R v Thompson

[2022] NSWDC 483

District Court

New South Wales

Medium Neutral Citation:

R v Thompson [2022] NSWDC 483

Hearing dates:

09 June 2022
19 August 2022

Date of orders:

02 September 2022

Decision date:

02 September 2022

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

The offender is sentenced to a period of full-time imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months.

Catchwords:

SENTENCING – plea of guilty – historical child sexual assault – first offence – mental illness – impact of mental illness on moral culpability

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002

Luque v R [2017] NSWCCA 226

Markarian v The Queen [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120

R v Edwards (1996) 90 A Crim R 510

R v Gavel [2014] NSWCCA 56

R v Greenwood [2014] NSWCCA 64

Tataan v R [2022] NSWCCA 75

Category:

Sentence

Parties:

Regina (Crown)
Elvira Rosas Thompson (Offender)

Representation:

Counsel:
M Juhasz (Offender)

Solicitors:
R Stefani (ODPP) (Crown)
A Sinclair (Ryan Payten Le) (Offender)

File Number(s):

2020/0049122

Publication restriction:

Non-publication order in respect of the victim or any information that may tend to identify them.

Judgment

1. The offender Elvira Rosas Thompson, born in 1953, is before the court for sentence for one count of sexual intercourse with a person under the age of 10 years, contrary to section 66A of the Crimes Act 1900 (the Crimes Act) for which the maximum penalty is 20 years and for which there is no standard non-parole period.

2. The offender also asks me to take a matter on a Form 1 into account which is a further offence of sexual intercourse with a person under the age of 10 years contrary to section 66A of the Crimes Act.

Agreed Facts

3. The agreed facts are as follows.

4. The victim in this matter, LM, was born in the Philippines in 1978. LM’s mother is the offender’s cousin. The victim knew the offender as “Aunt Elvira”.

5. In about 1983, when the victim was 5 years of age, she moved to Australia with her family. The offender picked them up from the airport.

Offending

6. Sometime in 1987, when the victim was aged 8 or 9, she went to stay with the offender during the school holidays. The offender was living in a studio apartment in Potts Point, and worked nearby as a house-keeper at a hotel. The victim slept on a fold-out bed when she stayed with the offender.

7. During the time LM stayed with the offender, the victim was on the fold-out bed wearing a nighty and underwear. The offender was at the end of the bed. The offender pulled the victim’s underwear off. The offender told the victim she would “like it” before performing oral sex on her. The offender pushed her tongue inside the victim’s vagina causing pain (Count 1).

8. On another occasion, during the school holidays a man attended the offender’s apartment whilst the victim was present. The offender had a shower and asked the victim to have a shower. The victim did so and put her clothes on. The offender then proceeded to have oral and penile-vaginal sexual intercourse with the man.

9. The offender then told the victim to sit over her face. At some point, the victim’s underwear was removed by the offender. The man continued having penile-vaginal intercourse with the offender whilst the offender performed oral sex on LM (Form 1).

Complaint

10. The victim disclosed the incidents to her mother in her late teens or early twenties, and to her uncle, the offender’s ex-husband. On 5 April 2019, the victim reported the incidents to the police.

Investigation

11. A warrant was obtained for a listening device. On 7 November 2019, the victim met up with the offender and had a conversation that was recorded. The conversation included the following exchanges:

Victim	Aunty I think during that time…we also did things to each other.
Offender	Yeah.
Victim	Do you remember?
Offender	Yeah.
Victim	Like when you touched me and things like that…
Offender	Uh…that’s different. That’s wrong. Yeah.
Victim	Did you think that was wrong when you did those things to me?
Offender	Of course. Yes. That’s right. Because…most probably I am not in my right frame, not in my right mind.
Victim	So when you touched me you thought…
Offender	No. I didn’t know about it. Yeah. I just realised that lately, that everything happening to me…or what’s I’m doing in my life, in myself…other people is wrong. Stuff to you as well. And I’m sorry for those things.
…
Victim	I guess it made me a bit confused when you used to, you know, do sexual things to me.
Offender	Yeah. That’s very bad…I regret, I was crying. For what happened to yous, you know, what I’ve done with my life.
…
Victim	Why did you touch me?
Offender	I wasn’t in my mind.
…
Victim	Like, when you were touching me?
Offender	Yeah, that’s right…because of the drinks. Very bad. I done a bad things…I can’t even understand why…how I did it.

