters. It is the offence of intimidation in breach of section 13 of the Crimes (Domestic and Personal Violence) Act. This offending occurs over an extended period of time being from 30 August to 2 September 2020. This offence marks the beginning of the 10 offences mentioned above occurring between 30 August and 4 September. The events read like a horror story set in some remote lawless wasteland. The intimidation begins by way of text message. In those messages the offender constantly refers to the victim as “dog”. The messages to the victim had been preceded by conversations by text between the offender and the victim’s mother. I do not treat those messages as forming the intimidation of the victim but they set the context because there is reference to the victim’s pregnancy and with her mother telling the offender that the victim had lost the baby. The offender then texted the victim “I really really really really really really hope you did loss the kid u lying dog ay”, and later “Wat ever ay cunt have fun with him dog coz next time i see u i will jump on ur head ay cunt”.
13. The offender then continues to send demanding messages to the victim calling her names and abusing her. The victim told him to stop sending messages but he continued to do so for the next three hours and finally at about 10 PM said he was going to her house and at about 10:16 PM texted her that he was outside. The victim suffered a meltdown and her mother took her phone away. In my view the intimidation at this point is significant; to have abused somebody by text message for that period of time and to then say you were outside the house would be frightening.
14. The next morning the offender continued in the same manner sending 24 messages calling both the victim and her mother “dog”. The victim did have the strength of character to tell the offender to “fuck off”.  The following day which is said to be 2 September there were yet more messages from the offender to the victim wanting to see and talk to her. She told him to leave her alone and that he did not care about her. He responded with further abusive messages referring to her as a maggot and a dog. The abuse escalates with the offender texting in effect that the victim had until midnight to come to see him and threatening that if she did not he would definitely lose more than his baby saying he would make her watch him kill every single one slowly, having just referred to her nan, pop, brothers and mum. The facts conclude this event with a text of the offender saying he did not care if he went to gaol because everyone he loves or cares about will be dead “like you killed my baby dog and make sure you live a very very painful li” (sic).
15. There is little said about this event by the offender other than to suggest it occurred only on the 30th and 2 September. The facts appear to be out by one day as if the offending began on the 30th it would conclude on 2 September. What can be said is between 30 August and 2 September, a period of four days, there was extensive abusive messaging on three of those four days.
16. This is an extreme case of intimidation. It is carried on over a period of four days even if one of them may have been a day without abuse. It is conduct that would appear to be designed to totally humiliate and degrade the victim. It shows the offender trying to exert his will over that of the victim and is very controlling. It reaches a new level with the graphic threats to kill. In my view this intimidation is in the high range of objective seriousness.
17. The fifth offence (related) is another occasion of intimidation. It occurs on 3 September 2020 so the day following the offence just outlined. The victim had gone to a cemetery to visit her father’s cremation post. The offender appeared and accused her of killing his baby. He came up behind her on a motorbike and tried to kick her feet out from underneath her. He was yelling at her to “get on the fucking bike”, and yelling at her to talk to him and that she killed his baby.
18. The offender makes the totality point and says this should be seen as part of the one event culminating in the offences of counts 1 and 2. Ultimately that is the correct approach but it does remain to first assess each of the offences. This offending is made worse given that it follows the intense intimidation of only the day before. It occurred in an area where there were likely not many people about. There was the attempted kick and the demand that the victim depart the scene with him when clearly she did not wish to. I consider this to be in the high low range of objective seriousness.
19. The sixth offence (related) is common assault. It follows on from the fifth offence. The offender swung his arm out in a coat hanger manoeuvre, hitting the side of the victim's jaw with such force as to knock her off her feet and cause her to fall to the ground. The victim got up. The offender yelled at her to get on the bike. Scared that she would be hurt again she got on the bike. He then took her to his father’s house and started yelling again calling her a whore and accusing her of killing his baby and of sleeping with the whole town. 
20. The offence here is the striking of the victim though on one view it could extend to the fear caused by the verbal abuse also. Limiting the consideration to the physical assault this is the blow to the head causing a person to fall to the ground. In terms of common assault this is mid range.
21. The seventh offence (related) is intimidation, and is also on 3 September and follows the common assault just described. Now at the offender’s father’s house the victim sat down with her back against the front door, cowering.  The offender yelled at the victim to get into his room or he would “skull drag” her.  She was crying and screaming “no” and she wanted to go home. He kicked the wall 50 cm from her head, putting a hole in it. He threw her phone at her which hit her legs.  He then looked through the phone accusing her of “deleting shit” and talking to people. He said “you fucking him too”.
22. The element of control is again evident here.  Having intimidated the victim to be at this location and having assaulted her in the course of doing so he then commits an act of physical violence by kicking a hole in the wall adjacent to her head. There is no actual physical contact between the offender and the victim. Viewed in isolation I would consider this to be in the low range.
23. The eighth offence (related) then follows which is common assault.  The victim was sitting in the corner when the offender told her to get up or he would skull drag her. He walked over and grabbed her by the hair and dragged her towards the bedroom. He told her to get in the fucking bedroom and she did and he followed her. He put a latch on the door as well as a knife in the doorframe to keep the door shut. He went through her phone and threw things at her. She asked if she could lie down.  He said he didn’t care.
24. She got on the bed and put a blanket over her head to ignore him. He said you’ve done this to yourself and you can struggle all you want. After about 10 minutes he said “I’m going to fuck you now and I’m going to record it too”.  He said they could do it the easy way or the hard way but either way he was going to fuck her. He grabbed her and she screamed no. He had one hand pressing down on her neck and the other holding the phone. She tried to keep hold of her shorts to stop him pulling them down. He tried putting his erect penis in her vagina but she moved her hips to prevent that.
25. In terms of common assault this offence is constituted by the offender dragging the victim by her hair into a room which is then locked including by the use of a knife. Items are thrown at the victim. She is then manhandled including having a hand placed on her neck whilst being told that she is to be sexually assaulted.  I would place this in the high mid range on the cusp of high range.
26. The ninth offence is count 1 on the indictment being an offence in breach of section 37(2) of the Crimes Act. The elements of the offence are to choke, suffocate or strangle a person so as to render them unconscious, insensible or incapable of resistance and to do so with the intention of enabling the commission of another indictable offence. The facts are that this follows on from the common assault just described which involved the offender’s hand being on the victim’s neck. The offender was holding the victim’s neck with his palm pressing down on her windpipe making it hard for her to breathe. He dropped the phone and used both hands to cover her nose and mouth and said “if you keep moving I’ll fuckin kill you”. She was incapable of resisting. She could not breathe and did not know what else to do so stopped fighting him.
27. The offence is made out because the victim has been made incapable of resistance. The other indictable offence is aggravated sexual assault. Given the seriousness of that offence the seriousness of the section 37 charge is increased. This is not a case of the victim being rendered unconscious. There is not evident any great degree of planning. The act constituting this offence is capable of being seen as the culmination, together with count two, of the preceding period of abuse. assessing the offence itself I would place this offending in the high low range of objective seriousness.
28. The 10th offence is the second offence on the indictment, the offence of aggravated sexual assault. The circumstances of aggravation are that the offender deprived the complainant or her liberty for a period before or after the commission of the offence.  Continuing on from count 1 the victim was on her back and the offender pulled her shorts and underpants down. He put his penis into her vagina and had forcible sex with her for about two minutes before ejaculating inside her. When he finished he told her she “fucking deserved it”. The victim laid there doing nothing. She heard something drop to the ground and assumed it was a phone. She made no effort to get it while the offender was awake as she did not wish to anger him. She waited for him to fall asleep but fell asleep herself.
29. In assessing the objective seriousness of this offence the Crown referred to R v Gebrail unrep 19.11.94 NSWCCA where Mahoney JA referred to the degree of violence, physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation, and otherwise. In considering the circumstances here it is important not to double count the earlier offending. With that in mind the circumstances here are that for the previous period of four days there has been repeated abuse of various forms against the victim.  The offender seeks to suggest that this was a somewhat impulsive act. I consider it to be the culmination of literally days of abuse. Even accepting that the sexual intercourse was impulsive it cannot be said that the abuse of which it formed part was in any way shape or form impulsive, enduring as it did for the time that it did. At the time of this offence the victim was a broken human being and the offence is a wanton act continuing that destruction. In my assessment this is in the mid range of objective seriousness.

