Regina v Nathan Robert Pascoe

[2006] NSWDC 102

CITATION:	Regina v Nathan Robert Pascoe [2006] NSWDC 102
HEARING DATE(S):	10th March 2006
JUDGMENT DATE:	10 March 2006
EX TEMPORE JUDGMENT DATE:	03/10/2006
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentenced to imprisonment - overall sentence 2yrs 6mths; Non Parole Period 6mths. See [79] - [80]
CATCHWORDS:	Criminal Law - Sentence - Sexual Intercourse with child 14-16 (x2) - penile-vaginal, penile-anal - essence of offending conduct - aggravating features - absence of consent - rejection - pain - uncaring remarks - De Simoni applied - subjective features - self serving history in forensic report - Qutami applied - assessing risk of recidivism - value of guilty plea - special circumstances.
LEGISLATION CITED:	Children (Criminal Proceedings) Act; 1987 Crimes Act; 1900, s66C Crimes (Sentencing Procedure) Act 1999, s51
CASES CITED:	R v Gladue [1999] 1 SCR 688 at [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 R v Zappalla, unreported, NSW CCA 5/11/93 R v Sca, unreported, NSW CCA 13/08/90 De Simoni v The Queen (1981) 146 CLR 282 at 289; R v SG 2003 NSWCCA 220 at [19] - [25] R v Priestly unreported 3 June 1997; R v Buttsworth [1983] 1 NSWLR,658 R v Qutami [2001] NSW CCA 353 R v Palu [2002] NSW CCA 381 R v Todd [1982] 2 NSWLR 517 R v Fahda [1999] NSW CCA 262 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Regina Nathan Robert Pascoe (Offender)
FILE NUMBER(S):	05/61/0031
COUNSEL:	A.M. Russell (Offender)
SOLICITORS:	Solicitors for Public Prosecutions (Crown)

JUDGMENT

1 HIS HONOUR: In June 2004 Nathan Pascoe was fast approaching his twenty-fifth birthday. EMB was fourteen years three months. [The publication of her name or any material that might lead to her identity being revealed is prohibited by section 11 of the Children (Criminal Proceeding) Act 1987.]

2 With her friend, Jade Rodgers, she attended the home of one Tony Kelly. Nathan Pascoe was staying at this place. Pascoe, EMB and Rodgers consumed a bottle of Tequila or most of a bottle of Tequila, it is not clear from the facts. Pascoe consumed the majority of this bottle. At one stage in the evening the accused and EMB were seen kissing in the loungeroom. EMB has no memory of this. However she does recall waking naked in Pascoe’s bed with a naked Pascoe on top of her and his penis inside her vagina.

3 The offender turned the complainant over to have anal intercourse with her. She told him she did not want to do it. She said, “No” a number of times. Pascoe told her it was all right. He inserted his penis into her anus. The complainant said, “No” that she did not want to do this. She started to cry. She told him to get off because it was hurting. Pascoe told her to get used to it and it was only because she did not have any lubricant. Pascoe had hold of her hips and continued having anal intercourse with her. Shortly he stopped. The complainant dressed and left the house.

4 At some stage she returned to Kelly’s house attempting unsuccessfully to speak to Pascoe so as to confront him. Later that day she reported the sexual encounter upon her to police. On 21 November 2005 Nathan Robert Pascoe was arraigned on two counts of having sexual intercourse with the complainant, she then being above fourteen and under the age of sixteen. The first count relates to the vaginal intercourse, the second relates to the anal intercourse.

5 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before the Court committed by this offender harming this victim in this community. (R v Gladue [1999] 1 SCR 688 at 80)

6 My initial task requires an assessment of the objective criminality of the two offences before the Court. I will also need to have regard to matters personal to the offender (subjective matters). The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

7 There is a complaint of some delay, the impact of that, if any, will need to be assessed. The offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discount, whether special circumstances are to be found, totality and finally, of course, the ultimate length of the term of imprisonment or other penalty that is to be imposed.

8 The weight that needs to be given to those matters is overarched by a consideration of the imperative that all sentencing should have as its primary focus the protection of the community. (See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 594, R v Hayes [1984] 1 NSWLR 740).

