R v Threlkeld

[2019] NSWDC 695

District Court

New South Wales

Medium Neutral Citation:	R v Threlkeld [2019] NSWDC 695
Hearing dates:	15 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 127-130
Catchwords:	CRIMINAL LAW – sentencing – sexual intercourse with a person under the age of 16 – indecent assault of a person under the age of 16 – significance of sexual intercourse and other sexual activities being consensual – significance of offender’s anxiety and depression at time of offending – significance of offender’s assistance to authorities relating to unrelated offences between the commission of the various offences
Legislation Cited:	Crimes (Sentencing Procedures) Act 1999 (NSW) Crimes Act NSW 1900 (NSW) s 66C(3)
Cases Cited:	Cahyadi v The Queen [2017] NSWCCA1 CTM v R (2008) 247 ALR 1 Fisher v R [2008] NSWCCA 129 Hordern v R [2019] NSWCCA 210 Muldrock v The Queen (2011) 244 CLR 120 R v KNL (2005) 154 A Crim R 268 R v Sea (NSWCCA, Unreported, 13/8/90 R v Tuala [2015] NSWCCA 8 Wakeling v R [2016] NSWCCA 33 R v Wright [2017] NSWCCA 102 R v XX [2017] NSWCCA 90 R v Sea (NSWCCA, Unreported, 13/8/90)
Category:	Sentence
Parties:	Director of Public Prosecutions Mr P Threlkeld
Representation:	Counsel: Mr Evans for the Director of Public Prosecutions Mr W Shukoor   Solicitors: Solicitor for the Director of Public Prosecutions Sydney Criminal Lawyers
File Number(s):	2017/277139
Publication restriction:	S 578A of the Crimes Act 1900 (NSW) applies. As such, pseudonyms have been used.

SENTENCING REMARKS

1. The offender pleaded guilty to 5 counts on an indictment. All involved sexual offences against the same victim (JW) in a date range 24 January 2015 to 11 July 2015, when the victim was under the age of 16. The offender was indirectly related to the victim: he is the cousin of a woman (MP) who is married to a man (GP), the paternal grandfather of the victim.

2. The offender has also requested that Form 1 offences be taken into account in relation to most of the principal counts. A table of the relevant offences and the maximum penalties (there being no standard non-parole periods for the offences) appears as below.

Count	Offence	Description of conduct	Maximum penalty
1	S 66C(3) of Crimes Act	On 24 January 2015, at Rydalmere the offender had sexual intercourse with the victim, by inserting his fingers in her vagina, when the victim was a child above the age of 14 and under the age of 16.	10 years’ imprisonment
Form 1(seq 5)	S 66C(3) of Crimes Act	On 24 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by performing cunnilingus on her, when the victim was above the age of 14 and under the age of 16.	10 years’ imprisonment
2	S 66C(3) of Crimes Act	On 24 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by engaging in oral sex (fellatio), when the victim was a child above the age of 14 and under the age of 16.	10 years’ imprisonment
Form 1 (seq 7)	S 66C(3) of Crimes Act	On 25 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by performing cunnilingus on her, when the victim was above the age of 14 and under the age of 16.	10 years’ imprisonment
3	S 66C(3) of Crimes Act	Between 1 March and 30 April 2015, at Rydalmere, the offender had (penile/vaginal) sexual intercourse with the victim, when the victim was above the age of 15, but under the age of 16.	10 years’ imprisonment
4	S 66C(3) of Crimes Act	Between 8 and 11 July 2015, at Gerringong, the offender had (penile/vagina) sexual intercourse with the victim, when the victim was above the age of 15, but under the age of 16.	10 years’ imprisonment
Form 1 (seq 12)	S 66C(3) of Crimes Act	On 9 July 2015, at Gerringong, the offender had sexual intercourse with the victim, with each of them engaging in oral intercourse.	10 years’ imprisonment
5	S 66C(3) of Crimes Act	Between 8 and 11 July 2015, at Gerringong, the offender had (penile/vagina) sexual intercourse with the victim, when the victim was above the age of 15, but under the age of 16.	10 years’ imprisonment
Form 1 (seq 14)	S 66C(3) of Crimes Act	On 10 July 2015, at Gerringong, the offender had sexual intercourse with the victim, with each of them engaging in oral intercourse.	10 years’ imprisonment

The offending conduct

3. The following summary of the offending conduct is taken from Agreed Facts placed before the Court.

4. The offender resided with a couple (MP and GP) at Rydalmere since October 2007. The couple were given custody of the victim in November 2008. The offender, who was the cousin of MP, often visited the address.

5. Between September 2013 and June 2014, the offender resided at the Rydalmere address. During this period he and the victim became friends as they shared an interest in guitars. The offender returned again to the address in November 2014.