5. The next offence, the eleventh, is the remaining Form 1 offence of intentionally record an intimate image without consent. This offending occurred at the time of count 2 because the image recorded is of that event. The imagery is of the offender penetrating the victim’s vagina with his penis.  The recording includes audio of the offender saying “I’m gonna fuck you in the arse hey. Ning. What cunt.  Don’t fucking move”. The imagery here, although of violence is also of the most intimate part of the victim’s body.The facts do not suggest that the video is of any significant length.  The graphic nature of the imagery in my view places the matter in the high mid range.
6. The 12th offence (related) of intimidation occurs on 5 September though has its origins in the morning after the sexual assault.  On that morning the victim’s mother woke to another abusive message of the offender. She rang the victim’s brother to tell him he needed to go and get the victim from the offender’s house. The brother did that. The offender said as the victim was leaving “are you serious”.
7. The victim went to her mother’s house and cried. She messaged the offender that she would keep the baby if he stopped threatening to kill her mother. He kept trying to call her when she asked him to stop. The next day, so 5 September, the offender was still messaging the victim and telling her to tell her mother that if she kept going he would break her.
8. An argument arose on the subject of the baby. The messaging culminates with the offender saying that he would kill her mother no matter what and words to the effect of “you think I’m a mental case now wait till you see what I turn into if you kill my kid”, were sent and then in a final text he threatens to do worse to her than he did to her the other night, a clear reference to counts 1 and 2, and goes on to say that if she keeps avoiding the problem and “gets rid of my kid I will kill you”. He then says he just wants to talk but then says if she does not do that by the time it is dark he will knock on the front door and if he has to do that he wouldn’t want to be whoever is there. He concludes by saying please don’t make me come out there and hurt your family.
9. This intimidation includes threats to kill both the victim and members of her family. It makes reference to very recent very serious offending and threatens to do worse. Whilst it is intimidation by communication and not physical interaction it is a serious case of intimidation. In the context in which it is occurring I would place it in the mid range of objective seriousness
10. The thirteenth offence is the third count on the indictment which is the offence of intentionally distribute intimate image without consent. This occurs on 8 September.  The video was of a consensual sexual encounter of the victim and the offender so not anything the subject of these charges beyond this count.  Both the victim and offender had this video on their phones.  The victim became aware from friends that it was on Snapchat. It was this that prompted her to contact police.  The video depicts a close-up of the victim’s vagina and anus while the offender uses a sex toy to penetrate her from behind. 
11. The offender concedes that this is more serious because of the number of people that were sent the image. The facts do not disclose what that number of people is. The degree of intimacy on the video is very high. Without knowing just how many people received this image I would assess it as being in the high low range of objective seriousness.
12. The final offence is of contravening the apprehended violence order that was taken out on 10 August 2020. All of the offences that follow that date are relied upon for the breach of that order.  In my view there could be no assessment other than this offence being in the high range of objective seriousness.