9 An agreed statement of facts has been tendered. Most of that has been incorporated in the introduction to these remarks. The only other potential source of facts is a series of self-serving statements contained in a psychological profile prepared by Mr Greg Tryer, psychologist. Pascoe told the psychologist, he “was drunk out of my tree.” I am prepared to accept he had drunk a significant quantity of Tequila and was very well affected by alcohol. I note he was not so drunk however as to inhibit his capacity to maintain an erection.

10 I am satisfied the intercourse, both vaginally and anally, was unprotected. I am satisfied there was a deposit of some bodily fluid from the offender into the complainant. The exact nature of the bodily fluid I am unable to say on the evidence before me.

OBJECTIVE CRIMINALITY

11 From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar genre. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

12 Section 66C Crimes Act 1900 creating the offence I am dealing with is about the protection of young children from a range of experiences while their physical, emotional and psychosexual development is patently immature and the power imbalance between the child and adult grossly favours the adult. The difference between the physical, emotional and psychosexual maturity of a twenty-four old male and a fourteen year old girl is stark. The fact that consent of the victim is no defence to an offence under this section highlights the purpose of the section in protecting the young.

13 Lee J in describing the jurisprudential philosophy behind the section says,

“One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under 16... That acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct.”

14 His Honour also made this observation highlighting the law’s focus upon the power imbalance between adult males and young children,

“The law has always sought to protect young children against sexual predators particularly adult men. The law recognises, of course, as young girls grow up there is an inevitability of contact with sexual overtones and more with members of the opposite sex of the same age or a little older and that is simply one of the facts of life. But when it comes to the case of an adult male past middle age tampering with girls of twelve and thirteen years of age the crimes become crimes or enormity. ( R v Zappalla unreported NSW CCA 5 November 1991, PP2-3)”

15 While the age of this offender is less than middle age and the age of the complainant greater than thirteen the resonance of his Honour’s remarks still reaches this case. I note that since his Honour made these remarks the maximum penalty for the particular offences I am dealing with have been increased from eight to ten years and for the situation his Honour was dealing with from eight to twenty years.

16 In assessing the objective criminality the Court should have regard to the degree to which the offender is seen to exploit the youth of the complainant. (R v Phillip Sca NSW CCA 13/08/90, Badgery-Parker J).

17 The issues touching upon this exploitation include that power imbalance referred to by Lee J between the offender and complainant, the relationship between them, the question of consent, the frequency of the breach, the nature and duress of the sexual intercourse obtained.

18 The complainant had recently turned fourteen. The youth of the complainant herself is, of course, an element of the offence and therefore would not amount to an aggravating factor. However this complainant was towards the more youthful end of the range. In that sense then the criminality is greater, but given the age range is only one of two years in the charge, the significance of her more youthful age will be given muted weight.

19 The offender was twenty-four approaching twenty-five years old. I have already spoken about the difference in maturity and power balance. There had been heavy liquor, Tequila, consumed by the complainant in the presence of the offender. I am satisfied she was affected by alcohol and as such was more vulnerable than she would have been had she remained sober. This is particularly important in considering the second count.

20 The circumstances in which the complainant came to know the offender and their relationship are not revealed. The acquaintance was one of only six months. There is no suggestion of any special relationship of trust being abused nor of any deep familiarity other than the record of the kissing on a one off occasion.

21 Miss Russell, appearing for the offender, has argued strenuously that I would be falling in appealable error if I paid regard to the absence of consent as an aggravating feature. Her argument was that such an approach would be contrary to De Simoni v The Queen (1981) 146 CLR 282 at 289. The issue of consent does not arise insofar as the penile/vaginal intercourse is concerned. It maybe the complainant was consenting, or was asleep or in some alcoholic stupor at the time. However as the evidence presently stands I could not be satisfied beyond reasonable doubt that she did not consent.