First episode

6. On 24 January 2015, the offender and victim were alone in a caravan parked at the side of the house in Rydalmere, talking and playing computer games. The victim kissed the offender on the cheek, stating that she was just ‘playing around’. The offender pushed her away. This was not the first time this had occurred: to the victim this was “just a game we had” that had been occurring since September 2014.

7. After some time in the caravan on this day, the offender and the victim kissed each other on the lips. The kissing became longer in duration and more passionate before they started to touch each other over all their bodies. Eventually, MP called out from the house to say that it was late and time for the victim go to bed. The victim said ‘no’ and MP went to bed, leaving the offender and victim in the caravan.

8. The offender fondled the victim’s breasts and the victim fondled the offender’s penis.

9. The offender then fondled the victim’s vagina and inserted his fingers into the victim’s vagina. This continued for some time until 1 or 2 in the morning. This is the conduct the subject of count 1.

10. The offender then asked the victim to “go down” on him. The victim put her mouth on the offender’s penis and performed fellatio for a short time, which, in the victim’s estimate, was maybe a minute. This is conduct which is the subject of count 2.

11. The offender performed cunnilingus on the victim, licking sucking and kissing her vagina. This is the conduct that is the subject of the Form 1 offence to count 1.

12. At about 3am on 25 January 2015, the offender asked the victim to promise that she would not tell anyone. The victim promised and they left the caravan and went to their respective bedrooms inside the main house.

13. Later that morning, MP and GP went on a picnic. The victim declined to accompany them, and remained at home with the offender.

14. After MP and GP left the house, the victim and offender went to the victim’s bedroom where they kissed. The victim took off her underwear and the offender performed cunnilingus on her. This is the conduct which is the subject of the Form 1 offence to count 2.

15. At the time of the offending conduct for the first episode, the victim was 14 years of age. She turned 15 a few days later on 4 February 2015.

16. Thereafter, the offender and victim engaged in further sexual acts. Later the victim told police that she encouraged the offender to “keep going”. By this, she explained, she wanted to engage in penile vaginal sexual intercourse, but the offender refused (to this point) as he thought she was a virgin.

Second episode

17. Sometime in March or early April 2015, whilst engaging in sexual activity, the victim encouraged the offender to “keep going”. The offender initially declined, for the reason explained a moment ago, but ultimately agreed after the victim told her that she was not a virgin. They engaged in penile vaginal sexual intercourse. This is the conduct that is the subject of count 3. After a short time, the offender removed his penis before ejaculating. He was not wearing a condom.

18. Within a week, the victim and offender engaged in penile/vaginal intercourse. This time the offender wore a condom and continued until he ejaculated.

19. From this episode until July 2015, they engaged in further sexual activity.

20. In May 2015, the victim disclosed to the offender that she had been abused by her grandfather (GP) since the age of 7. The offender encouraged her to tell her grandmother (MP), which the victim did on 3 June 2015. After this occurred, the offender became angry with MP since, in his view, she did not go far enough: she did not ‘kick’ GP out of the house. Two days later, this is what MP did.

21. Thereafter, MP asked the offender to leave the house after tension between the offender, MP and the victim. The offender encouraged the victim to report her abuse by GP to the police. The victim did this on 20 June 2015. She was interviewed by the police on 2 July 2015. On 7 July 2015, the offender gave a statement to police regarding the victim’s allegations against GP. The statement featured a reference to the offender spending more time alone with the victim ‘in order’ for her to avoid GP.

22. On 9 July 2015 the victim attended a counselling session. After this, she returned to Rydalmere. The offender arranged for himself and the victim to travel to the offender’s home in Gerringong.

Third episode

23. After arriving at Gerringong, the victim and offender stayed the night at the premises. They shared a bedroom, with the victim using the bed and the offender using a mattress on the floor. They went to bed at about 11pm.

24. After the offender’s sister went to bed and was asleep, the offender got into the victim’s bed where they engaged in penile/vaginal intercourse and oral sex on a number of occasions until falling asleep in the early hours of the morning.

25. At one point, they started to kiss and fondle each other’s genitals. The victim was on her left side facing the wall and the offender thrusted his penis in to her vagina. This is the conduct the subject of count 4. The offender changed condoms each time he ejaculated or took the condom off putting another one on.

26. The victim and offender engaged in oral sex at about the same time. This is the subject of the Form 1 offence to count 4.

Fourth episode

27. The offender’s sister went to work around 7am the next morning, being 10 July 2015. After she left, the offender and victim woke up, had breakfast before engaging in further acts of sex before the offender got tired, they left the Gerringong premises and returned to Rydalmere.

28. During this period, the offender and victim engaged in penile/vaginal sexual intercourse. This is the subject of count 5. They also engaged in oral sex. This is the subject of the Form 1 offence to count 5.

Circumstances occurring after the offending conduct

29. The offender and victim returned to Rydalmere. MP noticed that the victim looked pale. She asked the victim what was wrong. The victim told MP that she did not get any sleep. The offender told MP that the victim was having ‘nightmares’. The offender left soon after and did not stay the night.