Arrest

12. On 14 February 2020, the offender was placed under arrest. The offender was bail refused by police and granted bail on 15 February 2020 at Wollongong Local Court.

Exhibits

13. Before me are five exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. The indictment;

2. A Form 1;

3. Agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) signed by the offender on 9 March 2021;

4. The offender’s criminal history;

5. A Sentencing Assessment Report (SAR) by Caitlin Shanahan dated 14 March 2022 together with a Structured Case Note Consultation for Sex Offender completed by Mary Sanna, psychologist, undated; and

6. The victim impact statement of LM dated 20 June 2021.

14. The victim read out her statement in court.

15. Exhibit 2 is a report of Dr Richard Furst, forensic psychiatrist dated 18 September 2021. He was not required for cross-examination.

16. Exhibit 3 is a report of Dr Matthew Jones, general and forensic psychiatrist dated 28 October 2021. He was not required for cross-examination.

17. Exhibit 4 is an intake assessment form of the offender completed by Ms Shanahan on 7 February 2022 as well as selected case notes written by Ms Shanahan on 7 February 2022, 11 February 2022 and 22 February 2022.

18. Exhibit 5 is a bundle of documents tendered by the offender which includes:

1. A letter of Dr Abdulatif Burhan dated 5 June 2014;

2. A psychological summary report of Dr Abdulatif Burhan dated 19 June 2014;

3. A letter of Dr Abdulatif Burhan dated 2 October 2014;

4. A letter of Dr Abdulatif Burhan dated 23 May 2017; and

5. A medical certificate for the offender issued by Dr Abdulatif Burhan dated 1 March 2019.

19. Dr Burhan was not required for cross-examination.

20. Ms Shanahan and Ms Thompson (with the assistance of an interpreter) gave evidence before me.

Evidence

21. I will now summarise some of the documents and other evidence which has been placed before me.

Exhibit 1

22. I will briefly summarise some of the contents of the Crown bundle.

23. The offender’s criminal history shows no convictions. This is her only offence in her almost 70 year life. The events the subject of the offending took place 35 years ago.

24. The SAR of 14 March 2022 indicates that the offender resides with her brother in social housing. Her extended family no longer speaks to her as a result of her plea of guilty. The offender was apparently diagnosed with delusional disorder and depression in 2014. Her prior employment history includes hotel work and being a shop assistant at Coles. She was currently employed as a cleaner at a bowling club. Ms Shanahan said that the offender minimised her offending and denied that the offences occurred. She appeared to Ms Shanahan to lack empathy, and the offender described the victim as a promiscuous child. The offender said that “abuse and assault towards children is wrong” and that “it’s against the law”. She was engaged with a mental health social worker (sometimes described as a psychologist in other material) at a Women’s Medical Health Centre.

25. The offender was assessed at a low risk of re-offending. Upon release, Ms Shanahan suggested that Community Corrections implement the following plan:-

1. Report to a supervising officer monthly to engage in cognitive behavioural interventions to increase prosocial lifestyle, manage impulsivity and achieving goals;

2. Referral to a general practitioner to obtain a Mental Health Plan and to engage with a psychologist to manage her mental health symptoms;

3. Referral to a Corrective Services senior psychologist for sex offender assessment;

4. Referral to sex offender specific programs as recomended by a Corrective Services psychologist;

5. Third party checks to be conducted monthly with services to monitor ongoing compliance;

6. Contact with police every month to monitor compliance in the community; and

7. Field visit every 12 weeks to monitor the offender’s circumstances in the community.

26. I note the content of the Structured Case Note by Ms Hanna.

27. A victim impact statement was prepared by LM and read out to the court. LM says that the sexual assaults committed on her are still felt today in all aspects of her life. She says it took courage to speak up about the crimes against her, knowing that the offender was able to walk the streets in freedom. That the offender took no responsibility made her feel angry. LM has felt scared, broken and alone and she has carried the burden of this pain since she was a child.

28. LM said that writing her statement was incredibly difficult, but it was her hope that by writing it, she could give the court insight into the impact of the offender’s crimes. She says she often wonders what life would have been like had the offending not occurred and if she had experienced a happy childhood. LM says that the offender’s choices took her childhood away from her. She will never understand what led the offender to do what she did to her as a child. LM says that the offender abused her power as an adult by taking advantage of a child.