Subjective case

38. The offender relied on a psychologist report of Sarah Van De Velde.
39. The offender gave the psychologist a history of growing up in Grafton with his parents and three siblings until age 5. At that time his parents separated after his father “bashed” his mother. He said the family moved around to avoid the father. He enjoyed sports growing up however said from an early age he engaged in antisocial and aggressive behaviour and was angry. His stepfather also bashed his mother and also the children. He lived in fear of abuse but can also recall happy times with the stepfather.
40. The offender’s mother died when he was nine. He and his siblings were removed from the stepfather due to abuse. The offender was under the care of the Minister in 2004. He and his siblings were placed with their natural father but were again removed when the father was incarcerated for bashing his partner. He then lived with his “nan” (it is not clear if this was his grandmother or some other relative or friend) but due to his own behaviour was later removed. He spent time with other carers but ran away at 14 to his father.  The offender’s father used cannabis and amphetamines and was again gaoled for domestic violence. The offender spent time in a juvenile justice centre. As an adult he has lived only with his father or with a partner. He hopes to live with his brother in Cairns on release.
41. That brief history shows the offender developing in his childhood in an environment where the two major male figures engage in domestic physical violence and also in the case of his father substance abuse.
42. The offender says he has good relations with his family though the extent of contact is now limited due in part to his own violence. He had a good relationship with his father. I note in the evidence given at the sentencing hearing the offender stated he had a strong relationship with his father with a suggestion being that this was a very disadvantageous role model. He also had supportive friends however they appear to be people who engage in offensive behaviour.  He agreed he idolised his father and was told by others that he was very like him.
43. In describing his relationships he admits to conflict and problems due to his drug use. He seemed to deny physical abuse other than as has been admitted to by his plea. He admits abusing and threatening the victim in the present case and breaking her mobile phones.
44. He has experienced violence by a carer and also by his cousin and cited occasions of knives and guns being pulled on him.
45. His behaviour at school was problematic and he often changed his school. There are numerous expulsions and police involvement.  He left school very early and reports some difficulty reading and writing though says he is good at maths. Whilst in juvenile detention he completed a year 10 certificate. He is interested in doing a carpentry course in the future.
46. He said he worked for 12 months at age 14 and also for three months in a sawmill in 2011 at about age 18, and he has employment in custody. When in the community he receives Centrelink. He said he has not considered long-term work goals and at the same time did express interest in carpentry. The short point is however the offender on this evidence has no real work skills or experience and as he suggests with his criminal record will have difficulty obtaining work.
47. He has had numerous injuries such as broken bones and a head injury, the latter going untreated. That was in 2016 and he was suffering headaches in 2021.
48. The offender says he was diagnosed with ADHD as a child. He described forms or symptoms of depression from age 9. He described mood swings.  He reported paranoia and intrusive thoughts and flashbacks. He reported having difficulty controlling anger and aggression and violence from the age of six . In 2019 he threatened self harm and did scratch his arm.  As a child he engaged with psychologists in connection with a claim for compensation 10 years ago. He did see a psychologist in September 2021
49. Psychometric testing was attempted by the psychologist but difficulties in carrying out the testing due to the offender’s responses not directly answering what was asked saw testing terminated.
50. The offender has a significant substance use history commencing with daily alcohol from age 14 to 20, cannabis use from 14, heroin use from 16, ethanol use ending at 18, cocaine, GHB, ketamine , quetiapine and LSD.  He used methylamphetamine from age 15 and was using more than 3 g per day at the time of the offending. He has used buprenorphine from the age of 18 which he continues to use without prescription in custody. A range of other prescription drugs not prescribed to him are also used by him as well as MDMA.
51. In discussing the offences he did not provide information about the sexual offences but attributed his physical violence to being the only way he could get anger and thoughts out; this was in relation to kicking a hole in the wall. He did express regret and said he regretted what he had done to the victim. He then, however, attributed his behaviour to anger, substance use and the victim’s refusal to talk to him. He acknowledged his behaviour may have crushed the victim but then went on to say that she soon after became pregnant to his friend.  He said he would avoid future offending by not becoming involved with the victim. He did indicate that addressing his anger, mental health and substance use may benefit him.