22 But I am satisfied beyond reasonable doubt that there was not only an absence of consent, as for instance in the case of being in an alcoholic stupor, but a downright refusal expressed by the complainant. This is a matter I can take into account without offending De Simoni provided I do not take into account as an aggravating fact any material demonstrating that this offender knew she was not consenting. To do so would be to come to a view the offender had committed an offence more serious than the one I am dealing with. To do that would offend the De Simoni principle. (See 147 CLR at 390-393)

23 There is, in my view, clear authority establishing that I am, in some circumstances, able to take an absence of the complainant’s consent into account as an aggravating and I do so. (See R v SG [2003] NSWCCA 220 at [19] - [25])

24 There is authority, which may be thought to support Miss Russell, although the issue does not appear to have been discussed by either side in the appeal. His Honour the President, Mason P in R v Priestly NSW CCA, unreported 3 June 1997, speaking about the facts of the appeal case before him, said:

“Although the material put before the [sentencing] judge ranged from a version of events that suggested initiation of sexual encounter by the victim to a version that suggested absence of consent on her part the distinctions were not explored or even averted to in the evidence. The so-called statement of facts tended to record rather than resolve such differences. In these circumstances the [sentencing] judge correctly went no further than recording that the plea accepted by the Crown does not require or permit the matter to be addressed on the basis of consent.”

25 I take the view that in both cases the Courts were considering the element of sexual intercourse without consent carrying at least sub silentio in their minds that the element has two ingredients, one is the absence of consent and the other is the offender’s knowledge that the complainant was not consenting. The importance of the absence of consent as an aggravating feature in a section 66C(3) offence is that it focuses upon the traumatic effect, in this case, the anal intercourse upon the complainant. The criminal law has always regarded greater injury and trauma as an aggravating feature and minimal injury and trauma as a mitigating feature. (See R v Buttsworth [1983] 1 NSWLR 658 per O’Brien CJ of Cr.D.)

26 I am satisfied that vaginal and anal intercourse were instances of unprotected sex. I regard this situation as aggravating generally, but particularly in respect of the anal sex. In my view even if there was consent to the unprotected vaginal intercourse given the age and immaturity of the complainant, I regard the unprotected sex as a feature of aggravation.

27 I have earlier remarked one of the reasons for consent not being a defence to section 66C cases is because children under sixteen are regarded as lacking maturity. That lack of maturity goes particularly to their capacity to make sound judgments on matters relating to protected and unprotected sex, issues of pregnancy, sexually transmitted diseases and viruses such as HIV and hepatitis C are beyond the knowledge of most children of this age. (See the second reading speech of Act Number 9 of 2003, which was the Act introducing the amended sentence and amended structure.)

28 Intrusion of the male penis through the anus into the colon passage was painful for the complainant. There is evidence it hurt her. The infliction of pain is an aggravating factor in the anal intercourse count. The anal intercourse itself in the absence of consent amounts to an intrusive experience for the complainant into the most intimate regions of her body.

29 I regard the criminality attached to unwelcomed anal intercourse as greater than the criminality attached to unwelcomed vaginal intercourse. Although I should hasten to add I have already recognised the Crown failed to prove in this case that the vaginal intercourse was unwelcomed. But I do it for completeness because I seek to indicate that I also regard penile/vaginal intercourse as more intrusive and hence more criminal than digital penetration or cunnilingus; Nor do I regard the offender’s continuation of the anal intercourse over the complaints of the complainant as an aggravating feature because to do so would required me to make a finding that the offender knew the complainant was not consenting and would thereby have offended De Simoni.

30 However the complainant was hurting. His uncaring remarks in those circumstances, “get used to it” amounted to a self-centeredness in seeking his own sexual gratification at the cost of pain to her.

31 There is no evidence of any planning or scheming. The offences were committed in circumstances where it would seem an opportunity presented itself and was taken by the offender. The criminality of these two offences, that is, two together, but particularly because of the seriousness of the anal intercourse offence is such as to call for a period of full-time incarceration.

SUBJECTIVE FEATURES

32 I turn now to the subjective features. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it.

33 Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of the offence by the offender or some reason why a more or less sentencing outcome is appropriate.

FAMILY AND SOCIAL DYNAMICS

34 I have already remarked that the offender was approaching twenty-five years at the time of the offence. He is a single man, the eldest of four siblings. He currently resides with his parents in Mumbil, a small community near Wellington. He is well supported by his parents and family. His childhood years were spent in this area, most of his social contacts however would appear to be in Dubbo.

35 Nathan Pascoe has been in a number of relationships mostly of short term. In at least three of those relationships he has commented upon his belief of the promiscuity of his partners during the relationship. His last relationship was of some three years. It had reached a point where he contemplated marriage and it was, from his perspective, untimely terminated.