29. After the sexual abuse, LM says she retreated into herself, was crippled with anxiety and was easily startled by sounds. She felt the world was no longer a safe place and the happiness she felt was stripped away by feelings of sadness. She was haunted by memories of the abuse and lived in a cycle of fear and anxiety. She felt anxious about attending school. As a result, LM missed a lot of school and her education was affected. By high school LM developed depression and found learning very difficult. She also found it hard to relate to peers and was bullied, which caused low self-esteem. She started to have suicidal thoughts.

30. LM says that the isolation had a detrimental effect on her relationships and work prospects, because she had no confidence to pursue her education. Therefore she obtained no formal qualifications which restricted her work prospects. She has had unhealthy relationships and has been subject to physical, emotional and psychological abuse. This has affected LM’s ability to have a normal sexual relationship. LM is now 43 years of age and she has had to live with the burden of the pain from the offending. She says that the offender has failed to take accountability for her actions and that she will never forgive her.

31. There is no doubt that the victim has suffered for a very long period as a result of the actions of the offender. The suffering has left deep and painful scars. The court recognises the harm caused to the victim by the offender’s actions and hopes that she can now move forward to a better life.

Exhibit 2

32. Dr Furst assessed the offender on 14 July 2021 for approximately 90 minutes via audio-visual link. He was aware of the nature of the offending and had before him the agreed facts, the offender’s criminal history and extracts from psychiatric records provided by treating psychiatrist, Dr Burhan to assist him.

33. Dr Furst notes that the offender was 68 years of age at the time of the assessment, and that she was residing with her brother in Woonona. They are the only surviving siblings of a sibship of six. Ms Thompson assists in the care of her brother, who has various health issues.

34. The offender was born in the Philippines where she completed schooling up to age 16. She did not pursue tertiary studies. She migrated to Australia at about age 30 and has been married on three occasions, the last of which was brief and occurred in 1999. Ms Thompson has had a varied career, working, inter alia, as a house cleaner, bartender, hotel receptionist, and most recently at a supermarket which ended in 2010 after a series of accidents that became the subject of a workers’ compensation claim that took many years to resolve. She also completed bookkeeping and receptionist courses at TAFE in her 30s. The offender has been in receipt of the Disability Support Pension over the last 10 years.

35. Ms Thompson reported no apparent mental health, drinking or illicit drug problems either in the Phillippines or Australia throughout the majority of her life until she developed mental health problems in her mid-to-late 50s. It was at about the time of the end of her employment at the supermarket that Dr Furst reports it appears that the offender’s symptoms and signs of chronic mental illness developed. These included expressing a belief that her employer was monitoring and ‘tracking’ her. This, in Dr Furst’s view, was indicative of paranoid delusions.

36. Treatment was initiated (see exhibit 5 below) with the antidepressant medication Endep for chronic back pain, and a low dose of Risperidone, 1mg daily, for her paranoid thoughts. Dr Furst notes the offender was referred for specialist psychiatric treatment as part of her workers’ compensation claim. Her current treating psychiatrist is Dr Abdulatif Burhan, to whom she was referred in 2014 after reporting hearing “voices” to her general practitioner. Aside from Ms Thompson’s psychiatric history, Dr Furst reports that she has no significant medical problems apart from chronic back and hip pain, which have been associated with irritability and insomnia.

37. On examination of the offender’s mental state, Dr Furst says that there were no obvious delusions, and that she was not hallucinating. The offender did not appear depressed or manic. Dr Furst notes that the only time Ms Thompson became emotional was when she was asked directly about the offending, to which Dr Furst says the offender became tearful and stated, “I hope God will know the truth.” In Dr Furst’s opinion, the offender’s thinking and emotional response was a function of self-pity rather than having any empathy toward the victim. Dr Furst also reports that the offender does not have insight and expressed no remorse. The offender otherwise appeared to be of average or slightly below average intelligence, and does not have an intellectual disability.

