R v TL (No 2)
[2016] ACTSC 289
•22 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TL (No 2) |
Citation: | [2016] ACTSC 289 |
Hearing Date: | 15 September 2016 |
DecisionDate: | 22 September 2016 |
Before: | Refshauge ACJ |
Decision: | 1. TL be convicted of sexual intercourse with a young person on or about 13 September 2013. 2. The Good Behaviour Order made on 12 November 2012 be cancelled. 3. That breach be remitted to the Children’s Court to be dealt with by that Court. 4. TL be sentenced for engaging in sexual intercourse with a young person to two years imprisonment to commence on 11 April 2015. 5. TL be convicted of committing an act of indecency on a young person on or about 13 September 2013. 6. TL be sentenced to four months imprisonment to commence on 11 April 2015. 7. TL be convicted of committing a second act of indecency on a young person on or about 13 September 2013. 8. TL be sentenced to six months imprisonment to commence on 11 November 2016. 9. TL be convicted of committing a third act of indecency on a young person on or about 13 September 2013. 10. TL be sentenced to six months imprisonment to commence on 11 December 2016. 11. TL be convicted of committing an act of indecency on a young person between 29 April and 24 June 2014. 12. The Good Behaviour Order made on 11 April 2014 be cancelled. 13. TL be convicted for burglary committed between 2 October 2012 and 3 January 2013. 14. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 15. TL be convicted for theft between 2 October 2012 and 3 January 2013. 16. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 17. TL be convicted for burglary committed on 17 October 2012. 18. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 19. TL be convicted for theft committed on 17 October 2012. 20. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 21. TL be convicted for burglary committed between 22 and 23 October 2013. 22. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 23. TL be sentenced to four months imprisonment for committing an act of indecency on a young person between 29 April and 24 June 2014, to commence on 11 June 2017. 24. TL be convicted of committing a second act of indecency on a young person between 29 April and 24 June 2014. 25. TL be sentenced to six months imprisonment to commence on 11 July 2017. 26. TL be convicted of committing an act of indecency on a young person between 1 and 22 December 2014. 27. The Good Behaviour Order made on 29 May 2014 be cancelled. 28. TL be re-sentenced for the offence of common assault to one month imprisonment to commence on 11 January 2018. 29. TL be sentenced to six months imprisonment for committing an act of indecency on a young person between 1 and 22 December 2014 to commence on 11 September 2017. 30. TL be convicted for committing the second act of indecency committed on a young person between 1 and 22 December 2014. 31. TL be sentenced to nine months imprisonment to commence on 11 November 2017. 32. TL be convicted of aggravated robbery on 10 November 2014. 33. TL be sentenced to two years and nine months imprisonment to commence on 11 December 2017. 34. A non-parole period of two years and eight months to commence on 11 April 2015 and end on 10 December 2017 be set. 35. TL be referred to Restorative Justice under s 27 of the Crimes (Restorative Justice) Act 2004 (ACT). 36. TL be notified as a prisoner-at-risk because of his mental condition and the offences of which he has been convicted. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – sentencing for multiple offences – relative seriousness of the offence – multiple Good Behaviour Orders – offences occurred while subject to Good Behaviour Orders – Good Behaviour Order cancelled – sexual intercourse with a young person under 16 years – act of indecency committed on a young person under 16 years – aggravated robbery – subjective circumstances – consideration – concurrency of sentence – totality of sentence – general deterrence – prospects of rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) ss, 55(2), 61(2) Crimes (Restorative Justice) Act 2004 (ACT) s 27 Crimes (Sentence Administration) Act 2005 ss 108(2), 110, 320H Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 17, 33, 63(2) Criminal Code 2002 (ACT) s 310 Evidence Act 2001 (ACT) s 4(2) |
Cases Cited: | Attorney-General (SA) v Tichy (1982) 30 SASR 84 Douglas v The Queen (1995) 56 FCR 465 Ellis v The Queen (1993) 68 A Crim R 449 Ibbs v The Queen (1987) 163 CLR 447 Perkins v Vaughan (1842) 134 ER 405 R v AM (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014) R v Ashman [2010] ACTSC 45 R v BB [2013] ACTSC 58 R v Billington [2014] ACTSC 350 R v BNS (No 2) [2016] ACTSC 145 R v Bourchas (2002) 133 A Crim R 413 R v CK (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 26 February 2014) R v Curtis (No 2) [2016] ACTSC 34 R v Daetz (2003) 139 A Crim R 398 R v Elphick (No 2) [2015] ACTSC 23 R v Gavel (2014) 239 A Crim R 469 R v GD [2015] ACTSC 174 R v Gordon (1994) 71 A Crim R 459 R v Keenan [2014] ACTSC 342 R v Massey (No 2) [2016] ACTSC 278 R v McGrail [2016] ACTSC 142 R v Meyboom [2012] ACTCA 48 R v Monaghan [2015] ACTSC 153 R v NF (No 1) [2016] ACTSC 216 Talukdar v Dunbar (2009) 194 A Crim R 545 |
Texts Cited: Parties: | D A Thomas, Principles of Sentencing (Heinemann Publishers, 2nd ed, 1979) The Queen (Crown) TL (Defendant) |
Representation: | Counsel Ms J Campbell (Crown) Mr J Robertson (Defendant) Mr F Wilson (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Defendant) | |
File Numbers: | SCC 100 of 2015; SCC 118 of 2016 |
REFSHAUGE ACJ:
Sentencing for multiple offences is a complex matter, the more so when some of the offences for which sentences must be imposed are of different kinds and committed on different days. Nevertheless, principles, such as the need to make appropriate concurrency and then, ultimately, to ensure that the proper totality of the sentence is maintained while imposing an adequate but just punishment, pose challenges for the courts.
Now standing for sentence before me is TL, who has pleaded guilty to one count of sexual intercourse with a young person under 16 years and seven counts of committing an act of indecency with a young person under 16 years. TL has also pleaded guilty to an offence of aggravated robbery committed between the incidents during which the sexual offences were committed.
Sexual intercourse with a young person under 16 years is an offence against s 55(2) of the Crimes Act 1900 (ACT), which provides for a maximum penalty of 14 years imprisonment.