EDUCATION, EMPLOYMENT SKILLS AND HISTORY

36 Nathan Pascoe completed his HSC at the age of eighteen. Currently he works a four day week with the RTA as a labourer, or if not currently certainly in the recent past, in a road bridge construction team. He has worked with the team for four years. His father is a supervisor in the team. The team travels all over the State. It was submitted that the offender had obtained tickets for bobcats and was presently undertaking courses for dogman, which I understand is working with cranes, and a bulldozer driver. I am prepared to accept that this is so.

37 His work supervisor, Ross Murphy, has supplied a reference attesting to his value as an employee with amiable qualities and enthusiasm.

GENERAL HEALTH

38 But for his epilepsy, the offender appears to enjoy good health. The epilepsy is well controlled by Tegretol. It was submitted he was first diagnosed with epilepsy at the age of sixteen. Again I am prepared to accept that is so.

ALCOHOL AND DRUGS

39 The offender was at the time of the offence a heavy drinker. He commenced drinking aged fifteen, stopped for the three years while he was in his latter relationship and resumed drinking heavily after the separation. Grey Tryer’s opinion is that Nathan Pascoe’s feelings of inadequacy maybe a major factor contributing to his alcohol abuse.

40 The offender’s counsel submitted the offender had been attending AA for the past four months. While it is true AA does not usually report on attendance or participation at meetings, there is nonetheless an absence of evidence of this. The offender’s attendance at and participation in meetings and the effects of that participation upon him are matters the Crown should have been able to have cross-examined upon before any great weight could be given to this matter as a matter of evidence.

41 The offender’s doctor, Ian Spencer, OAM, had warned him of the dangers of drinking whilst on Tegretol. Although he does not say so in his report to the Court, it would seem from the history given by the offender to Mr Tryer that Dr Spencer warned him that the medication would increase the effect of alcohol in a big way and may affect memory. I accept it is possible the offender’s memory of the incidence before me has been affected by the interaction of Tegretol and alcohol, or by the alcohol acting alone. I have not had any direct evidence from this offender. So I make no finding one way or the other as to whether he had a memory of the events or not, and if he does not what the causes of that loss of memory were.

42 There is no evidence of any other drug abuse. I accept the offender has given a history to others of some level of his rehabilitation with drinking. Again there is no direct evidence before me on this topic, although I am willing to accept he is seeking to address it.

PSYCHOLOGICAL PROFILE

43 As a result of testing and the history taken, Mr Tryer was able to establish the offender had a capacity towards “hand on” and visual motor based tasks. The offender’s cognitive assessment fell within the average range. His personality assessments suggested some defensiveness about particular short comings as well as an exaggeration of some problems.

44 His clinical features indicated significant suspiciousness and hostility in relations with others; the likelihood that working relations could be strained; and that he may require an unusual degree of support and assistance. These are factors that I take into account later in coming to special circumstances.

45 There were traces of adventurousness, risk taking and impulsiveness in his personality profile. It may well be that this offence falls into one of those categories. He could be reckless and entertain risks potentially dangerous to himself. I make the same comment in respect of that finding.

46 There were some symptoms consistent with depressive mood including pessimism, thoughts of worthlessness, hopelessness, personal failure, anxiety and stress. Some of his anxiety may well relate to the outcome of these proceedings. The impact of the charges has been dramatic for him. His worries have disturbed his sleep. He says to Mr Tryer his sleep is reduced to a few hours nightly. He complains of sitting up till 2 or 3am worrying and being depressed.

ATTITUDE TO OFFENCES

47 Mr Peter Johnson, in his pre sentence report, expresses a view. His opinion is that as a consequence of the offender’s experience in his relationships, the offender may well harbour adverse attitudes towards women perhaps to a point of underlying anger or resentment.

48 As matters stand I could not be satisfied beyond reasonable, on the evidence before me, that this offender does have such a view. However those charged with any treatment of the offender may wish to explore that issue with him.