38. Dr Furst says that delusional disorders are characterised by persistent non-bizarre delusions, such as delusional thinking originating from normal everyday situations. The cause of delusional disorder is not yet fully understood. However Dr Furst notes that it can develop as a response to stress and may serve to preserve a positive self-image. Patients with delusional disorder, Dr Furst observes, tend to absorb selective information and form conclusions based on less information than healthy subjects, and they fail to consider alternative explanations. People who tend to be isolated, such as immigrants, appear to be more vulnerable to developing delusional disorder. Treatment options generally involve antipsychotic medication such as Risperidone (which the offender has been prescribed) and antidepressant medication which may assist for associated symptoms of depression and/or anxiety.

39. Dr Furst points out that the offending to which this matter relates predates the onset of the offender’s mental illness by some 15-20 years.

40. As to any vulnerabilities or difficulties the offender may face in custody, Dr Furst says that her management of chronic back pain may be exacerbated by the conditions in custody. Further, she is in a caring role for her brother, which in Dr Furst’s opinion would likely have a negative impact on her brother.

41. Dr Furst also says that the Covid-19 pandemic continues to affect NSW and that the prison environment presents a particularly high-risk for its spread due to communal facilities and a large number of unvaccinated inmates. Dr Furst says Ms Thompson is at a higher risk of contracting the disease in custody. Furthermore, due to isolation periods in custody, in Dr Furst’s view a custodial sentence would likely become more restrictive, arduous, stressful and burdensome because of the pandemic.

42. With respect to Ms Thompson’s prospects of rehabilitation and her risk of reoffending, Dr Furst says that the rehabilitation needs of the offender have largely been addressed in the community already through psychiatric input (detailed further below in Exhibit 5). Dr Furst notes that the offender continues to take medication and will likely continue to do so in the future. In Dr Furst’s opinion there is little benefit in engaging the offender in specific psychological counselling about the offending because of her denial of the offending and thus an absence of insight, and that there is no convincing evidence, in his view, that it would reduce her risk of reoffending, which he says is very low in any case.

43. Dr Furst notes that female sex offenders as a group are a rarity, the majority of whom offend in either the company of a male primary offender or are female teachers with some type of mental illness. The offender does not fit neatly into either category, but perhaps aligns more closely with the first category given part of the offending was conducted while having penile-vaginal sex with a man.

44. Dr Furst says it is reassuring that the offender has managed to maintain long-term relationships in the past, has no criminal history and has had 30 years post offence without further offending. She is not a violent or anti-social person. In any event, Dr Furst notes that as the risk of reoffending in males drops sharply after they reach 60 years of age, there is no clinical reason to suspect this pattern of declining risk would not be applicable to the offender.

45. Ultimately, Dr Furst is of the view that Ms Thompson’s risk of reoffending is so low and so negligible that it ought not be a relevant consideration in terms of her sentence and future treatment needs, apart from the standard imposition of protective measures such as the Child Protection Register. This, Dr Furst observes, would be more than adequate in addressing the issue of future risk.

Exhibit 3

46. Dr Jones prepared a psychiatric assessment of the offender to determine her fitness to plead. He assessed the offender in person on 26 October 2021 and had before him a referral letter dated 25 October 2021, agreed facts, her NSW criminal history, extracts from psychiatric records provided by her treating psychiatrist Dr Burhan and Ms Thompson’s self-report. Dr Jones notes the letters from Dr Burhan were of most relevance, as they indicate long standing problems with mood and psychotic symptoms. There is a likely diagnosis of delusional disorder, consistent with the offender’s persecutory thoughts that otherwise does not interfere with the offender’s day to day functioning and cognition.

47. Dr Jones notes that Ms Thompson was 68 years old at the time of assessment. She is the fourth of six children and came to Australia in 1993, and became a citizen in 1995. The offender has no children and reported two marriages, one in 1984 ending in divorce in 1992, and another for one year only in 1997. She has otherwise had no significant relationships in the last 20 years. The offender had been living in Woonona since 2015 with her brother, who came to Australia in 2014 whom she says helps her physically, emotionally and financially. Her brother is currently on a bridging visa but not working. The offender reported that she has been on the Disability Support Pension since 2010 after an accident in 2006 where she fell backwards on a concrete slab. She moved to Woollongong and had crutches and NDIS funding for a while. Ms Thompson reported she had been employed in Australia for approximately 10 years at a supermarket and during the same period at a nursing home, working these two jobs at the same time, up to 16 hours per day. She says she stopped work after the accident because her “body couldn’t do it and gave up.” Ms Thompson attends church two times a week and has friends there.