Committing an act of indecency on a young person under the age of 16 years is an offence contrary to s 61(2) of the Crimes Act, which provides for a maximum penalty of 10 years imprisonment.
Aggravated robbery is an offence prohibited by s 310 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 2500 penalty units (that is, at the time, a fine of $375 000) and imprisonment for 25 years.
The maximum penalty provided for by the legislature is an important indicator of the relative seriousness of the offence. See Ibbs v The Queen (1987) 163 CLR 447 at
451-2. As that case demonstrates however, it is important to ensure that the precise facts of the offences are taken into account as the offences do cover a wide range of conduct. Nevertheless, all these offences are to be regarded as very serious offences as the maximum penalties show.
The facts
The sexual offences
In about 2011, TL commenced a relationship with NC, who was, at the time, about 15 years old. NC had at least three siblings, including a sister, BC, who was approximately nine or ten years old when she first met TL.
In early 2012, he moved into a house where NC lived. The relationship, however, was intermittent, but when they were together, TL would generally reside at her home. When TL lived at NC’s house, he shared a bedroom with her and, from time to time, one of NC’s siblings.
In about April 2012, TL and NC broke up and he moved out of her home. In late 2012, they reconciled for about two or three months and he moved back to live with her during this time. After the further break-up, they reconciled again in the second half of 2013 for some months and he moved back to live in her home. In this period, NC became pregnant. TL was in custody from 10 December 2013 to 15 May 2014 and, a few weeks after his release, returned to live with NC. On 24 June 2014, their son was born and all three remained in NC’s home for a few weeks before moving to Queensland for about three months to live with TL’s parents. They then returned to Canberra to live with TL’s grandparents for two months and, in November 2014, moved back to NC’s home.
The victim of the sexual offences was NC’s sister, BC. The first incident occurred on a Friday the 13th in 2013, apparently most likely 13 September 2013, when BC was 11 and TL was 19.
BC, her brother, and TL were watching a movie when BC’s brother fell asleep. TL kissed BC and put his tongue into her mouth, which is said to constitute one of the offences of committing an act of indecency on her.
He then left the room and returned with some batteries and took a purple vibrator from under the bed of BC’s brother. He then pulled BC’s pants down and touched her vagina with his hand. This is said to constitute a second count of committing an act of indecency on her.
He then held up the vibrator and moved to insert it into BC’s vagina, but she pulled his hand away and said, “No [TL]”. TL said, “Trust me [BC], it will feel good”. TL then pushed BC’s hand away and inserted the vibrator into her vagina. This is the count of engaging in sexual intercourse with BC.
TL turned the vibrator on and BC could feel the vibration; she was scared and did not know what to do. She told TL twice to stop it but on both occasions he said, “No”. Ultimately, BC pulled TL’s hand and pulled the vibrator away from her. TL then made BC touch his penis which she did for a short time until she said, “Stop. I want to go to bed, leave me alone”. This is a third count of committing an act of indecency on BC.
The next morning, BC’s vagina hurt and it stung for her to urinate and walk.
The second incident was said to have occurred in about April 2014, when BC was 11. That cannot be correct for TL was in custody between 10 December 2013 and 15 May 2014. I assume that the incident occurred in May or June 2014.
One evening, prior to the birth of TL’s child, BC was watching a movie in her bedroom when TL came in and tried to kiss her. This is a fourth count of committing an act of indecency on her. He then left the room and told NC that he was going to have a shower. He returned to BC’s room, grabbed her by the hand and said, “Come with me”. He then took her into the bathroom and closed the door, putting a wooden plank across the door so it could not be opened from the outside.
In the bathroom, he picked BC up by the legs and held her against the wall. They were both wearing clothes but TL moved BC up and down against him so that her vagina was rubbing against his penis. BC could feel TL’s erect penis against her vagina through the clothes. This is a fifth count of committing an act of indecency on her.
After some time, he put her on the bathroom sink, but she jumped off and said, “I am going back to my room” and left. TL then had a shower.
The third incident occurred in December 2014, after BC’s mother had purchased an inflatable pool, and which was set up prior to Christmas in the backyard. At this time, BC was 12 years old and TL was 20 years old.
Sometime between 1 and 21 December 2014, BC was in the pool with a younger sister and was wearing a one piece costume. A short time later, TL joined them in the pool.
After some play in the pool, TL pushed BC against the edge of the pool and said, “Oh, give me a kiss” and BC said, “No”. He repeated the request and was again told, “No”.
TL then moved BC’s swimming costume to one side and rubbed her vagina. This is a sixth count of committing an act of indecency on her. He took his penis out of his own swimming trunks and rubbed it against BC’s vagina; his penis was erect at the time. This is the final, seventh, count of committing an act of indecency on her.
NC was in the garden at the time and, seeing TL on top of BC, yelled out, “What the fuck are you doing? Why are you that close to her? Get away”. She then went inside to speak to her mother.
BC made a disclosure at a youth camp some time later; nothing seems to have come of that.
On 21 December 2014, when police attended NC’s home in relation to an unrelated matter, BC approached her mother and said, “[TL] raped me, Mum, I think [TL’s] raped me”. NC’s mother approached the police officer and reported the conversation, as a result of which BC was formally interviewed by police and the interview was recorded.
TL was arrested on 11 February 2015 and has remained in custody since then.
The aggravated robbery offence
Shortly after midnight on 10 November 2014, TL was driving a car along Riley Place in Chifley in which there were four passengers, including NC. As they drove next to the victim, who was walking down the street after finishing work at midnight, TL slowed the car and spoke to the victim, asking what kind of phone he had. He replied “It’s a Nokia”. It appears that TL must have stopped the car.
One of the passengers then got out of the passenger window and extended his hand as if to shake the victim’s hand. When the victim took the extended hand, the passenger held onto it so that the victim could not pull away.
It appears that TL must have then got out of the car, for he grabbed the victim’s other hand, which was holding the mobile phone, and also choked him by grabbing him by the throat. The passenger then got out of the car and put the victim in a choke hold.
The other passengers also got out of the car, including NC, who struck the victim on the head with a bottle. The victim dropped his phone and attempted to free himself. NC continued to hit him with the bottle.