30. On 30 July 2015, MP sent an email to the offender asking him not to see the victim again and limit the forms of contact to the victim. But the offender and victim maintained contact through ‘Skype’, talking almost daily for a while. Eventually, contact stopped around November 2015. In December 2015, the victim disclosed the offending conduct to her then boyfriend, her great grandmother and MP. Report was made to Child Protection Helpline in January 2016 and an investigation thereafter commenced by the Child Abuse Squad in Parramatta.

31. Mr Crown and the offender’s counsel both noted that the Agreed Facts referred to several uncharged acts. It was common ground between them that their inclusion was only relevant to disproving that the offending conduct could be said to be isolated and cannot be taken as an aggravating circumstance (Fisher v R [2008] NSWCCA 129 at [19]).

Impact on victim

32. The victim read out in Court a victim impact statement, which I have taken into account. It was accepted by both parties that much of what the victim said went beyond what the Court can take into account. This was primarily because the victim referred to a range of other offences perpetrated upon her by other persons and other circumstances of harm which could not be fairly attributable to the offender.

33. I broadly agree with the Crown’s submission that the content of the statement indicated that the offending conduct caused her: guilt and shame; trust issues in relation to romantic involvement, difficulty working, memory triggers of the offender and a need for on-going psychological treatment.

34. There was no suggestion of pain, hurt, or physical harm or injury sustained during or as a result of the offending conduct.

35. Without seeking to diminish in any way the profound distress which offender’s conduct has caused the victim, the matters of which the Crown relies upon in this regard are familiar consequences of offending conduct of the kind in question[1] which are factored into assessment of the seriousness of the offending conduct.

Objective seriousness of the offences

1. See R v Tuala [2015] NSWCCA 8 as to the use of a victim impact statement for an offence of this kind

General

36. Before addressing specific counts, I will deal first with features common to all offences.

Maximum penalty

37. Plainly the size of the maximum penalty for the offence betokens its very serious nature. I do note, however, that the offence itself may be capable of being dealt with summarily. I do not suggest, by any means, that it was inappropriate for these charges to be brought in this Court.

Exploitation

38. Probably the most serious feature relating to the level of seriousness is the extent to which the offender is seen to have exploited the victim: R v Sea (NSWCCA, Unreported, 13/8/90, per Badgery-Parker J).

39. For reasons that I will come to, the level of exploitation differs according to the discrete circumstances of each offence.

Age

40. The age of the victim is plainly factored into the element of the offence and the circumstance that the victim is younger than the age of 16 cannot be regarded as an aggravating factor. That said, there may be a difference between the victim being aged, say 14 or aged just before 16, at the time of the offending. The younger the child the more serious the offence: R v T (1990) 47 A Crim R. Here the victim was either close to or beyond the age of 15 at the time of the offending conduct.

41. At the time of the offending the conduct, the offender was well over twice the age of the victim.

Offender’s awareness of victim’s age

42. As indicated by his pleas, the offender did not invoke a defence of honest and reasonable mistake of fact as to the victim’s age (CTM v R (2008) 247 ALR 1).

43. The objective seriousness would be heightened if the offender knew of the victim’s actual age than if he was ignorant (R v KNL (2005) 154 A Crim R 268 at [42]-[43]). I find that he did not know of the victim’s age.

Willingness to participate

44. It does not infringe the De Simoni principle for a sentencing judge to take into account whether the complainant actually consented to the offending act when considering its objective seriousness: Wakeling v R [2016] NSWCCA 33 at [47]-[49].

45. I find that in the case of each offence, the victim did consent to the offending conduct and this is relevant to my assessment of the objective seriousness of each offence.

Absence of grooming

46. The Crown fairly conceded that this is not a case where there was a history of ‘grooming’ by the offender in the common case for offences of this kind. The offender did not seek out the victim.

Count 1

47. The offending conduct was not planned or organised. The victim and offender were alone in a caravan, just as they had been alone many times previously, engaged in innocent pursuits. The offender did not plan to have sexual intercourse in the caravan. The sexual activity arose spontaneously, in a context where, over a period of months, and after rebuffing the victim’s attempts to kiss him, the offender gave in to his attraction to her and after a period of kissing, the victim and offender touched each other over their bodies. One thing led to another before sexual intercourse arose through digital penetration of the victim’s vagina. This activity occurred for a period of time; although the evidence is not precise about that.

48. The conduct was consensual. There was no threat of use of violence (matters of aggravation which could not, in any event, be relied upon under the De Simoni principle). The circumstance of the victim’s age is factored in as an element of the offence. To the extent that the victim was ‘vulnerable’, that was an internalised mental state, not (at that point) known to the offender, arising from her earlier abuse. I do not regard the consideration in s 21A(2)(l) as being applicable. Similarly, there was no taking advantage of the victim’s mental state. The conduct was opportunistic in nature.