52. This evidence shows a mixed appreciation by the offender of his circumstances. On the one hand he recognises his wrongdoing and on the other he seeks to shy away from wholly accepting responsibility for it.
53. The evidence given by the offender at the sentencing hearing confirmed, with some corrections, as true what he had told the psychologist.  The evidence he gave did not take matters much further, but benefits him because the material relied has been tested and can be given more weight.
54. He has more than 20 charges in his current period of custody. He is presently in protection. He has spent a significant period of his adolescence and now adulthood in custody.
55. The views expressed by the report writer include the following:
    1. His early childhood experiences have contributed to a disorganised attachment style so that when he does not get what he perceives he needs from those close to him he becomes angry. This is made worse by low self-esteem.
    2. Trauma can alter neurological structure and functioning and impair emotional development. The offender meets the criteria for a trauma disorder best described or reflected by a diagnosis of complex post-traumatic stress disorder.
    3. He meets the criteria for a personality disorder likely developed due to a consequence of trauma. This is reinforced by exposure to violence.
    4. He meets the criteria for stimulant and opioid use disorder.
    5. The view is expressed that he attempts to alleviate his emotions by engaging in abuse and violence.  The report writer states that substance abuse does not fully explain his behaviour and that the use of aggression and sexual and physical violence is likely contributed to by a combination of the emotional dysregulation, impulsivity, reactivity, antisocial attitudes and impaired interpersonal skills. The offender demonstrated limited insight into his offending and limited empathy for the victim. There was some insight into and motivation to address his mental health substance abuse and trauma issues.
56. There was no challenge to any of these views which I accept.  In layman’s terms it would seem that the offender is a product of his environment; he has grown up in an environment of drugs and alcohol and neglect, lost his mother at age 9 and idolised his father who sadly was a man of violence and drug abuse. The offender has little education and little work skills and is very poorly equipped in dealing with life.  Any consideration of his prospects must be very guarded.  At a fundamental level he seems to understand the need to avoid drugs and to deal with his mental health and trauma issues. Yet he has now been an adult for 10 years and has repeatedly been behaving in an antisocial way and been incarcerated so that fundamental realisation could not have been made only after this most recent offending. The only previous psychological treatment was for the purpose of supporting a compensation claim and one can only ponder why it is that there has not been further attempts at counselling for broader purposes.
57. The psychologist was asked as to the contribution of his mental health to his offending. The psychologist says that trauma increases the risk for general violence and that the emotional dysregulation and impulsivity and reactivity associated with his trauma directly contributed to his offending. That is then qualified where it is said that the links between mental health, motivation and behaviour are complex and it is not possible to provide a precise estimation of the degree to which his mental health contributed to his behaviour. The psychologist adds “additionally while his sexual offending appears to be a manifestation of broader intimate partner violence, information about this is limited there may be other undisclosed factors and motivations that contributed to this behaviour”.
58. I consider this a very objective statement. It shows that there is that causal link but to an unspecified degree. Perhaps what the psychologist is indicating is that, and perhaps it goes without saying, the way a person behaves having had the life that the offender has had will vary from person to person.
59. The report also notes a degree of institutionalisation.
60. The report concludes with a treatment plan which in my view should be made available to Community Corrections.
61. There was also in evidence a confidential background report dated 2009 so when the offender was 16 years old. It was prepared for the purposes of the Children’s Court.  The offence being dealt with was assault. It records the offender saying he gets his temper from his father. It shows that he left school at age 13.  It confirms his employment at age 14 (at Subway) and shows that he was attempting education at the time, that is in 2009. He was then playing soccer with a local team and cricket with a local team. The offender was said to be dedicated to his sport. He said his friends have been in trouble with police but he had positive friends also.
62. It was noted that he suffers depression and was seeing a psychologist, something not immediately evident from the above and predating his claim for compensation.
63. The report notes that the offender is an indigenous man with difficult and traumatic childhood experiences with poor coping strategies that may have contributed to his offending behaviour.  There is a reference to people saying that he is just like his father and appears to be trying to prove that he too can be tough and angry but in reality the offender appears very vulnerable and has no positive role models. Ongoing support of the Department of Community Services and youth housing and ongoing counselling is recommended. It also notes he was unwilling to accept assistance from community services; he was however willing to accept a supervised order.