The passenger took the phone and TL and all the passengers got back into the car and they started to drive off. The victim then threw a can of white house paint at the car, spattering it. TL stopped the car and one of the occupants shouted a threat at the victim, who ran home.
The passenger and his brother, who had also been in the car, later sold the phone at Cash Converters for $70, which they used to buy cannabis for all the people who had been in the car.
The passenger and NC have been charged with aggravated robbery and other offences but have both pleaded not guilty. The passenger has absconded and NC has been committed for trial to this Court. The passenger’s brother, a young person, was charged with being an accessory after the fact of aggravated robbery and was sentenced in the Children’s Court to a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). NC’s brother, also in the car, has not been charged.
Conditional liberty
At the time of some of these offences, TL was subject to three Good Behaviour Orders. On 12 November 2012, the Magistrates Court had made a Good Behaviour Order for 12 months. On 11 April 2014, he was sentenced to a term of imprisonment which was suspended after he had served five months; he was then subject to a 15 month Good Behaviour Order commencing on 11 May 2014. On 29 May 2014, he was convicted of a further offence and a Good Behaviour Order was then made.
The offences
The sexual offences
Without a doubt, the voice of the community expresses abhorrence at the sexual exploitation of children. It is, no doubt, the reason that the legislature provides severe penalties for such behaviour and the courts are expected to impose adequate but just punishment for such offences.
I said recently in R v BNS (No 2) [2016] ACTSC 145 at [29]:
So far as the attitudes of the courts are concerned to such offences, I said in R v TW (2011) 6 ACTLR 18 at 22; [21]:
Those offences are ones which the courts view very seriously. As Maxwell J said in Fisher v The Queen:
... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.
The effect on such children is well-known and risks serious problems in the future. This has been explained in R v Gavel (2014) 239 A Crim R 469 at 483; [110] as follows:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v The Queen [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].
In this case, the child was at the younger end of the age group for this offence, being an offence against children aged between 10 and 16 years, although TL was not significantly older than she was. He was, however, already in a relationship with BC’s sister. Indeed, at the time of the second incident, NC was pregnant with her and TL’s son, and at the time of the third incident, the child had been born.
The offences were committed, with the exception of the offences in the bathroom, in the presence of other people, although in the first incident, BC’s brother was asleep. In the incident in the bathroom, TL had barred the door so no-one could get in, and so BC was vulnerable to his advances.
The sexual intercourse did not have the aggravating features that penile/vaginal intercourse would have, although the use of the vibrator did cause actual pain and harm to BC.
It is also apparent that BC did not consent to any of the sexual activity and, while consent is no defence and not even mitigatory, the lack of consent does make the offences more serious.
The offences also were in the nature of predatory offences. In a number of them there was also skin-to-skin contact, which may well be regarded as more serious.
The aggravated robbery offence
Aggravated robbery, combining personal violence and dishonesty, is one of the most serious offences in the criminal calendar. It is inevitable that, other than in the most exceptional circumstances, persons who commit aggravated robberies will be sentenced to lengthy terms of imprisonment. See Ellis v The Queen (1993) 68 A Crim R 449 at 462.
The circumstance of aggravation was that TL was in company. As there were four other people, the victim was confronted with overwhelming numbers which must have been quite frightening.
TL himself used force, but, while not mitigating the seriousness of the offence, he had no weapon and did not use one. NC did allegedly use a bottle to beat the victim. Given, however, that neither TL nor the passenger, the first attackers, used a weapon, I am not prepared to find that TL knew that a weapon was to be used by NC.
The offence appears to me to have been opportunistic and not planned in any sense. It was committed on a defenceless victim who, walking home from work around midnight, was very vulnerable. In addition, though there was no weapon used by TL, he did choke the victim, as did the passenger, which is a relatively serious form of harm inflicted upon him.
The property stolen was not very valuable in monetary terms, though, no doubt, the victim had information on his phone which he will at least be put to inconvenience to replace and may be irreplaceable.
Subjective circumstances
I had a Pre-Sentence Report, a Forensic Mental Health Report, TL’s prior criminal record, a report from the Court Alcohol and Drug Assessment Service (CADAS), a report from Headspace ACT, and a reference from TL’s mother.
From these and counsel’s submissions, I make the following findings.
TL was born 22 years ago, the middle of the three sons born to his parents.
Both his parents experienced problems with alcohol and, while they both did their best to provide a stable upbringing for their sons, there were high levels of expressed emotion, parental conflict, and eventually a separation when TL was 16. There may also have been, it is suggested, some problems with drug use.
His parents re-united about 18 months ago after his father sustained a significant head injury from a fall resulting in impaired speech and triggering him to cease drinking alcohol. They now live in Queensland with TL’s younger brother. TL has a close relationship with his grandmother but has regular contact with both his father and mother on the phone and through visits to the family home in Queensland when he can. He plans to return there to live with them when he is released from custody.
I have referred to his relationship with NC above (at [7]-[9]) but that has now ended since his arrest and an Apprehended Violence Order preventing further contact with her is in place. TL wishes to have contact with his son but that will be difficult with the convictions for sexual offences, his entry on the Child Sex Offender’s Register, and the apparent opposition of NC.
TL attended high school and, after initially managing fairly well, his behaviour and achievement declined. He had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He was assessed at the Child and Adolescent Mental Health Service and prescribed atomoxetine which was initially effective. He ceased his medication, however, and this precipitated alcohol and drug use, negative peer influences, and defiant and disruptive behaviour. He was suspended from school at least 10 times including, on one occasion, for fighting. Although he may not have formally been expelled, he was asked to leave at the end of Year 9. He then worked as a tyre fitter for about 18 months and as a general labourer for six months before being remanded in custody.
While in custody, TL has undertaken a numeracy and literacy program and has completed an anger management program. His engagement, contribution, and participation have been positive.
Regrettably, a large number of members of his peer group are involved in criminal activities, although he has some friends and family who are not so involved and who provide pro-social role modelling and a support network. He feels that, when he is released from custody, he should return home to Queensland which will reduce the influence of those peers.
