The Queen v Christian
[2020] NFSC 1
•1 October 2020
SUPREME COURT OF NORFOLK ISLAND
The Queen v Christian [2020] NFSC 1
File number: SCC 3 of 2020 Judgement of: WIGNEY J Date of judgment: 1 October 2020 Catchwords: CRIMINAL LAW – two counts of sexual intercourse without consent contrary to s 112(1) Criminal Code 2007 (NI) – one count of burglary contrary to s 188(1)(b) Criminal Code 2007 (NI) – offences committed on Norfolk Island
CRIMINAL LAW – sentence – where Court must impose a term of imprisonment for sexual offence pursuant to s 119 Sentencing Act 2007 (NI) – whether appropriate to impose term of actual imprisonment – whether desirable in all the circumstances to suspend sentence pursuant to s 39 Sentencing Act 2007 (NI)
Legislation: Criminal Code 2007 (NI) ss 112, 112(1), 188, 188(1)(b)
Criminal Procedure Act 2007 (NI) s 167F
Sentencing Act 2007 (NI) ss 3(1), 5(1), 5(2), 39, 40, 42, 43, 43(1)(a), 49(1), 49(2), 50, 51, 87, 88, 89, 119, 134, 142, 142(4), 147(1), 147(2)(a), 176
Cases cited: Amado v R [2011] NSWCCA 197
Cordeiro v R [2019] NSWCCA 308
Cowling v R [2015] NSWCCA 213
Dinsdale v The Queen (2000) 202 CLR 32
Elliott v Harris (No 2) (1976) 13 SASR 516
Hili v The Queen (2010) 242 CLR 520
McKinnon v R [2020] NSWCCA 106
Moodie v R [2020] NSWCCA 160
R v DE [2020] NSWDC 94
R v Dwyer [2008] QCA 117
R v Hallocogh (1992) 29 NSWLR 67
R v JCE (2000) 120 A Crim R 18
R v O’Keefe [1969] 2 QB 29
R v Rivkin (2004) 59 NSWLR 284
R v Shortland [2018] NSWCCA 34
R v Smith [2020] QCA 23
R v Tangi (No 12) [2020] NSWSC 547
R v Wark [2008] QCA 172
R vZamagias [2002] NSWCCA 17
Regina v DWF19 (No 2) [2019] NFSC 4
Sabapathy v R [2008] NSWCCA 82
Scott v R [2020] NSWCCA 81
The Queen v Christian (No 2) [2018] NFSC 4
The Queen v Trickey [2008] NFSC 1
Date of hearing: 28-29 September 2020 Category: Catchwords Number of paragraphs: 169 Counsel for the Prosecutor: Mr B Power Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the Offender: Ms L D Reece Solicitor for the Offender: McIntyres Lawyers ORDERS
SCC 3 of 2020 BETWEEN: THE QUEEN
Prosecutor
AND: RYAN CHRISTIAN
Offender
JUDGE:
WIGNEY J
DATE OF ORDER:
1 OCTOBER 2020
THE COURT ORDERS THAT:
1.The offender, Ryan Christian, is convicted on each of the three counts in the indictment dated 25 September 2020, being one count under s 188(1)(b) Criminal Code 2007 (NI) and two counts under s 112(1) of the Criminal Code 2007 (NI).
2.In respect of count one in the indictment, the offender is sentenced to imprisonment for a period of 14 months to commence on 1 October 2020 and end on 30 November 2021.
3.In respect of count two in the indictment, the offender is sentenced to imprisonment for a period of 18 months to commence on 1 January 2021 and end on 30 June 2022.
4.In respect of count three in the indictment, the offender is sentenced to imprisonment for a period of 18 months to commence on 1 April 2021 and end on 30 September 2022.
5.The total effective term of imprisonment is 24 months.
6.The sentence of imprisonment imposed on the offender is suspended in part pursuant to s 39(1) of the Sentencing Act 2007 (NI), such suspension to:
(a)commence on 1 April 2021, after the offender has served six months imprisonment; and
(b)end on 30 September 2022; and
(c)be subject to the conditions set out in order 8 below.
7.For the purposes of s 39(6) of the Sentencing Act 2007 (NI), the period during which the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 42 of the Sentencing Act 2007 (NI) is 1 April 2021 to 30 September 2022.