64. The 2009 report is brief but so far as it goes it shows that at the age of 16 the position of the offender was not as dire as it has become. There were pro-social traits in his lifestyle namely his engagement with education and sport and there was some assistance being provided to him. The most likely explanation for his present circumstances is that he became considerably more drug dependent, or it may be the 2009 report did not disclose the then true picture. That there is evidence of the offender having pro-social traits, even if it be in the past, gives a basis to consider the prospects of rehabilitation are greater than the evidence otherwise suggests. 
65. The offender relies on the clearly disadvantaged background of the offender. It is further submitted that that background has contributed to his substance abuse condition. In particular reliance is placed on the high regard the offender had for his father who was the source of the exposure to drug use and violence. The offender cites the decisions of Wood CJ at CD and Simpson JA in Henry (1999) 46 NSWLR 346 to the effect that the circumstances of commencing drug use such as when not old enough to know better or in circumstances where the ability to exercise appropriate judgement is incomplete are relevant factors. The passage from Justice Simpson at [348] is relied upon which is to the effect that the reasons underlying a person’s drug abuse need to be considered and should not be assumed to be the result of informed decision-making.
66. As already discussed I accept the opinions expressed by the psychologist which were unchallenged. I find there is a causal link between the severely disadvantaged background of the offender and his state of mental health and his offending.  This has an impact on the moral culpability of the offender.
67. What may have warranted further investigation is the fact that the 2009 psychological report shows a young person with prospects. That report showed that at the age of 16 the offender, having suffered the disadvantage and the exposure to violence and drugs just referred to had reached a point where he was attending TAFE and participating in sport and showing signs of leading a pro social healthy life. The decline from that point to this is breathtaking. This observation is merely that an observation and is not to suggest that his background of disadvantage is any less instrumental in the offender now being in the position he is in but only to lament what would appear to be a lost opportunity.
68. The offender also relies on De la Rosa (2010) 79 NSWLR 1 at [177]. Based on the psychologist report I have no hesitation in accepting that submission. This means that there is a reduced moral culpability of the offender and that he is not the best vehicle for general deterrence. It does not mean that there is no role to play for general deterrence nor of specific deterrence. Furthermore the concluding part of that passage of De la Rosa is very relevant here, namely that due to the offender’s state of being, in which I include his mental health and his propensity to violence, he clearly poses a significant danger to the community and in particular those with whom he may have intimate relationships.
69. The parties agree that there should be a 5% discount on sentence owing to the plea of guilty.  I note from the Crown submissions that the trial was listed to commence on 17 May 2022 and the plea was entered on 18 May 2022. This discount reflects the utilitarian value of the plea to the efficiency of the criminal justice system. The offender seeks a further discount be given without being separately quantified reflecting the fact that the plea saves the stress of the victim attending court to give evidence. Whilst that is undoubtedly a benefit in this case and I take it into account, the benefit to the offender needs to be assessed together with the fact that the plea came so late and a significant degree of stress would likely have been experienced by the victim in the lead up to the trial. The submission that it aids a finding of remorse is also properly made but again in my view with somewhat limited benefit given its lateness. 
70. As to remorse, this has been commented on above.  The offender has expressed remorse, but regrettably with qualifications.  This is due to a lack of insight and an absence of skills of daily living, that is, of how to treat people with respect, or perhaps it is simply the self focused nature of drug addiction.  I also note the late plea.  On balance I accept that there has been recognition by the offender of his wrongdoing and that he regrets what he has done to the victim. I take that into account.
71. The offender’s criminal history is a significant one, and predominantly one of violent offending.  This offending is an escalation and is his first sexual offence.  The offender has spent four of the last eight years in custody. There is, as identified by the psychologist, a risk of institutionalisation. So far as possible this should be sought to be avoided but at the same time the seriousness of these crimes and the principle of proportionality dictate that it is likely that the sentence will be significant. I do consider it however gives some further support to special circumstances.