TL commenced drinking alcohol in his early teenage years when he would drink with his father. By the age of 16, he was drinking a whole case of beer every night. This pattern continued until he was arrested. Alcohol is obviously a drug of concern. It is also significant that he commenced drinking at a very early age before he was in a position to understand and give informed consent to the activity. See Douglas v The Queen (1995) 56 FCR 465 at 470.
He started using cannabis also at the early age of 12, when he began smoking daily. Again he cannot have truly understood what he was then doing. He said that by the time he was arrested, he was smoking anywhere from $20 to $100 worth of cannabis a day. It is not clear where he would obtain the funds for such intensive use. This also is a drug of concern.
He has been smoking methylamphetamine, or “ice”, since he was 14. He described this use as “occasional”. He began injecting ice while in custody. He injected ice daily for the first 12 months of his incarceration but contracted Hepatitis C, obviously from sharing needles, a common cause of such infection and a problem in correctional institutions, which a prison needle exchange would do much to resolve. He has since remained abstinent.
He has previously used heroin and ecstasy but no longer consumes them. He once used hallucinogens and steroids but has not since. He currently smokes 50 grams of tobacco a week and has attempted to give up but, so far, unsuccessfully.
He had a brief period at the Ted Noffs Foundation, a program I described in R v GD [2015] ACTSC 174 at [5]-[8].
TL has been prescribed methadone while he has been in custody. This has helped him to “remain stable” and abstinent from illicit drugs at this time. As noted above (at [56]), he has also completed an eight week anger management group program. He has been attending the SMART Recovery, a program I described in R v McGrail [2016] ACTSC 142 at [78]-[80]. He feels confident that he can remain abstinent when he returns to the community.
Apart from the ADHD, TL’s mental health problems include suffering from depression and anxiety since he was a child. He also experiences low mood and low
self-confidence. This leads him to negative self-talk and he experiences worry and hopelessness. While in custody, he has been prescribed medication for his depression and anxiety. He has intermittently experienced suicidal ideation and, when he was 17, did engage in one incident of deliberate self-harm by cutting. He has also attempted suicide. He has difficulty regulating his emotions resulting in impulsive anger and aggression. He has had an experience of persecutory paranoid ideation and auditory hallucinations, most recently in the first week of his detention in custody. He has not since then experienced auditory hallucinations but he does remain somewhat paranoid.
He has, apparently, had previous diagnoses of schizophrenia and bipolar disorder, though there appears no support for those diagnoses. Ms Gillian Sharp, who prepared the Forensic Mental Health Report, suggested that his psychotic symptoms appear to have been concurrent with heavy illicit drug use and that he is likely to be vulnerable to developing psychotic symptoms secondary to such illicit substance use. She opined that he is not suffering from a serious mental illness at present. He does not appear to have had any treatment for his mental health issues, apart from the brief intervention from Headspace, though he has had some individual counselling while in custody. He has, however, been attending a “Stress Less” group program.
TL says that his goal is to become an effective and “good parent” for his baby son. He is willing to continue with counselling treatment, either in custody or in the community. To this end, he has completed an eight week group program, “How to be a better father”, and he described this as very useful and effective.
The efforts he has made in custody do justify some optimism about the likely prospects of his rehabilitation.
The report from Headspace ACT was, unfortunately, undated, but was clearly prepared in 2009, when from July that year TL received “eight sessions of psychological therapy from a registered psychologist”. It said that TL had attended all sessions and “participates well”.
The sessions focussed on the use of cognitive behavioural therapy, dialectical behavioural therapy, and family counselling. It was reported that TL was responding positively to therapeutic support and that his mood had become better in the school environment. The assistance that the report provides is somewhat moderated by the fact that these somewhat positive views were all expressed prior to the commission of all the current offences.
Nevertheless, I am satisfied that, with the other matters I have addressed, it permits me to find that there are some genuine prospects of rehabilitation available.
TL has 17 offences on his criminal record. The largest number, eight, are traffic offences but only marginally more numerous than the seven dishonesty offences, including three offences of burglary. He was, however, sentenced for all three burglaries and associated thefts, with some traffic offences, including drink-driving, in the same Court appearance. It is a rather worrying record for a young man. He has, nevertheless, no prior history of sexual offending and only one offence of violence, a common assault, committed in February 2013. Again, that supports the optimistic assessment I have made of his rehabilitation prospects.
The Crown also tendered and I admitted the sentencing remarks of Magistrate Cook, who sentenced TL for the three offences of burglary and three offences of theft and some traffic offences. No particular passages were relied on by either counsel.
Interestingly, I note that his Honour had evidence from the mother of NC and said:
She has indicated that you are also extremely supportive of your partner, that you support her financially in relation to both doctors’ appointments, ultrasounds care and protection generally and that you are an enthusiastic person around home duties.
That position has clearly changed since TL and NC are now estranged. It does show, however, a degree of responsibility that he has been able to demonstrate in the past and, again, is relevant to an assessment of his prospects of rehabilitation.
TL wrote me a letter which was admitted into evidence. In it, he refers to the difficulties in his childhood and the exposure to drugs and alcohol at an early age. He says he started associating with “the wrong crowed [sic]” and that led him into crime which he says he “now regret[s] a lot”. He expresses his remorse, saying how sorry he is for his criminal activity.
He says that, when he leaves prison, he wishes to go to Queensland to live with his parents and his younger brother, to seek employment, and be a good citizen. He wants to start again.
He will have challenges because of his history and the offences he has committed. He refers, however, to the courses he has completed and evidence was before me of them.
He has also taken the time in custody to consider his mistakes. He expresses empathy for his victims, wishing to meet face-to-face with the victim whom he robbed and tell him how sorry he is. That may be able to be facilitated through the Restorative Justice Program.
A difficult problem is in an incident which occurred on the day or the day after BC disclosed to her mother that TL had sexually abused her. TL was assaulted badly, resulting in his leg being broken in three places, and requiring insertion of a metal rod and screws. He had other bodily injuries from the assault.
When first mentioned to me, I was told in submissions from counsel that he was not sure who committed the assault. He now says that it was NC’s father and her father’s brother-in-law. He made these allegations in the letter to me which I received in evidence and he also mentioned it to the authors of the Pre-Sentence and CADAS Reports. He says he has also been threatened while in custody, a not uncommon occurrence for those charged or convicted of child sex offences.