49 The offender has publicly expressed contrition, publicly in the sense that he told Mr Tryer, “I’m really sorry about the whole night. I feel terrible if it happened the way that Emma said.” Mr Tryer is aware of the problem attached to these expressions of regret. He observes that the offender’s sense of remorse is complicated by a claimed poor memory of events. Elsewhere Mr Tryer notes the offender accepts responsibility and expresses remorse for his actions despite claiming no memory. The accused told Mr Tryer, “The DNA evidence proves something happened. Even though I don’t feel like I did it I have to accept that something happened. I wished that it hadn’t happened.”

50 Finally, I note in the personality profile that Mr Tryer’s opinion from the testing was that the offender’s response pattern suggests some defensiveness about particular personal shortcomings as well as exaggeration of certain problems.

51 Contrition is a mitigating factor and must be proved by the defence on the balance of probabilities. In circumstances where the offender chooses not to give evidence but to rely upon self-serving statements made to a psychologist, the Court is constrained if not bound by the wisdom of observations made in the Court of Criminal Appeal that a very considerable caution should be exercised in relying upon them when no evidence is given by the offender. (See R v Qutami [2001] NSW CCA 353 at paragraphs [58] - [59] per Smart JA and at [79] per Spigelman CJ, applied by Howie J in R v Palu [2002] NSW CCA 381 at [40]).

52 The nature of contrition can vary from case to case. It can be so profound as to bring about changes in an offender’s life. This offender claimed to Mr Tryer he had reformed his alcohol abuse but was, of course, never tested on it. Contrition can be recognition of wrong doing and a willingness to be held accountable for it without demonstrating rehabilitation and life changes have occurred. Simply put, this is a case of “I have done wrong, I’ve been caught, and I accept the consequences.”

53 If the offender’s loss of memory is genuine then his attitude to contrition can be understood but the equivocal nature of the contrition nonetheless remains. It may not be his fault that the contrition has this ambivalence about it that it does, but nonetheless, the contrition is thereby less profound than it otherwise might have been, and the benefit to the offender of his contrition is the more muted than it otherwise would have been. That appears to be this case.

54 In fairness it should be said the contrition as expressed does reveal insight into the profound wrongness of behaviour of the kind he has pleaded to and his plea of guilty is a most serious acceptance that he behaved in this way. Nonetheless the reservations I have observed as to the contrition still remain.

PLEA OF GUILTY

55 The plea of guilty was entered on 21 November 2005 at Dubbo. It was entered after some negotiation it would seem, I am reinforced in that view by some submissions made this afternoon by Miss Russell as to the terms of an agreement. It seems agreed between the parties that the charges pleaded to are the charges upon which the offender was not committed for trial.

56 The charges came about it, it would seem to me, as a result of negotiation after DNA profiling evidence had been served. It was only after the DNA evidence was available, it would seem, that the offender felt confident enough to plead to what he claimed he could not recall. Both parties accept the plea was one that was early entered. However, the pleas were not entered before the Magistrate. In that sense the pleas are not as early entered as others coming before the Court attracting a twenty five percent discount. Negotiations should be done while the matter is still before the Local Court if one wants to obtain the maximum discount. While it is true, this happens rarely, the fact is it does happen. Where it does happen, those offenders are entitled to consideration of greater discount because of the greater utilitarian value of that plea than parties who leave the negotiations to a time when they are before this Court.

57 In this case the matter was before the Court on five occasions before it reached a hearing. In those circumstances he is not entitled to the full discount. Miss Russell indicates that in her view, and I accept it, the estimated length of the trial would have been at least one or two weeks. I have determined I will give a discount to the sentence I otherwise would have given. I fix that discount at seventeen and a half percent.

58 Discounts of this magnitude are allowed because the administration of criminal justice is served by persons acknowledging their guilt. A guilty plea must be recognised as a significant contribution by this offender to advancing the administration of criminal justice in this case, first and foremost because the interests of the administration of criminal justice are served through the public acknowledgement by offenders of their guilt. Pleas of guilty by offenders sustain the community’s confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime and the community’s expectation that those guilty of crime will be held accountable for it.

59 The administration of criminal justice is also served because court time, in this case two weeks, witnesses’ time, legal expenses and the like are freed so that they can be devoted to other cases. The plea reduces considerably the likelihood of contest in an appeal on the issue of guilt in respect of these two charges. All of these are important utilitarian factors insofar as the administration of criminal justice is this case is concerned.