46. The offender was unclear of her next court date at the assessment, but understood she had maybe 3 charges in all which she described as “bad”. She reported having never been in trouble previously.

47. As to the offender’s psychiatric history, Ms Thompson reported that she had been “not very stable” when her mother died in 1983. At that time, she reported becoming very upset, worried, had hallucinations and was stressed. She found it hard to communicate and was therefore unable to continue her relationship. The offender first saw psychiatric doctors in about 1984/1985 when she was upset her marriage was not going well and her “brain was not working properly”. She remembers that she may have been given some tablets at this time.

48. Ms Thompson recalled that the next time she was given tablets was in 2013, when she saw a psychiatrist in Wollongong. She said that she told the doctor that she was always hearing noises, specifically someone calling her, and that she was not able to sleep as she was worrying too much and as a result her “brain was not settled.” Dr Jones notes that the offender has been on Endep (Amitriptyline 50mg) since about 2007 for chronic back pain, and takes Zopiclone 7.5mg every night to help with sleep and Risperidone 3mg daily which is an antipsychotic medication for hallucinations and “hearing things”. She believed that she took those tablets for a diagnosis of schizophrenia.

49. The offender denied any problems with drugs and alcohol or any specific medical history apart from ongoing pain and long standing anxiety. On examination of her mental state, Dr Jones says that there appeared to be some delusional content to her narrative, including that her neighbours are rearranging, replacing or stealing items in her apartment and which she reported has been happening persistently at previous residences. Her presentation was otherwise normal. Ms Thompson complained of bad sleep and that her appetite was not particularly good. She said she had sufficient concentration to read a couple of pages before bed and could drive. She was forgetting things all the time.

50. Dr Jones reports that the offender appeared to have some long-standing low grade persecutory ideas including that her neighbours are stealing or exchanging her household items, which she says happens to her wherever she goes. Dr Jones referred to the most recent assessment of the offender’s treating psychiatrist, Dr Burhan on 20 May 2021 and noted that at that time she was still taking medications which were proving effective in controlling her mental illness and that she had been relatively stable over time. Ms Thompson reported she sees her psychiatrist on a monthly basis and is consistent with her medication. She also sees a psychologist every 2 weeks or so, having done this 3 or 4 times.

51. In summary, Dr Jones reports that the offender presented as someone with a long-standing psychotic illness, which he notes is probably a delusional disorder. However this has been managed by her treating psychiatrist, a psychologist and by taking medication. With respect to fitness, Dr Jones says that the offender has a basic understanding of pleading and that she reported no particular difficulty communicating with her legal representatives. Her mental state has been relatively stable for a long time and on the balance of probabilities, Dr Jones finds that she is likely to remain stable throughout the court process.

Exhibit 4

54. The Intake Assessment Form for Community Corrections was completed on 7 February 2022 by Ms Shanahan and contains general demographic information about the offender. It was used to prepare the SAR. On page 3 is an offence map in which the offender details the main events and associated thoughts and feelings preceding the offending. Ms Shanahan wrote down what the offender said. It is noted that generally before the offending, the offender was newly married and that she was feeling happy, as life was good. She felt supported by her husband. The offender had just started a new job at a hotel and her husband was helping her get a licence as they lived apart at the time. It is stated there were no issues with drugs or alcohol, and that the offender never watched the victim who is noted on the form as a “promiscuous child” who would watch porn at neighbour’s house. (In oral evidence it was established that the offender said that the victim’s mother had told her this).

55. In relation to her attitudes toward the offending, it was noted that Ms Thompson stated that abuse and assault toward children was wrong, and that it was against the law. She is quoted as saying “we must respect children” and that she worries about a niece in the Philippines being around abuse. The offender spoke about the impact of the offending on herself; that she is worried all the time about her dignity as a woman gone, and that she is upset people think she is a lesbian as that is against the Lord. She was unaware of the impact of the offending on the victim as she did not talk to her. The offender describes herself as sometimes impatient but not aggressive, and she said that she does not like fighting.

56. The offender reported doing gardening, sewing and reading in her spare time and that she attends an IMS women’s group fortnightly. She does not trust many people. Her only income is a Disability Support Pension which covers expenses such as rent, petrol and utilities. The offender used to drink socially but since 1995 has not consumed any alcohol for religious reasons.