Injuries and other harm done to an offender because of the offending can, in an appropriate case, be taken into account in sentencing. See R v Daetz (2003) 139 A Crim R 398 at 410-11; [62].
The Crown opposed me taking this matter into account. It was said that the material before me did not justify me taking the physical injuries into account. This was submitted, in part, because TL had not given the evidence of this on oath. That, of course, is not required in sentencing proceedings unless the Court directs that the Evidence Act 2001 (ACT) applies: s 4(2) of the Evidence Act. No such direction was made. It is clearly desirable that sentencing proceedings do not become unreasonably constrained and complex as I explained in Talukdar v Dunbar (2009) 194 A Crim R 545 at 549-50; [22]-[24].
In this case, however, the Crown did object to me finding on the material submitted that the injuries suffered by TL were harms he suffered as a result of him having committed the offence. It was submitted to be mere assertion, and not sufficient to justify the finding sought.
Ordinarily, assertions from the bar table and hearsay documents are sufficient to allow a court to make findings of fact in sentencing proceedings. The mere assertion of a matter, however, will not prove it to the relevant standard where there is objection: Talukdar v Dunbar at 549-50; [23].
Even where no direction has been given under s 4(2) of the Evidence Act, then it would appear that the common law of evidence applies to the proof of such facts: R v Bourchas (2002) 133 A Crim R 413 at 428; [61].
In this case, the Crown objected to the letter from TL in which this allegation was made. The Crown, however, had earlier tendered the Pre-Sentence and CADAS Reports in which the same allegation was made, the author of the Reports recounting what TL had told them.
While it is clear, as I pointed out in R v Ashman [2010] ACTSC 45 at [28]-[29], that the Crown is not bound by the contents of such reports, which it is required, in fairness, to tender, it should make clear at the time whether it wishes to controvert any of the contents including, where relevant, cross-examining the author. That was not done in this case and the admission of this evidence seemed to me to justify reception of TL’s letter.
That, however, does not resolve the issue of what finding I should make. The Crown clearly made an objection to the finding that the injuries suffered by TL were
extra-curial punishment for his sexual offending.
Initially, I had a submission on 29 July 2016 that he had been assaulted, causing the injuries noted above (at [79]) and, in the submission, it was said:
In my submission, your Honour, there is an element of extra-curial punishment that your Honour may wish to take into account. If we look at the agreed statement of facts ... it was 21 December that police attended Oxley, [the home of NC and BC], and the disclosure was made.
On my instructions that’s the day that he was admitted to Woden Hospital, having been bashed and having his leg broken. So, in my submission, he’s not been able to identify his attackers to police and for that reason. I can’t say that the [family of NC and BC] were involved in that incident but certainly my client believes they were involved and that brings, I suppose, with it a feeling for him, at any rate, that he has been punished by that incident in relation to the offences against BC. But as I say, the police haven’t charged anybody and there’s no proven link between the bashing and BC’s complaint because the incident occurred as he was walking home from work after dark and he wasn’t able to identify his attackers.
The Crown asked me to reject the submission that this was extra-curial punishment or that NC’s family were responsible.
I also had the report of his statement to the author of the CADAS Report dated 23 August 2016 of a consultation on 16 August 2016, and his letter to me dated 13 September 2016, both of which he stated that NC’s father was the attacker, contrary to the earlier submission. They were not independent assertions, however, but first-hand hearsay from TL, who did not give direct evidence of this in an admissible form. His letter was hearsay and so inadmissible at common law to prove the truth of the assertion: Perkins v Vaughan (1842) 134 ER 405.
In the face of the objection, then, it was necessary for TL to satisfy me by admissible evidence on the balance of probabilities that the injuries were extra-curial punishment. That would likely have required TL to give evidence on oath and subject himself to cross-examination. He did not do so. He may have been able to prove the matter in some other way. He did not do so.
Although, had the assertion not been subject of a Crown objection, there was some basis for the assertion - the characteristics of NC’s father and the date of the assault - even those may not have been sufficient. I do not have to decide.
I am not satisfied, from any admissible evidence, on the balance of probabilities that TL has suffered extra-curial punishment because of his offending.
Nevertheless, the Pre-Sentence Report, while also recounting this earlier assault, also stated that there had been an incident while he was in custody. I accept that persons convicted of child sex offences can be the subject of attack while in custody and are likely to suffer some greater privations in prison as a result.
The letter from TL’s mother was helpful. Unsurprisingly, it is supportive, but it does give some background.
She described TL as “a good child” but with special needs because of his ADHD, which made him quite impulsive and which could “make him quite immature and childlike”. She also referred to his mental health issues from which both his father and grandfather have suffered.
She suggested that TL’s problems really stemmed from the time when she and his father separated for 18 months. She said that when he visits her and his father in Queensland they have “never had any problems with him partly because they have ‘a strict no drugs or alcohol policy’ in the home and he respects that”. She hopes that were he able to serve his parole period in Queensland they could provide him with a “safe drug and alcohol free lifestyle” and “with the help he needs as far as his mental health issues are concerned”. Again, this assists to justify a positive finding as to TL’s prospects of rehabilitation.
TL has been in custody since his arrest on 11 February 2015. The Statement of Facts states that the “[t]otal days in custody attributable solely to these offences ... [to] 29 July 2016: 534 days (1 year, 109 days)”. The emphasis on solely has no legislative justification. Section 63(2) of the Crimes (Sentencing) Act refers to “any period during which the offender has already been held in custody in relation to the offence”. It is notable that the legislature has chosen not to refer to being held “in custody only in relation to the offence” (emphasis added).
While a period in custody, which is a period on remand without bail as well as being a sentenced prisoner, it is neither a requirement of the statute that the whole of the period be applied mathematically to the sentence or that it be completely ignored. See R v Elphick (No 2) [2015] ACTSC 23 at [86]-[90].
I also addressed in that decision at [91]-[92] how to take into account periods of concurrent remand and sentence. Having refreshed my memory of what I there said, I do not wish to modify it in any way.
TL has been assessed in the Pre-Sentence Report as at a high risk of re-offending; primarily because of his significant alcohol and other drug dependency, his mental health issues, and his anti-social peer associations. His current efforts at reform and plans for his residence after leaving prison do start to address these risk factors.