49. Not long after the offending conduct for this count, and count 2, the offender asked the victim to promise she would not tell anyone. This evinces knowledge of wrongdoing that elevates the offender’s culpability.

50. In my view, this conduct falls at the low end of the scale of objective seriousness for this type of offence.

Count 2

51. The offending conduct here was part of the same episode embracing count 1. The offending conduct was of short duration: according to the victim herself, the oral sex she performed on the offender was about a minute.

52. In my view all of the other matters which I described in relation to count 1 apply to this count as well.

53. I also assess the offending conduct as falling at the low end of the scale of objective seriousness for this type of offence.

54. For counts 1 & 2, respectively, the Form 1 offences are relevant to establishing that the respective principal offences were not isolated instances of misconduct. I will return later in these remarks to the significance given to these additional offences.

Count 3

55. The conduct the subject of this offence occurred two months or so after the episodes occurring that gave rise to counts 1 & 2. Up to this point, the evidence indicates the offender’s reluctance to engage in penile/vaginal intercourse. This was because of his belief that the victim was a virgin. In the prelude to the offending conduct, the victim dissuaded the offender of this belief. These circumstances indicate a level of insight (however limited) as to the wrongfulness of conduct; which marks some contrast with the earlier offences; which were more spontaneous. Nevertheless, I do not find that there was any level of planning associated with this conduct. But certainly, by now, the offender had the opportunity to reflect on his past wrongdoing which was the subject of counts 1 and 2 and desist from further wrongdoing.

56. It is relevant that the offending conduct here was not only consensual but engaged in at the request of the victim. The sex lasted only for a short time and the offender did not ejaculate; which removed any risk of pregnancy. It was a concern, however, that the offender did not wear a condom. I do not consider that there was any significant level of exploitation. The reference in the agreed facts to other uncharged acts signifies that the offending was not an isolated instance of misconduct.

57. I assess the offending conduct as falling at the middle end of the range of objective seriousness for an offence of this type.

The revelation of the victim’s past abuse by her grandfather

58. The offending conduct for count 4 (and count 5) occurred in July 2015. Before then, the offender learnt of the horrifying news of the victim’s abuse by her grandfather. That set in train a number of events from May through to early July 2015, which included the offender’s provision of a statement to police on 7 July 2015. What was notable about that statement was the offender’s explanation for how he came to spend more time alone with the victim: it was, he reportedly said to “avoid” the grandfather. That statement understated the true position to the police and in my view, amounted to a material non-disclosure of the true relationship that the offender had with the victim to that point.

58. These events also put the offender on notice of her peculiarly fragile state of mental health.

Count 4

60. On 9 July 2015, being the same day that the victim attended a counselling session, the offender drove the victim to Gerringong to stay at the offender’s sister’s home. The evidence indicates that an arrangement was made whereby the offender and victim shared the same bedroom, with the victim in a bed and offender on a mattress; but how and why that came about is not clear. Short of a situation where there were limited reasons, from the outside, it may be hard to conceive that the sister would have suggested this arrangement herself but it is not necessary to speculate. The evidence does, however, indicate that once it became clear that the offender’s sister was asleep, the offender entered the victim’s bed to engage in penile/vaginal intercourse. That is indicative a level of surreptitious thinking by the offender, if not also of the victim, but it is not clear whether the offender was expressly encouraged by the victim. I do not consider that the offender is entitled to a finding, which was applicable to counts 1, 2 and 3, that there was an absence of pre-planning.

61. It is clear that the conduct was consensual. It amounted to a resumption of the sexual relationship that was interrupted two months before. The penile/vaginal intercourse repeatedly occurred as it went on for hours into the morning. The offender wore condoms so there was no risk of pregnancy. As at 9 July 2015, the victim was aged about 15 years, 5 months.

62. This offending conduct was exploitative and predatory. As I have said, the victim would have been in a fragile state only having just provided information about her previous abuse by her grandfather. The offender provided information to the police himself and had, as I have indicated, encouraged the victim to do likewise. That evinced his appreciation of the wrongfulness of sexual conduct towards children. For the offender to engage in sexual activity with the victim at a point which was contemporaneous with his advice to the victim to report her grandfather was highly culpable as it involved his taking advantage of the victim’s precarious emotional state when the offender knew that what the victim was likely to be looking for was his emotional support. In this sense, but for the equivocation of the Crown as to the applicability of this consideration [2] , I may have been inclined to think that the conduct arguably amounted to a breach of trust pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedures) Act (the ‘Act’). It is not however, necessary to make that finding. It is sufficient to find that the offender’s exploitation of the situation was of a high order.