57. As to her mental health, the offender reported no history of self-harm but has a lot of stress and worry. She found it hard to move on when her mother died in 1983, reporting that she cried all the time and her mind became blank. The offender nominated Risperidone as a medication she takes.

58. The offender listed her goals and priorities as to be safe and to be with and to support her brother. She wants to become a registered nurse. To do this, the offender says she needs to focus on herself and put other people first. She reported that she lost her job after being injured at work. She attended church twice per week. She denied the offending.

59. As to the file notes (all completed by Ms Shanahan), the note dated 7 February 2022 discloses that the offender lives with her brother. She is casually employed as a cleaner and receives cash in hand. She otherwise receives the Disability Support Pension. Centrelink assisted her with budgeting.

60. The file note dated 11 February 2022 discloses a second interview with the offender. Ms Shanahan observed that the offender struggled to understand the questions being asked and the offence map had to be completed again. Ms Shanahan was unsure if the offender was avoiding talking about her circumstances at the time of the offence or if she genuinely misunderstood.

61. The offender stated that she was struggling with suicidal thoughts and would constantly call Lifeline. After discussion, Ms. Shanahan understood that this occurred years after the offending occurred. The offender said that the offences did not happen. She claimed that the victim was a promiscuous child who would be out all night and watch porn at the neighbour’s house. Ms Thompson said that the victim’s mother had told her this. She said that abuse towards children was wrong and against the law and that we need to respect children.

62. The file note dated 22 February 2022 contains a confusing history. On that date Ms Thompson accepted that the victim had stayed at her house. She said that a man came in and put his hand on her leg and she told the victim not to come back to her unit as it was dangerous. Ms Shanahan told Ms Thompson that she had previously told her that the victim had never been to her home, but Ms Thompson denied saying that.

Exhibit 5

63. The bundle of documents under the hand of the offender’s treating psychiatrist Dr Burhan demonstrate that the offender has had a history of delusional disorder or schizophrenia since at least 2014. Dr Burhan notes that the offender suffers from paranoid delusions, in particular being suspicious of others monitoring her, primarily a former employer. She believes that she is monitored continuously most of the day, every day by her previous employer. These symptoms are accompanied by hearing voices which support her belief that she is being monitored.

64. In his letter dated 19 June 2014, Dr Burhan was of the view that the offender could not make rational and reasonable decisions about her workers’ compensation case and that a tutor should be appointed to assist her in that regard. The offender was being medicated with Endep and Risperidone.

65. In May 2017, Dr Burhan said that he had been treating the offender for delusional disorder and depression for 3 and ½ years.

66. Dr Burhan notes in a medical certificate dated 1 March 2019 that the offender suffers from chronic pain and a delusional disorder. Her ability to function independently can at times become compromised. He said that the presence of the offender’s brother in her life is a very significant factor favouring her stability, stating that if he were denied a visa extension in Australia, in his opinion, the offender would deteriorate very quickly, and that her care would become more complex to manage.

67. Ms Thompson gave evidence on both 9 June 2002 and 19 August 2022. In my opinion, her affect was that of a person clearly suffering from a significant mental illness. Her evidence, which she gave through an interpreter, was very difficult to follow or understand. She appeared to suffer significant poverty of speech. She denied saying many of the things recorded in Ms Shanahan’s report, in particular her denial that she had said that the victim was promiscuous (which required the Crown to call Ms Shanahan in its case in August). However, the offender was able to give evidence – clearly – that her actions 35 years ago had destroyed the victim’s life and her reputation. This comment, coupled with her comments to Ms Shanahan about the evils of child sexual assault generally demonstrated appropriate remorse.

68. I observe that some care was taken to ensure that the offender adhered to her plea and that she wished me to sentence her taking into account the matter on the Form 1.

69. Ms Shanahan, who is an experienced social worker, gave evidence on 19 August 2022. I accept her evidence in its entirety. She agreed that the comments made by the offender to her, together with her comments in June showed some insight into her offending and appropriate remorse. She agreed that the offender demonstrated an affect suggestive of significant mental illness which she believed dated to about 2005, at the time of her work injury. She was firmly of the view that the offender required a long period of supervision and that the plan contained in the SAR ought to be implemented over a considerable time.