Prior Good Behaviour Orders
On 11 April 2014, TL was sentenced to periods of imprisonment for nine months backdated to take account of pre-sentence custody for the three burglaries and associated thefts, but the sentence was suspended on 9 May 2014 after he served five months. As required under s 12 of the Crimes (Sentencing) Act, a Good Behaviour Order for 15 months from that date was made.
Then, on 29 May 2014, TL was sentenced for common assault committed prior to the earlier sentencing, such that the conviction did not breach the earlier Good Behaviour Order. He was not sentenced to imprisonment but a Good Behaviour Order for 408 days was made.
The convictions for the offences against BC involved in the second and third incidents and the conviction for aggravated robbery will breach the first of these Good Behaviour Orders.
Earlier, on 12 November 2012, TL was convicted in the Children's Court of dangerous driving and released with a Good Behaviour Order for 12 months. He was also found guilty of minor theft and, without conviction, released with a Good Behaviour Order. Both Orders were for 12 months and so the convictions for the offences against BC will breach those Orders.
So far as this Good Behaviour Order is concerned, because it was made in the Children’s Court, I am required under s 320H of the Crimes (Sentence Administration) Act 2005 (ACT), to refer it to the Court that sentenced TL, namely the Children’s Court, which must deal with that breach, notwithstanding that he is no longer under the age of 18 years. I will do so.
I have, however, to take action in respect of the Good Behaviour Orders made in 2014 in the Magistrates Court. They have, however, to be treated slightly differently.
Given that the Order made in April was made when a sentence of imprisonment was suspended, I must, under s 110 of the Crimes (Sentence Administration) Act either impose the sentence that was suspended or re-sentence TL. I have set out in R v Curtis (No 2) [2016] ACTSC 34 at [15]-[19], the approach to be taken in the response to the breach of such an Order when I said:
15.In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other cases; namely, that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender avoided being sentenced to full-time prison, is likely to bring such sentences into disrepute.
16.Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the effect of extending the period in which the offender is subject to a Good Behaviour Order, that may be modified to take account of the period of satisfactory compliance with the earlier order.
17.Over time, a number of considerations have been identified as relevant to the decision as to the appropriate response to the breach of a Good Behaviour Order.
18.These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
19.Indeed, with re-sentencing, the legislation expressly applies the Crimes (Sentencing) Act 2005 (ACT), to any re-sentencing, which permits all relevant factors on sentencing to be taken into account.
As the Order made in May 2014 was not made when a sentence of imprisonment was suspended, I have wider powers which are set out in s 108(2) of the Crimes (Sentencing Administration) Act. I can:
(a) take no further action;
(b) give the offender a warning about the need to comply with the offender’s good behaviour obligations;
(c) give the director-general directions about the offender’s supervision;
(d) amend the good behaviour order;
(e) if the offender has given security under the order –
(i) order payment of the security to be enforced; and
(ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f) cancel the order.
If I cancel the Order, I must re-sentence TL. Again, if I re-sentence him, then the Crimes (Sentencing) Act applies to that re-sentencing.
In order to decide how to proceed, it is important to have regard to the facts of the offences for which the Good Behaviour Orders were made.
The Order made in April was for sentences of imprisonment partially suspended for three offences of burglary and two offences of theft. He was dealt with for other offences at that time, but the sentences were either not sentences of imprisonment or were not suspended.
The burglaries and thefts involved the entry by TL into three residential premises in October 2013. In two cases, the houses themselves were entered; in the last, it was the garage that was entered. In the second residential burglary, the contents of the refrigerator had been thrown against the walls and the floor and the cupboards and drawers in each of three bedrooms opened and their contents thrown on the floor.
In the burglary of the garage, a car there had been entered and the contents of the glove box spread over the passenger seat.
It did not appear that any particular damage had been caused by entry into the properties.
As to the thefts, electronic equipment, a fan, and a portable air conditioning unit had been stolen in the first burglary. Unfortunately, as is now too common, no value was given to the Court of the property the subject of the theft. In the second case, items totalling $5795 in value was stolen.
There were no other remarkable aspects of these offences. He says he committed the offences to obtain money for cannabis and amphetamines.
The common assault was committed on NC at a time when TL was living with her. It was, thus, a family violence offence, which is somewhat more serious than other common assaults. He had become angry when NC’s father had asked him to ask his grandmother to buy some milk and bring it over. Apparently NC’s father had frequently made such requests and this led to a heated argument between TL and NC, which became very intimidating for NC. He threw his mobile phone at her, stood over her, pinning her against the front wall of the house. He had also grabbed a knife, holding it to his wrist and threatening to harm himself. When police arrived, he ran away but was found by police.
It is accepted that there was some commonality in character between these offences and the aggravated robbery which has elements of personal violence and dishonesty. The sexual offences, however, were of a completely different character.
The sexual offences were committed only a matter of months after the Good Behaviour Orders were made; the second incident of sexual offences apparently only weeks later, the aggravated robbery about seven months later.
The offences which breached the Good Behaviour Orders were much more serious than the offences for which the Orders were originally made. There is no obvious rehabilitation undertaken by TL during the period of the Orders.
In my view, the sentences of imprisonment suspended when the Good Behaviour Orders were made in April should be imposed. So far as the Good Behaviour Order in May, TL should be re-sentenced, so I will cancel that Order also.
Victim Impact Statements
I had Victim Impact Statements from BC and NC in relation to the sexual offences. They made, as usual, sobering reading. They were read out in open court so TL heard them.
BC said she found it “very hard and scary” to make the disclosure she did and found it embarrassing to tell police, investigators, her family and the courts of the events. This is understandable for a young girl who is asked to speak about sexual matters of which she had little experience. She also felt that the relationship with her sister, NC, was strained as a result of the disclosures; indeed, that her sister “hated” her, although her mother told her that this was not so. She has had some counselling because of behaviour and attitude problems which the offences had caused and which had changed her from a “happy, cheeky, outgoing girl”. She has now been suspended from school a number of times and no longer engages in athletic sports. She feels sad and depressed at times and has resorted to smoking and drinking and some self-harm. She says it is now very hard to have trust in some people and notes that her mother has described her as having a “don’t care attitude”. It is to be hoped that she can be provided with support and perhaps some professional assistance to address these issues.