38. There was reference in the offender’s submissions to the effect of the stolen generation. In my view the evidence in this case is vague at best to establish that that should be taken into account here. I do consider it likely to be a moot point, as his case of social disadvantage is well made in any event. The fact sadly is that it is the background of this young indigenous man which has exposed him to the violence and drugtaking that has so shaped his life. That in turn in many cases can be related back to the disruption to the indigenous community in previous generations including by the forcible removal of indigenous people from their community.
39. Similarly I do not think that the fact the offender was placed in the care of the state at age 9 or 10 is of much assistance beyond the already accepted background features. This is because although the offender was placed in the care of the state he was, when under the parental responsibility of the Minister, largely placed back in care of his own family.  The offender refers to the two years he had with non-family members as pretty good.
40. In terms of the risk of reoffending that of course is dependent on becoming and remaining drug-free. The offender admits to continued drug taking in custody, and his custody record shows some 20 infringements.  This does not augur well as to the likelihood of reoffending, which must be assessed as being medium at best.
41. This is a case where special circumstances are justifiably found due to the need for the treatment and counselling outlined in the report of the psychologist, and because a lengthier period of supervision in the community is needed given the offender so clearly lacks living skills; he will need assistance in the community. To that is added the need to avoid if possible institutionalisation.  It is also to reflect the fact that in Covid conditions and the lockdowns that presently occur in the prison system that custody is more onerous than ordinarily is the case.
42. Whilst I have largely accepted the submissions of the offender I also accept the submission of the Crown in relation to sexual offending. The Crown referred to Ragg [2022] NSWCCA 150 at [23] where it was said that a just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal alcohol fuelled destruction of a woman by her partner. I accept the Crown submission that is a relevant observation to the present case.
43. The Crown made a submission that there was some planning involved in the offending for the sole purpose of hurting the victim. I consider that that aspect of the matter has been sufficiently considered in assessing objective seriousness so that it need not be further taken into account.
44. The Crown also observed that whilst childhood disadvantage may lead to leniency an established inability to control a tendency to violence may increase the importance of protecting the community from the offender.  To further support this concern the Crown referred to the offender’s criminal history noted above, and which it should be noted included domestic violence offences.  I accept that submission.
45. In determining the sentence there was no argument concerning section 5. In terms of the purposes of sentencing I note by section 3A there are the following purposes of sentencing:

• To ensure the offender is adequately punished
• To prevent crime by deterring the offender and others from committing similar offences
• To protect the community from the offender
• To promote the rehabilitation of the offender
• To make the offender accountable for his actions
• To denounce the conduct of the offender
• To recognise the harm done to the victim of the crime and the community

80. As already discussed there is less weight in this case to be placed on deterrence. There is very much a need to denounce this behaviour and to recognise the harm done to the victim and to protect the community.  At the same time steps should be taken to promote the offender’s rehabilitation.

Determination

81. I propose to proceed by way of an aggregate sentence. In order to do so it is first necessary to fix an appropriate indicative sentence for each offence and then consider questions of cumulation and concurrence.
82. Set out in the below table are each of the offences, my assessment of objective seriousness, and my indicative sentence both before and after applying the discount of 5% for the guilty plea. I have taken the four Form 1 matters into account in respect of count 2 on the indictment.
83. Both parties referred to the principle of totality which is plainly relevant here. The Crown helpfully set out relevant principles concerning the totality principle by reference to Pearce [1998] HCA 57, Mill (1988) 166 CLR 59 and Johnson [2004] HCA 15. The essence of the principle is to determine a properly calculated sentence for each offence and then review the aggregate sentence to consider whether it is just and appropriate. The aim is to arrive at a just sentence for the conduct of which the offender is guilty. Consecutive sentences will be generally appropriate and there are truly two or more incursions into criminal conduct; where the conduct however is engagement in one multifaceted course of criminal conduct concurrent sentences are just and convenient. The matter was expressed this way in Cahyadi v R [2007] NSWCCA 1 at [27]:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