    2. The Crown’s written outline of submissions, par 32

63. The facts indicate that, after the offending conduct occurred later in the morning, the offender spoke to the victim’s grandmother and misleadingly attributed the victim’s pale appearance to her suffering nightmares. This also evinces an appreciation of wrongdoing which further elevates his culpability.

64. I assess this conduct for this offence as falling at above the mid-range of objective seriousness.

65. I take into account the additional Form 1 offence for this count which, for present purposes, again indicates that the conduct was not isolated.

Count 5

66. This offending conduct was, in a sense, a continuation of the conduct that marked count 4; albeit that it was broken up by a few hours. It occurred after the offender’s sister had left her home. That again, betokens surreptitious thinking.

67. The agreed facts note that the sexual activity was penile/vaginal intercourse, but is vague as to how long the conduct went on for. It is not apparent whether the offender engaged in unprotected sex. I am not prepared to make any finding adverse to the offender in this regard.

68. The considerations I have adverted to in relation to count 4 apply to this count as well.

69. I assess the conduct for this offence as falling at above the mid-range of objective seriousness.

70. I take into account the additional Form 1 offence for this count which, for present purposes, again indicates that the conduct was not isolated.

Other suggested aggravating factors

The significance of vulnerability

71. I also consider that, were it not for the circumstance that the victim’s vulnerability was taken into account under the rubric of assessing the objective seriousness of the offending conduct for counts 4 & 5, I would have considered this aspect as an aggravating circumstance for each of those counts. Although the consideration of vulnerability, within the meaning of s 21A(2)(l) is not established merely on account of the victim’s age (which is already subsumed as an element of the offence), the combination of her age and the situation where, earlier in the day of the offending conduct, she gave a police statement, means that, in my view, she was ‘vulnerable’. Since, however, I have taken into account her vulnerability as part of the assessment of objective seriousness, it would involve double counting to consider that aspect as an aggravating circumstance as well.

The home of the victim

72. The Crown submitted that the conduct in counts 1 & 2 occurred in the victim’s home. The conduct occurred in a caravan parked at the side of the house, in which the offender and victim had often been together beforehand, playing computer games. That, I consider, makes good the presence of the aggravating circumstance, for the purposes of s 21A((2)(cb).

THE OFFENDER’S SUBJECTIVE CASE

Age & background

73. The offender was born on 12 May 1975, which means that at the time of the offending he was 39 or 40 years of age (depending on the relevant count).

74. In relation to his background, and in relation to his mental condition, the offender relied upon a clinical psychologist’s report of Mr Chafic Ahwit. Mr Ahwit has been a practising psychologist for 10 years, and has post-graduate qualifications. The opinions he expressed in his report were not challenged by the Crown.

75. I adopt the references made by the psychologist to the offender’s background. Mr Ahwit chronicles that the offender had a happy childhood, with his parents having a stable marriage. The offender finished school at the Year 10 level and thereafter completed some short courses in IT and web design.

76. The offender informed Mr Ahwit that he was a shy child, growing up. He did not have many friends and for those that he had, most of the time spent with them was on computer games. He did not like going out much.

77. In terms of his employment, the offender was 18 when he commenced employment with a recycling company, but only for very short duration. He commenced work as a floor sander and polisher, which he did for 4 years. Thereafter he commenced work as a factory worker at the age of 27. For a period of time, the offender travelled to England and found work for an automotive company. He worked in England for 8 years. He returned to Australia in 2013 and struggled to find employment for a period. From there, until the time of his offending, the offender was not in regular employment. To help pass the time, he was starting to learn about the stock market.

Psychological evidence

78. The offender told his psychologist that up to the age of 29, he had had only one relationship. As noted earlier, he regarded himself as being shy around people since childhood. The offender did however indicate that his experience in England helped him come out of his shell more and that he felt more confident. In the last 5 years in England he had a significant relationship, but it ended when he returned to Australia in 2013. He said that as he struggled to secure enduring employment, he lost his (social) confidence. He had few friendships and became socially isolated. Added to this, in 2014, his mother began to fall ill, causing him to move back to his place where he grew up (Oakflats).

79. Mr Ahwit said the offender presented to him with symptoms of anxiety and depression. Part of the depression related to the offender hitting someone on the road in the late 1990s. This, in fact, is a reference to the offender’s prior criminal history which featured him committing the offence of negligent driving occasioning death, for which he was charged in 1999. At that time the offender would have been about 25 years of age. The offender told Mr Ahwit that the episode had haunted him; which was part of the reason for his travel to the United Kingdom.

80. Mr Ahwit reported that results from psychometric testing indicated that the offender suffers from severe depression. He diagnosed an Adjustment Disorder, Mixed Anxiety and depressive symptoms.

81. I shall refer to what Mr Ahwit said was reported to him by the offender regarding the circumstances of the offending further below. For present purposes, I note Mr Ahwit’s opinion of a psychological nexus between his underlying psychological condition and his offending. Specifically, he opined that the offender’s anxiety and depressive symptoms significantly weakened his ability to resolve a range of issues he was dealing with; and especially his decision making ability at the time of his offending behaviour.