PRIOR GOOD CHARACTER

60 No criminal antecedents have been tendered by the Crown. Miss Russell submitted there were no prior convictions. That submission was not challenged by the Crown. The onus is on the Crown to prove matters adverse to the accused. In this instance it has not been done.

61 I am prepared to accept the submission made by the defence. I note Dr Spencer records he has known the offender for twenty years. He regards the offence as being out of character for the offender. I also infer from that comment that Dr Spencer regards the accused as being a person of good character within the community that he and Dr Spencer circulate in.

62 The Probation and Parole report notes the offender’s mother expressed concern at the negative peers the offender was keeping company with prior to the matter before the Court. However I could not be satisfied beyond a reasonable doubt that there was anything other than the not infrequently encountered concern, or perhaps even over concern, of a parent towards the associates of her children or her child, especially when some element of alcohol and drinking is, or maybe, concerned with that. I am prepared to accept that the offender was a person of generally good character without prior convictions. Of course I have already referred to his family and his relationship with them and his commendable employment record.

63 This offender’s rehabilitation prospects appear to be encouraging. Mr Tryer is of the opinion that the risks of further sexual offending are within the lower to moderate range. He basis his opinion upon the following factors,

“factors such as total number of sexual offences (two current charges, no prior charges), total number of victims (1), total number of any type of offences (low), duration of sex offender history (no other history), degree of planning and premeditation (minimal), offender’s own history of sexual victimisation (none reported), offender’s own history of physical assault or exposure to family violence (none), internal motivation for change (1), stable living conditions (yes) would all be considered as part of an assessment of an offender’s risk of re-offending and viability for treatment. In Mr Pascoe’s case based on factual evidence and his self reports these factors would fall at the lower end of the spectrum for risk of recidivism. Factors such as sexualised aggression, school behaviour problems, juvenile anti-social behaviour, degree of acceptance of responsibility, remorse and empathy (apparently genuine, but some possible egocentric motivation), cognitive distortions (present but not passive), quality of peer relationships (somewhat isolated) would fall into the moderate range of concern regarding risk of re-offending.”

64 Mr Tryer’s put the risks for sexual offending at a level described as within the lower to moderate range, or to put it another way, is at moderately low risk of offending. (See pages 6 and 7, exhibit 3)

65 There are other factors that also should be regarded as positive rehabilitation indicators,

• Strong family support
• Strong employment history
• Insight into the part alcohol has played in his offending conduct
• Plea of guilty and acceptance of responsibility for his offending conduct
• Insight into the wrongfulness of this kind of behaviour
• The offender’s generally good physical health and past history of controlling his epilepsy.

66 I also see the offender’s rehabilitation being advanced by his completing community based counselling programmes that focus upon the aims of both Peter Johnson and Greg Tryer.

67 Greg Tryer speaks of the offender,

“benefiting from counselling to further consider the issues of consent, violence and the sense of entitlement raised by these offences. This would seek to further develop Mr Pascoe’s claims of generally respectful and non-abusive relationships and interaction with women. It would seek to challenge the thinking and behaviour that led to his current situation.”

68 In the report there was a reference to him being interested in doing that sort of counselling.

69 Peter Johnson at page 3 speaks that the offender,

“needs not only to address his alcohol issues but also participate in professional intervention in the custodial or community setting to address his underlying attitudes, resentments, his understanding of issues of consent and entitlement that have contributed to the commission of the offences before the Court if he is going to avoid such future difficulties.”

SETTING THE SENTENCE

70 There has been a delay of twenty months between the offence and sentence. The file discloses the offender was committed for trial on 9 March 2005 some eight months after the offending conduct. The matter was first mentioned on 3 May 2005 in this Court. It was not until six months later the pleas were entered. Presumably that time was taken up with awaiting the DNA evidence and negotiations. The defence argue the delay was not caused by it. The defence is certainly entitled to have full prosecution case disclosed to it. The DNA evidence is an important component of the prosecution case.