Objective Seriousness

70. Both the Crown and Mr Juhasz submitted that the offending was at about the mid-range. Mr Juhasz submitted that it was just below as the offending was of reasonably short duration and was a one-off incident. The Crown did not dispute that the offending was relatively short, but observed, correctly, that together with the Form 1 incident, the offending took place over a school holiday period. Ms Stefani conceded that the victim was toward the upper range of the age the subject of the charge, but she noted that the agreed facts speak of the charged act causing pain. There was an age difference of more than 20 years between the victim and the offender.

71. It is not in dispute that an aggravating factor is present pursuant to section 21A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act): that there was an abuse of trust.

72. The offending is objectively serious, the extent of which must take into account all the circumstances of the case. It is erroneous to rank forms of sexual intercourse in a hierarchy to determine the objective seriousness: R v Gavel [2014] NSWCCA 56, R v Greenwood [2014] NSWCCA 64.

73. In my opinion, taking into account the legislative yardstick of the maximum penalty and the submissions advanced by both the Crown and Mr Juhasz, the offending sits at somewhere about the mid-range of objective seriousness.

Subjective Circumstances

Plea of Guilty

74. The offender pleaded guilty 7 weeks before the commencement of her trial. It is agreed that she is entitled to a discount of 10% for the utilitarian value of her plea of guilty.

Prior Criminal History

75. The offender has no prior or subsequent criminal history. She has led a blameless life but for the significant offence (and the Form 1 matter) before the court. The Crown accepted in written submissions that her lack of previous convictions and her prior good character were mitigating factors pursuant to sections 21A (3)(e) and (f) of the Sentencing Act; ie that those factors were not of assistance to the offender in the commission of the offence. For the purposes of this sentence, I accept that the offender is entitled to some leniency because of her lack of prior criminal history.

Remorse

76. Counsel for the offender submitted that Ms Thompson has shown genuine remorse and insight. Having regard to all of the evidence, I am satisfied that the offender is genuinely remorseful. Taking into account the offender’s mental illness and her difficulties in communication, it is unsurprising that she has been unable to express her remorse until recently. It is true that it is belated, but her recognition of her wrongdoing benefits the victim, who has been waiting a very long time for her acceptance of responsibility. Furthermore, Dr Furst thought that there was no benefit in engaging the offender in counselling about the offending because of her denial that the offending occurred. Now that the offender has demonstrated some remorse and insight, in my view the plan articulated by Ms Shanahan would be of benefit to the offender.

Time in custody

77. The offender was in custody for one day, and it is agreed that I should backdate any sentence by one day.

General Deterrence and denunciation

78. The Crown submits that general deterrence and denunciation are important in cases of child sexual abuse. It is trite to say that such actions are not to be tolerated and that a message must be conveyed to the community that those who engage in such activities will be severely punished. General deterrence and denunciation clearly have an important role to play in this sentencing exercise as the offence is serious.

Personal Deterrence and Prospects of Rehabilitation

79. It was acknowledged by the Crown that the offender’s risk of re-offending is low. I adopt Dr Furst’s comment that the risk is so low as to be negligible for the reasons set out in his report.

80. Further, the offender’s belated acceptance of responsibility and expression of remorse means that she can likely meaningfully engage in offending specific counselling and therapy.

81. Taking all matters into account, I find that the offender’s prospects of rehabilitation are good, and that she is very unlikely to re-offend. Taking into account the isolated nature of the offending, the negligible risk of re-offending and the fact that the offender has a significant psychiatric illness, in my opinion personal deterrence has virtually no role to play in the sentencing exercise.

Mental Health

82. There is no dispute that at the time of the offending, the offender was not suffering from a psychiatric illness or suffering from the effects of childhood disadvantage which may have reduced her moral culpability.

83. However, It was submitted by Mr Juhasz that the offender’s diagnosis of delusional disorder was of some significance in the sentencing exercise.

84. In Luque v R [2017] NSWCCA 226 at 113- 114, Hamill J said the following:-

On 16 August 2017 I joined in orders allowing the applicant’s appeal against sentence and sentencing her in a way that resulted in her immediate release from gaol. I have now had the great benefit of reading the draft judgment of Button J. My reasons for joining in the orders are essentially the same as those of his Honour. However, I would like to make a few additional observations.

The first is that a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender’s mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender’s difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.