82. As indicated, the Crown did not challenge this evidence. The Crown accepted that the evidence of the offender’s disorders did serve to lessen his moral culpability; and that it was relevant to the applicability of the principle of general deterrence. The Crown maintained, however, that the evidence did not reduce the objective seriousness of the conduct.

83. Demonstrable mental disorders can, amongst other things, lessen the seriousness of offending; in terms of moral culpability[3] .

    3. Muldrock v The Queen (2011) 244 CLR 120 at [58]

84. I find it instinctively difficult to reconcile the proposition that, on the one hand, the offender’s decision-making, at the time of the offending conduct, was impaired by his depression or anxiety with his avowedly full appreciation of the seriousness of the offence and his asserted ‘insight’.

85. The difficulty is compounded since in this case, the agreed facts indicate, as the Crown pointed out, that after having engaged in the conduct comprising the first three counts, the offender responsibly and properly assisted the victim once he had been informed of the latter’s abuse perpetrated upon her by her grandfather. Such assistance even extended to the provision of a statement to the police. That is indicative of ‘insight’ and the capacity to act rationally, at least as at May 2015. I note that these circumstances do not appear to have been disclosed to the offender’s psychologist and, in my view, to a not insignificant degree, they undermine the weight that should be accorded to his opinion as to a causal connection between the offender’s psychological condition and his offending. That is certainly the case in relation to counts 4 & 5.

86. The further doubt the Court has concerning the proposition of a causal connection between mental condition and offending is that the agreed facts indicate that the offender was, again responsibly and rationally, capable, from September 2014 through to 24 January 2015, of rebuffing the victim’s overtures. Again, it is not apparent that these circumstances were made apparent to Mr Ahwit. Further, after the conduct the subject of count two had occurred, the offender sought to extract a promise from the victim that she would not tell anyone what had occurred between them.

87. In the circumstances, I do not accept a causal connection between the offender’s psychological condition and his offensive conduct, for any of the counts, which would materially reduce the seriousness of his offending. I accept, in a general way, that at the time of the offending, the offender felt lonely and socially isolated. I do not accept that his symptoms impaired his cognitive facilities, capacity to make reasoned judgements or diminished his ability to understand the wrongfulness of his conduct.

88. That is not to say, however, that his psychological issues are irrelevant to the principles of general deterrence, retribution, denunciation and rehabilitation, or especially, the matter of whether special circumstances arise which justify variation of the non-parole period. These are matters which I will later consider in these remarks.

Prior criminal history

89. The offender has a criminal record, though it mainly related to an offence, of a very different character than these offences (including a very different fault element), which occurred a long time ago. I do not find that he is disentitled to any leniency because of that and I accept that his history discloses no intentional disregard of the law.

Good character

90. The Crown accepts that the offender did not use his good character to assist the offender in the commission of the offences. That being so, I am not restrained by s 21A((5A) from weighing evidence of the offender’s good character in the sentencing assessment.

91. Counsel for the offender did not overstate the significance of this consideration, recognising that it usually carries less weight than usual for offences of this kind.

92. There were some written testimonials placed before the Court. Two of them were from the offender’s family; another from his current partner. It has to be said that they were brief in nature and Counsel for the offender acknowledged that the referees did not appear to evince a clear appreciation of the serious nature of the offences to which the offender pleaded guilty to.

93. Nevertheless, I accept that the offender was depicted as being caring and considerate and, as a qualification to what I have just referred to above, his current partner attended in Court during the sentencing hearing and remains supportive of the offender.

Guilty plea

94. There was no dispute that the offender is entitled to a discount, but the level of discount was contentious.

95. The pleas were entered on the second day of a trial after amendments to the indictment, which saw certain counts withdrawn and others placed on a ‘Form 1’. I was informed from the Bar Table that a written offer had been made on the offender’s behalf before the trial, although the contents of that offer were not before the Court. On the first day of the trial, being 19 August 2019, the Court was informed that a trial would not proceed. Whatever was the strength of the Crown case, the offender’s conduct did at least spare the need for cross-examination of the victim.

96. I assess the discount at the level of 10%.

Rehabilitation prospects and likelihood of re-offending

97. Mr Ahwit reported that with on-going treatment, comprising fortnightly sessions with him for a period of 6 months, in which period he might receive cognitive behavioural therapy, and problem solving skills to help him cope with stress, his anxiety might be alleviated and emotional regulation improved.

98. The offender’s counsel referred the Court to the current relationship the offender enjoys with one of his character referees.

99. I accept that the course of treatment suggested by Mr Ahwit will help the offender’s rehabilitation. Nevertheless, an underlying concern that the Court has is that, in the absence of secure employment and a reduction in the sense of social isolation, the course of treatment may not be sufficiently effective to eliminate the risk of his re-offending.