NC noted that the disclosure had sent her family into “shock, utter discust [sic] and anger”. She was certain it would affect her family for years to come and made it difficult to “connect and communicate with” her younger sister, the victim, BC. She felt it was her fault and blames herself as she brought TL into the family. She fears for herself and her son.
It is comforting that she and the victim, BC, are “starting to bond again” but they are finding it very difficult in the way it has affected their lives.
The victim of the aggravated robbery also provided a Victim Impact Statement. It, too, made for sobering reading. Understandably, he refused to walk home at night after work as a result of the offence. His father was initially able to collect him, but that ceased when his father obtained work. He was given day work by his employer, but lost his more senior position which resulted in reduced wages.
When his employer tried to change his shifts again, giving him no option but to do night work, he felt he had no choice but to give up his work and he is currently unemployed, without the career prospects that he formerly had.
He is now facing financial pressure and is fearful of leaving his home unaccompanied. This has restricted access to his son who, instead of a week about parenting arrangement, he now has living with him only two days a week.
I saw photographs of the injuries he suffered, including a gash at the back of his head where he lost blood and became quite dizzy. This, however, appears to have been caused allegedly by NC hitting him with a bottle.
He has also had to see his medical practitioner a number of times and is still having back problems, which may require surgery but which he cannot afford.
Sentencing Practice
Neither party referred me to comparable cases in relation to the sexual offences.
That they are to be regarded seriously is shown by the statistics in the ACT Sentencing Database. There, for committing an act of indecency on or in the presence of a person under the age of 16 years, 60 per cent of the sentences were of imprisonment including partially suspended terms. Another 30 per cent were for sentences of imprisonment wholly suspended. The terms of imprisonment ranged from six months to three years.
In R v AM (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014), the 17 year old offender had kissed the victim, including putting his tongue into her mouth, had touched various parts of her body, and had caused her to masturbate him. He had also engaged in sexual intercourse with her. For each of the acts of indecency, he was sentenced to nine months imprisonment, partially concurrent.
It seems to me that the offences in R v AM were generally more serious than the offences committed by TL, though the victim was a little older.
As to the aggravated robbery, I was favoured by the Crown with four decisions. In the first, R v CK (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 26 February 2014), the offender pleaded guilty after he failed to have some admissions excluded from his trial. He and a co-offender entered a take-away shop with covered faces and with a machete. They took $1123 from the cash register. The offender was 19 at the time with a short but significant criminal history. He had a history of poor compliance with community based orders. He had a disadvantaged upbringing with limited education. He used cannabis and alcohol extensively, having been introduced to these drugs at age eight. He had a borderline personality disorder. He was sentenced to three years imprisonment.
In R v Billington [2014] ACTSC 350, the offender, who entered an early plea, was 18 at the time of the offence. He had hired a taxi and directed him to a cul-de-sac where he produced a knife with which he threatened the taxi-driver until he gave him $50. He later entered a newsagency also armed with a knife and demanded cash. The victim gave him $310. He made full admissions when arrested by police. He had an unremarkable background and a positive Pre-Sentence Report. He was sentenced to imprisonment for two years and eight months for each offence with the second sentence concurrent as to 12 months.
The next decision was R v Keenan [2014] ACTSC 342, where Mr Keenan entered a suburban supermarket with a sawn-off shotgun with which he threatened the staff, stealing $1500. He had a significant criminal history. He declined to co-operate with preparation of a Pre-Sentence Report. The Court considered 17 other decisions where sentences of between six years and three months and two years and three months had been imposed. I read his Honour’s helpful summary of each decision which was useful. In this case, Mr Keenan was sentenced to nine years imprisonment.
The final decision was one mentioned in R v Keenan, namely R v Monaghan [2015] ACTSC 153, where Mr Monaghan with a co-offender stole $135 from the victim who was withdrawing money from an ATM. Mr Monaghan had a serrated steak knife with him. He was 24 at the time and had a good upbringing but suffered developmental deficits. He had an extensive criminal record. Mr Monaghan was sentenced to imprisonment for three years and nine months.
None of the decisions are, as is probably inevitable, directly comparable, but they do set out some principles and parameters that are of assistance. The decision in R v Billington has similarity to this case although there a weapon was used.
Consideration
I have regard to the principles of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence is a very significant factor. Specific deterrence is not so significant for there is no particular history of TL offending in this way and there are reasonable prospects of rehabilitation, though it needs to be brought home to TL how completely unacceptable this offending behaviour is, especially in the light of his assessed high risk of re-offending.
It is also important to vindicate the harm done to the victims. That harm is well described in the Victim Impact Statements.
Given TL’s age, his prospects of rehabilitation are important. Even though he is over the age of 18 years, he is still relatively young and the principles relating to sentencing of young offenders are still applicable. See R v Gordon (1994) 71 A Crim R 459 at 469. Those principles are set out in R v BB [2013] ACTSC 58 at [72]. See, however, the relevant modification to them and the applicability in a case such as this as explained in R v NF (No 1) [2016] ACTSC 216 at [103]-[108]. I shall apply that reasoning here.
I have regard to the seriousness of the offences as I have described them earlier.
I have regard to TL’s plea of guilty so far as the sexual offences are concerned. He was committed for trial to this Court by the Magistrates Court and proceeded to trial. The trial ended on 3 December 2015, when the jury was discharged.
The matter was listed for trial on 30 May 2016, but on 25 May 2016 it was indicated that pleas of guilty to some of the charges would be entered and those pleas were entered on 26 May 2016. This entitles TL to some small discount although there has already been a trial, but it will save the re-trial occasioned by the discharge of the jury.
In relation to the aggravated robbery, TL pleaded guilty in the Magistrates Court and was committed for sentence. That entitles him to a more significant discount which I will apply.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act, including sentencing practice. So far as I know them, these matters are set out in these reasons.
In my view, having carefully considered the offences and TL’s personal circumstances, I consider that no other sentence than a sentence of immediate full-time custody is appropriate.
As there are multiple offences, it will be necessary to consider carefully the sentences to be imposed for each offence and the interaction between them.