85. In my opinion, the mental condition of Ms Thompson (which has been present on my estimation for more than 15 years and is debilitating) mitigates the punishment that ought to be visited on her for reasons similar to those advanced by Hamill J. As I have said, in my view the offender is not an appropriate vehicle for a sentence containing a (significant if any) component of specific deterrence.

Covid-19

86. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence, and indeed at the date of this sentence, it continues to rage in the community. Indeed, Dr Furst is of the view that the offender would be particularly vulnerable, for reasons set out in his report.

87. Correctives NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions include lockdowns, suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by the offender. In this case there is evidence from Dr Furst about the likely adverse impact on this particular offender. Whilst the impact is difficult to quantify with any degree of specificity, I take the pandemic into account as a matter to synthesise on sentence.

Hardship to Third Parties

88. That the incarceration of the offender will cause hardship to her brother is accepted. However, this is a sentence for a State offence (rather than a Commonwealth offence: see Tataan v R [2022] NSWCCA 75), and on the limited evidence available to me I do not find that the circumstances amount to “highly exceptional” such that it would be inhumane to refuse to take the hardship to the offender’s brother into account: R v Edwards (1996) 90 A Crim R 510.

Hardship in Custody

89. It was not disputed by the Crown that Ms Thompson’s incarceration would be more onerous on account of her advanced age, the Covid environment and her separation from both her psychologist and psychiatrist with whom she has had long therapeutic relationships. I accept the comment by Dr Burhan, who was not required for cross-examination by the Crown, that her mental condition is likely to deteriorate when she is separated from her brother. I find that the offender’s time in custody will be onerous.

Section 25AA of the Sentencing Act

90. The offender will be sentenced in accordance with section 25AA(1) of the Sentencing Act, and I have had regard to the trauma of sexual abuse on the victim in accordance with section 25AA(3) of the Sentencing Act.

Form 1

91. As indicated earlier, I have been asked to take an offence into account on a Form 1 basis when sentencing the offender, the details of which I have already set out above. In this matter, this has the effect of slightly increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, the increase operates to recognise the community’s entitlement to retribution for the Form 1 offence, although the focus remains on the primary offence. I have taken this offence into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Special Circumstances

92. Counsel for the offender submitted special circumstances exist in this case. In oral argument on 19 August 2022, Ms Stefani for the Crown conceded that special circumstances exist.

93. I indicate that my reasons for deviating from the statutory ratio are the special circumstances that I find, that is that this is the offender’s first time in custody, her need for a longer period of supervision as suggested by Ms Shanahan, and the fact that she will not have access to her long-time treating psychological and psychiatric practitioners. I have deviated to a ratio of 50% because of special circumstances.

Threshold

94. Mr Juhasz submitted that this was a rare case in which I would find that the section 5 threshold has not been crossed. It was submitted that a Community Corrections Order, though rare for offending of this kind, is a viable sentencing option because of the unique circumstances of this case.

95. Notwithstanding Mr Juhasz’s submission, having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate.

Sentence

96. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s need for continuing psychiatric and psychological review and programmes targeted at her rehabilitation.

97. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

98. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guidepost of the maximum penalty and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

99. Having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment of 3 years 9 months, less 10% for the plea of guilty, which amounts to 3 years 4 months (rounded down).

100. I set a non-parole period of 1 year and 8 months to reflect my finding of special circumstances.

Orders

101. Ms Thompson, please stand.

102. I convict you of the offence of sexual intercourse with a child under 10 years of age contrary to section 66A of the Crimes Act.

103. Taking into account the matter on the Form 1 and allowing for a 10% discount for your plea of guilty, I sentence you to a term of imprisonment of 3 years and 4 months. I backdate the sentence by 1 day to allow for the day you spent in custody.

104. Your sentence is to commence on 1 September 2022 and expire on 31 December 2025. I impose a non-parole period of 1 year and 8 months. Your non-parole period will expire on 30 April 2024 on which date you will be eligible for release to parole.

105. I warn you that section 25C of the Crimes (High Risk Offenders) Act 2006 applies as the offence is a serious sexual offence. Application can be made by the State to the Supreme Court, and if that court concludes to a high degree of probability that you pose an unacceptable risk of committing another serious offence if not kept in detention or under supervision, then an order can be made for your continuing detention or supervision.

106. Ms Thompson, do you understand the orders I have made?

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Decision last updated: 19 October 2022