100. As noted, a very curious feature of the circumstances in this case is that, by his assistance to the victim, and the police, concerning the victim’s abuse by her grandfather, the offender evinced his understanding of the wrongfulness of that kind of conduct; but nevertheless went on to perpetrate not dissimilar offensive conduct himself shortly thereafter. That said, I note that he currently has a supportive partner, even throughout the current process, which is itself an indicator of rehabilitation. I have no reason not to accept the evidence, albeit that it has been provided indirectly, about the offender’s heightened sense of insight, having regard to what he has endured since his offending.

101. In this regard, I acknowledge that he has been subject to substantial restraint upon his liberty, through his bail conditions in the last 2 years; which was characterised in argument as a de facto form of house arrest. I consider that these restraints have been salutary and further reduce the prospect of his re-offending.

102. I also take into account his general good character and, to a lesser extent, his plea in evaluating the likelihood of his re-offending.

103. The Court finds that his prospects of rehabilitation are reasonable and his prospects of re-offending low.

Remorse

104. The offender did not give evidence at the sentencing hearing. He was reported by Mr Ahwit to have expressed shame and remorse as to his offences. Mr Ahwit also reported that the offender ‘fully comprehends the seriousness of the offences’.

105. The offender plainly has a conscience: he developed depressive symptoms following his offending conduct of negligent driving which occasioned death. I think it is more likely than not that he still remains haunted by that searing experience to date.

106. I find that he is remorseful about the subject offensive conduct in the sense recognised in s 21A(3)(I) of the Act.

Assistance to authorities

107. During the hearing, the offender’s counsel did not, in terms, submit that the offender’s assistance to the police in relation to the victim’s abuse by her paternal grandfather warranted a discount in accordance with the provisions and principles concerning s 23(1) of the Act. The Court granted the parties the opportunity to make further submissions on the point. The Crown supplied to the Court a reference to the Court of Criminal Appeal’s decision in R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90. The offender was granted leave to supply supplementary written submissions and availed himself of that leave. The Crown responded to those with its own supplementary written submissions.

108. The offender submitted that s 23(1) is engaged and that the Court, in its discretion, may allow a discount given that the offender was instrumental in the detection of serious offending. It was pointed out that victims of child sexual abuse often do not make disclosure, or timely disclosure, to authorities. The Crown agrees that s 23 is engaged.

109. XX makes it clear that s 23(1) is to be broadly construed and may extend to the assistance by offender to the police about offences that occurred even before the offender’s commission of any offences (at [35]) and even where the offender was not personally involved (such as being a victim or himself a perpetrator) but is merely an independent witness (at [33]).

110. An aspect of the offender’s submission touches upon the notorious reluctance of victims of child sexual abuse to come forward. The offender’s argument seems to be that by encouraging the victim to report her grandfather to the police he has rendered assistance to law enforcement authorities (s 21A(3)(m) of the Act. There may be a nice question whether, for the purposes of the provision, this particular kind of assistance qualifies to engage the provision. On one view, uninstructed by authority, the assistance in this regard is assistance to a victim of criminal conduct; not law enforcement authorities. That is partly because at least the discretionary decision to grant a lesser penalty and extent of the discount is informed by a range of statutory considerations (in s 23) which could have no application to the type of ‘assistance’ that the offender has identified in this regard. I do not consider that this provision is engaged on this particular basis; and, alternatively, would not allow any discount for that particular kind of assistance alone.

111. On the other hand, there is no doubt that that the offender provided to police assistance comprised his giving a statement to police on 7 July 2015. He did so as an ‘independent witness’ who was able to, and did, give evidence of complaint made to him by the victim about the victim’s grandfather’s abuse. Further, I note, that such assistance as was rendered by the offender occurred after the offender himself had committed the acts which constituted counts 1, 2 & 3, but before the acts constituting counts 4 & 5.

107. There may be scope for argument as to the extent to which the offender’s assistance in relation to the grandfather’s offending related to his own offending. There was, at least, a temporal association (which did not exist in the circumstances of XX). There is also scope for debate as to how valuable the assistance was: it was in the nature of corroborative ‘complaint’ evidence to support the victim’s account of her abuse by her grandfather; the grandfather, I am informed, had pleaded guilty so the offender’s evidence was not challenged.

108. An important consideration, in s 23(2)(c) is the “completeness” of the information supplied. As I have indicated, the Agreed Facts set out that the offender associated the circumstances of his own recently close association with the victim with reference to his opinion as to the victim’s desire to avoid the grandfather. He said nothing about his own criminal conduct during that same period perpetrated towards the victim.