Thus, I have carefully considered the length of each of the sentences to ensure that when there are overlapping common elements between any of the offences, TL is not punished twice. That is not significantly relevant in this case.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. This matter is, however, quite relevant in this case because, as was acknowledged by the Crown, each of the sexual offences occurred within three separate incidents and these are, for the most part, properly to be regarded as involving one course of events or, in reality, a single episode. See D A Thomas, Principles of Sentencing (Heinemann Publishers, 2nd ed, 1979) 53; Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93; and R v Meyboom [2012] ACTCA 48 at [62], [77]-[80].
I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that. I have made certain that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of TL’s goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
In considering totality, I must also have regard to the period during which TL was a sentenced prisoner during the remand period. I have explained that in R v Massey
(No 2) [2016] ACTSC 278 at [88]. See also R v Elphick (No 2) at [91]-[92]. This seems to me to be particularly required in the case of a young man as is TL. As a result, I will backdate the sentence, not to when he was taken into custody, but later so as to take account of the period during which he was a sentenced prisoner.
TL, please stand:
a.I convict you of sexual intercourse with a young person on or about 13 September 2013.
b.I am satisfied that, as a result you have breached the Good Behaviour Order made on 12 November 2012.
c.I remit that breach to the Children’s Court to be dealt with by that Court.
d.I sentence you for engaging in sexual intercourse with a young person to two years imprisonment to commence on 11 April 2015. Had you not pleaded guilty, I would have sentenced you to two years and three months imprisonment.
e.I convict you of committing an act of indecency on a young person on or about 13 September 2013.
f.I sentence you to four months imprisonment to commence on 11 April 2015, that is to be wholly concurrent on the sentence for sexual intercourse with a young person. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
g.I convict you of committing a second act of indecency on a young person on or about 13 September 2013.
h.I sentence you to six months imprisonment to commence on 11 November 2016, that is to be cumulative as to one month on the sentence for sexual intercourse with a young person. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
i.I convict you of committing a third act of indecency on a young person on or about 13 September 2013.
j.I sentence you to six months imprisonment to commence on 11 December 2016, that is to be cumulative as to one month on the sentence for committing the second act of indecency on or about 13 September 2013. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
k.I convict you of committing an act of indecency on a young person between 29 April and 24 June 2014.
l.I am satisfied that this conviction constitutes a breach of the Good Behaviour Order made on 11 April 2014. I cancel that Order.
m.I confirm the conviction for burglary committed between 2 October 2012 and 3 January 2013.
n.I impose the period of four months imprisonment suspended on 9 May 2014, that sentence to commence on 11 May 2017, that is to be cumulative as to three months on the sentence for committing the third act of indecency on or about 13 September 2013.
o.I confirm the conviction for theft between 2 October 2012 and 3 January 2013.
p.I impose the period of four months imprisonment suspended on 9 May 2014, that sentence to commence on 11 May 2017, that is to be wholly concurrent on the sentence for burglary committed on that date.
q.I confirm the conviction for burglary committed on 17 October 2012.
r.I impose the period of four months imprisonment suspended on 9 May 2014, that sentence to commence on 11 May 2017, that is to be wholly concurrent on the sentence for the theft committed between 2 October 2012 and 3 January 2013.
s.I confirm the conviction for theft committed on 17 October 2012.
t.I impose the period of four months imprisonment suspended on 9 May 2014, that sentence to commence on 11 May 2017, that is to be wholly concurrent with the sentence for the burglary committed on 17 October 2012.
u.I confirm the conviction for burglary committed between 22 and 23 October 2013.
v.I impose the period of four months imprisonment suspended on 9 May 2014, that sentence to commence on 11 May 2017, that is to be wholly concurrent with the sentence for theft committed on 17 October 2012.
w.I sentence you to four months imprisonment for committing an act of indecency on a young person between 29 April and 24 June 2014, to commence on 11 June 2017, that is to be cumulative as to one month on the sentence imposed following the breach of the Good Behaviour Order made on 11 April 2014. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
x.I convict you of committing a second act of indecency on a young person between 29 April and 24 June 2014.
y.I sentence you to six months imprisonment to commence on 11 July 2017, that is to be cumulative as to three months on the sentence for committing the first act of indecency on a young person between 29 April and 24 June 2014. Had you not pleaded guilty, I would have sentenced you to seven months imprisonment.
z.I convict you of committing an act of indecency on a young person between 1 and 22 December 2014.
aa.I am satisfied that this conviction constitutes a breach of the Good Behaviour Order made on 29 May 2014. I cancel that Order.
bb.I re-sentence you for the offence of common assault by sentencing you to one month imprisonment to commence on 11 January 2018, that is to be wholly cumulative on the sentence for the commission of the second act of indecency on a young person between 29 April and 24 June 2014.
cc.I sentence you to six months imprisonment for committing an act of indecency on a young person between 1 and 22 December 2014 to commence on 11 September 2017, that is to be cumulative as to one month on the sentence for the breach of the offence of common assault.
dd.I convict you for committing the second act of indecency committed on a young person between 1 and 22 December 2014.
ee.I sentence you to nine months imprisonment to commence on 11 November 2017, that is to be cumulative as to five months on the sentence for committing the first act of indecency between 1 and 22 December 2014.
ff.I convict you of aggravated robbery on 10 November 2014.
gg.I sentence you to two years and nine months imprisonment to commence on 11 December 2017, that is to be cumulative as to two years and one month on the sentence for committing the second act of indecency between 1 and 22 December 2014. Had you not pleaded guilty, I would have sentenced you to three years and eight months imprisonment.
hh.That is a sentence of imprisonment for five years and five months to commence on 11 April 2015 and end on 10 September 2020.
ii.I set a non-parole period of two years and eight months to commence on 11 April 2015 and end on 10 December 2017.
I will refer TL to Restorative Justice under s 27 of the Crimes (Restorative Justice) Act 2004 (ACT) because of his wish to apologise face-to-face to the victim of the aggravated robbery offence.
I will also require that TL be notified as a prisoner-at-risk because of his mental condition and because of the sexual offences of which he has been convicted.
| I certify that the preceding one hundred and fifty-eight [158] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 27 October 2016 |
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