71 I do not regard the defence as responsible for the delay. I must say I am assuming that the DNA was late coming because it always is. This Court seeks to finalise matters within twelve matters of committal. It would appear to me to have done so on this occasion. However there was an eight month delay before committal. I do regard there having been some delay. I do not however regard the delay either standing on its own or when taken with other matters to be such as to attract the principles in Todd’s case (R v Todd [1982] 2 NSWLR 517; see also R v Fahda [1999] NSW CCA 262 per Simpson J)

DETERRENCE

72 In modern Australian society there is a very extensive raft of criminal laws passed by Federal and State Parliaments. The chief purpose of the criminal law put in place by Parliaments is to deter those who are tempted to breach the provisions of the criminal law. Parliament does that by prescribing penalties including maximum penalties of imprisonment for those who engage in conduct prohibited by the criminal law.

73 Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by particularly keeping in mind the maximum penalties available for the offences. I have already referred to the fact that this offence has seen an increase from eight to ten years in 2003.

74 There is also a specific deterrence aimed at individuals likeminded to the offender who put for such deterrence would be willing to commit crimes similar to those for which this offender is being sentenced.

75 Finally, there is a component of deterrence to be considered personal to the offender with a view to deterring him or her from re-offending. I have taken the view that no further personal deterrence is needed when I consider what the offender has gone and will go through. He was charged. He suffered the humiliation of that charge being publicly known in his community. He has had numerous appearances firstly before the Local Court and subsequently before this Court. He was committed for trial. He has endured stress at a significant level. He was arraigned and pleaded guilty in the public hearing of the Court. He has heard his conduct judicially condemned and he will serve a period of custodial time.

Concurrent Sentences

76 Pearce v The Queen indicates that each offence should be dealt with separately and given its own discreet penalty. Totality, however in this case can best be achieved by serving concurrent sentences. Concurrent sentences are appropriate because the two offences are really a reflection of ongoing criminal conduct that occurred with the same victim over a period that would best be defined by minutes rather than hours or some longer measure.

77 I regard the offence of anal intercourse as the more serious offence for reasons I have given. But for the plea of guilty I would have set an overall sentence of three years for this offence. I have discounted that by seventeen and a half, which makes 6.3 months. I have rounded that out to six months. Thus the overall sentence for the first offence is to be one of two years and a half year. In respect of this offence I find special circumstances. My reason for so finding include that this is the offender’s first time in custody, his very positive rehabilitation profile, his need to undertake counselling in a community based setting where he can begin to put into practice philosophies and strategies concerning more respectful treatment of women. The observation, which I accept, of Mr Tryer that he will need additional support. The nature of the offence may well mean that the offender will need to spend some if not all of the time in protection and his chances of returning to employment are greater the earlier he returns to the community.

78 In respect of the vaginal intercourse the criminality of this offence is not as great. It can be dealt with by way of a fixed term. But for the plea of guilty I would have set an overall sentence of fifteen months. Applying the discount of seventeen and a half percent that amounts, on my calculation, to two and a half months leaving a sentence of twelve months and a half months.

79 Would you stand up please Mr Pascoe. Nathan Robert Pascoe, I convict you of the offence that you on or about 10 July at Dubbo had sexual intercourse with EMB, a child then under the age of the age of fourteen years but under the age of sixteen namely, fourteen years, that is the first offence, the vaginal intercourse offence. For that offence I sentence you to a fixed term of twelve and a half months to commence on 10 March 2006, that is today’s date, and to expire on 24 March 2007.

80 For the second offence, the anal intercourse offence, that you on or about 10 July at Dubbo had sexual intercourse with EMB, a child then of the age of fourteen years, under the age of sixteen years namely, fourteen years. I likewise convict you of that offence. I set a non-parole period of fifteen months to commence on 10 March 2006 and to expire on 9 June 2007. I set a balance of term of fifteen months to expire on 9 September 2008. I order your release form custody on 9 June 2007.

81 Pursuant to section 51 of the Crimes (Sentencing Procedure) Act I order supervision. I set the following conditions for your parole; I order supervision of you by Probation and Parole. I order you to comply with reasonable directions of the Probation and Parole Service. Further, I request Probation and Parole to consider counselling programmes and treatment focused upon your attitude to women and inculpating an attitude of respect for women both generally and as sexual partners.

82 Just so you can clearly understand, and no doubt your counsel will see you in a minute, but you have been sentenced effectively to fifteen months imprisonment. You will be released on 9 June next year.

83 His family may come down and say goodbye to him if they wish and he will then be taken into custody.

**********