109. In a sense, whatever benefit that the offender’s assistance to the police in investigating the conduct of the grandfather was negated by his failure to provide complete disclosure of his own offending conduct towards the victim. As a matter of discretion, I do not consider that such ‘assistance’ as was rendered by the offender in relation to the grandfather’s offending conduct entitles him to a discount.

ASSESSMENT

115. I have regard to the principles in s 3A of the Act.

116. The maximum penalty for the offence indicates the community’s abhorrence of conduct of this kind. General deterrence, denunciation, the need to hold the offender accountable for his conduct and retribution generally plays a significant role in conduct of this kind.

117. To a limited extent, I recognise that the offender’s psychological condition, featuring anxiety and depression leads to some small moderation of these principles. As I have indicated, such moderation is only modest in circumstances where, as I referred to earlier, I found that irrespective of whatever encouragement he was provided by the victim to engage in the offending behaviour, and his symptoms of depression or anxiety, he was relevantly aware at all times that he was engaging in wrongdoing of a serious kind. Nevertheless, I find that because of his mental issues, he is likely to find that a custodial sentence will weigh more heavily upon him. Recognising that circumstance, however, the offender’s own psychological condition is primarily relevant to the issue of special circumstances I consider further below.

118. This was a sad case: what started as a friendship between the offender and victim, both relatives (albeit an indirect sense), developed into a plainly inappropriate relationship leading ultimately to serious criminal behaviour sustained over a period of months. The victim is a troubled youth, yearning for love and nurturing after having come from what she described as a broken family; and the offender himself had mental issues and a sense of social alienation. He disturbingly received gratification, of an emotional and sexual kind, in repeated instances, against his better judgment; and has exacerbated the victim’s pre-existing significant emotional and mental scars.

119. In view of the unlikelihood of his re-offending, the opportunistic nature of the offending, which did not involve any predatory conduct against members of the public at large, the protection of society represents a less substantial consideration than often arises for offences of this kind.

120. Specific deterrence is not only of significance, but the significance is heightened as a result of the Form 1 offences (which themselves are very serious in nature and which attract the same maximum penalty as the principal offences) attaching to 4 of the 5 principal offences So too is the significance of the consideration of retribution heightened.

121. These were child sexual offences for the purposes of s 25AA of the Act. That being so, the Court is required to sentence the offender in accordance with sentencing patterns and practices at the time of sentencing (s 25AA(1)) and is also required to have regard to the trauma of sexual abuse on children as understood at the time of sentencing (s 25AA(3)). I acknowledge the last matter, which was manifestly exhibited when the victim read out her victim impact statement.

122. The Crown placed before the Court a schedule summarising a range of cases concerning s 66C(3) from 2008 to 2019. Of course the facts differ markedly in all the cases brought to the Court’s attention; not least in terms of whether pleas were entered. The Crown emphasised two cases, in particular, being R v Wright [2017] NSWCCA 102 and Hordern v R [2019] NSWCCA 210, which I have considered, with the other cases put before me. The decision in Wright bore some level of similarity with the present case.

123. It is common ground, and I so find, that the s 5 threshold is passed such that there is no alternative penalty other than imprisonment which is appropriate.

124. In my view it is appropriate that there be an aggregate sentence. I apply the principle of totality, after having determined the considerations of both concurrency and accumulation. All offences are the same and involve the same victim. Counts 1 & 2 may broadly be viewed as part of the same episode; which favours concurrency: in my view the sentence for one count can comprehend the criminality for the other [4] . Although to some extent broken up in time, the conduct of counts 4 & 5, in the circumstances, also occurred closely in space and time. Count 3 is plainly separate and distinct.

     4. Cahyadi v The Queen [2017] NSWCCA1 at [27]

125. The offender’s period of pre-sentence custody (93 days) is to be taken into account when backdating the commencement of the sentence.

Special circumstances

126. The Crown does not dispute that there are special circumstances which warrant reduction in the non-parole period. I accept the offender’s submission that his first time offending for offences of this particular kind, his general good character, his low prospect of re-offending and the circumstance that his already reasonable prospects of rehabilitation would be enhanced by a greater period of supervision on parole to facilitate his re-integration back into the community

ORDERS

127. Mr Threlkeld, please stand.

128. You are convicted of the offences in counts 1, 2, 3, 4 & 5 in the indictment.

129. The indicative sentences are (taking into account the pleas of guilty):

Count 1 (with Form 1 taken into account):      2 years, 6 months

Count 2 (with Form 1 taken into account):      2 years, 6 months

Count 3:                                                          3 years

Count 4 (with Form 1 taken into account):      4 years, 6 months

Court 5 (with Form 1 taken into account):      4 years, 6 months   

130. I sentence you to an aggregate term of imprisonment of 8 years, 9 months, commencing on 21 August 2019 and expiring on 20 May 2028. There will be a non-parole period of 5 years, 3 months expiring on 20 November 2024, after which you will become eligible for parole.

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Endnotes

Decision last updated: 03 December 2019