84. The submission of the Crown was that due to the offender's record and poor prospects of rehabilitation it is less likely that the sentence arrived at is crushing. It is further submitted that because counts 1 and 2 involve different elements that only separate consecutive sentences would be able to reflect the criminality involved.
85. With respect I do not accept those submissions. As to the first aspect a poor criminal history and poor prospects of rehabilitation do not point to a sentence not being crushing but point to a less lenient sentence.  As to the latter as the facts set out above show 10 of the 14 offences being dealt with occurred in a four-day period. The offending is plainly a course of conduct. That is not to suggest that the sentences would be wholly concurrent; they will not be. Rather it is to suggest that in a case such as this the overall criminality is not reflected by the lineal accumulation of the sentences for the different offences. Such an approach would plainly result in a very disproportionate sentence. As just indicated the sentence will not be one where there is a total concurrency between counts 1 and 2 but it will all the same reflect a significant degree of concurrency overall.
86. It should also be highlighted in this regard that there are seven matters to be dealt with summarily. There is a jurisdictional limit as to the length of an aggregate sentence that may be set for summary matters. That limit is five years; see section 53B of the Crimes (Sentencing Procedure) Act. In setting the sentence in this matter I have abided by that jurisdictional limit; to make it abundantly clear the aggregate sentence is not contributed to by the summary matters by more than five years.
87. The table referred to above is as follows:

Table of indicative sentences

Sec	Offence	Obj Ser	Max Pen	Ind	After 5% Disc
1	37(2)	Choke with intent to commit another indictable offence	High low	25y	4y	45m
2	61J	Agg sex assault (deprive liberty) (and taking into account the 4 Form 1 matters)	Mid	20y; snpp 10y	7y	79m
3	91Q	Distribute intimate image	High low	3y	12m	11m
4 F1 1	59	AOABH	High low	5y	Form 1 matters taken into account in relation to count 2
5 F1 2	61	Assault	Mid	2y
6 F1 3	59	AOABH	High low	5y
7 F1 4	91P	Record intimate image without consent	High mid	3y
Related matters to be dealt with summarily
8	13	Intimidation	High	5y	3y	34m
9	13	Intimidation	High low	5y	15m	14m
10	61	Assault	Mid	2y	12m	11m
11	13	Intimidation	Low	5y	12m	11m
12	61	Assault	High mid	2y	15m	14m
13	13	Intimidation	Mid	5y	2y	22m
14	14	Contravene ADVO	High	2y	20m	19m

88. I note that the 5% discount for the guilty plea has been applied above and that the form 1 matters have been taken into account in respect of count 2.
89. Taking into account the range of matters discussed above and being aware of the jurisdictional limit in respect of the summary matters and applying the principles of both totality and proportionality I consider that the minimum term to be spent in custody without parole is eight and a half years with a balance of term of four and a half years.
90. Had it been necessary to set a non-parole period for count 2 the period would have been 4 years. The reason for this is that it approximates the ratio of the non-parole period and balance of term of the aggregate sentence. Which reflects the matters on which a finding of special circumstances was based. That non-parole period varies from the standard non-parole period for the same reasons

Orders

91. The offender is convicted of the 3 counts on the indictment and the 7 matters set out on the section 166 certificate.
92. The offender is sentenced to an aggregate term of imprisonment to date from 16 September 2020 with a non-parole period of eight and a half years expiring on 15 March 2029 and with a balance of term of four and a half years expiring on 15 September 2033.

Decision last updated: 12 September 2022