8.The offender, Ryan Christian:
(a)must be present at and not leave XXXXX (“approved residence”) between the hours of 9pm and 6am, except as otherwise permitted by a magistrate or the Officer in Charge of the Norfolk Island Police (“the supervisor”) or when faced with immediate danger (such as in a fire or medical emergency) and must advise the supervisor as soon as practicable after leaving the approved residence during any curfew period due to immediate danger;
(b)must obey all reasonable directions of a magistrate or the supervisor;
(c)must reside only at the approved residence or any other premises approved in writing by the supervisor;
(d)must submit to searches of places or things under his immediate control as directed by the supervisor;
(e)must comply with any direction of the supervisor in relation to association with specified persons or class of persons, unless permitted by a magistrate;
(f)must not consume alcohol other than in a private residence;
(g)must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained;
(h)must submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use as directed by the supervisor;
(i)must engage in counselling or treatment programs, as directed by the supervisor;
(j)must authorise his medical practitioner, therapist, counsellor or other professional involved in any treatment or assessment of the offender to provide information about the offender to the supervisor;
(k)must inform any employer of the suspended sentence and, if so directed by the supervisor of the nature of the offence that occasioned it;
(l)must not have any contact with the complainant, XXXXX , either directly or indirectly, including not requesting or encouraging any other person to contact the complainant;
(m)must provide the supervisor with access to any computer or electronic communication device possessed or used by the offender on request by the supervisor;
(n)must not leave Norfolk Island without the prior written approval of the supervisor and must adhere to any conditions imposed by the supervisor relating to any approval granted, with the exception of participating in fishing trips on boats within the waters off Norfolk Island;
(o)must not possess or have in his control any firearm or other offensive weapon other than at the premises of the Norfolk Island Clay Target Association shooting range and for the purposes of organised sporting target shooting at the Norfolk Island Clay Target Association shooting range.
9.Liberty to apply on seven days’ notice as regards any variations to order 8.
THE COURT NOTES THAT
10.The offender to serve his custodial sentence in NSW pursuant to s 5 of the Removal of Prisoners Act 2004 (NI).
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
On 28 September 2020, the offender, Mr Ryan Christian, was arraigned and entered pleas of guilty to three charges contained in an indictment dated 25 September 2020. The first of those charges was a charge of burglary contrary to s 188(1)(b) of the Criminal Code 2007 (NI). The other two charges were charges of sexual intercourse without consent contrary to s 112(1) of the Code. The charges were particularised in the indictment in the following terms; though, as explained later, the complainant’s name and the address at which the offence was committed have been anonymised in this judgment so as to prevent the disclosure of the complainant’s identity:
The Prosecutor charges Ryan Christian with the following offences:
1.On 31 May 2019 at Norfolk Island, Ryan Christian remained in [the complainant’s residential address], as a trespasser, with intent to commit an offence that involved causing harm to anyone in the building, namely [the complainant], contrary to Section 188(1)(b) Criminal Code 2007 (Norfolk Island).
2.On 31 May 2019 at Norfolk Island, Ryan Christian engaged in sexual intercourse with [the complainant], namely by performing cunnilingus on [the complainant], without her consent, and Ryan Christian knew that [the complainant] did not consent, or was reckless as to whether [the complainant] consented, to the sexual intercourse, contrary to section 112(1) Criminal Code 2007 (Norfolk Island).
3.On 31 May 2019 at Norfolk Island, Ryan Christian engaged in sexual intercourse with [the complainant] namely by penetrating [the complainant’s] vagina with part of his body, without her consent, and Ryan Christian knew that [the complainant] did not consent, or was reckless as to whether [the complainant] consented, to the sexual intercourse, contrary to section 112(1) Criminal Code 2007 (Norfolk Island).
It now falls on the Court to impose a sentence or sentences on Mr Christian in respect of the charges to which he has pleaded guilty.
THE OFFENDING CONDUCT
The facts concerning the offending conduct were not in dispute. They were for the most part set out in a Statement of Facts tendered by the Prosecutor without objection (agreed facts). Mr Christian also gave evidence, including some evidence concerning his offending conduct. It is appropriate to address first the agreed facts, then address Mr Christian’s evidence and then address any inferences that can and should be drawn from the evidence as a whole.
As adverted to earlier, the complainant’s name and residential address and the names of some of her and Mr Christian’s acquaintances have been anonymised throughout these reasons by the use of letters so as to prevent the disclosure of the complainant’s identity. That is necessary because s 167F of the Criminal Procedure Act 2007 (NI) creates a criminal offence of publishing, in relation to a “sexual offence proceeding”, not only a complainant’s name, but also “protected identity information” about the complainant and a “reference or allusion” which discloses the complainant’s name or from which the complainant’s identity “might reasonably be worked out”. Needless to say, this is a sexual offence proceeding for the purposes of the Criminal Procedure Act.
There is a clear public interest in the Court publishing its reasons for the imposition of sentences, including in respect of sexual offence proceedings. The effect of s 167F of the Criminal Procedure Act is that the Court cannot publish its sentencing reasons in such cases unless it anonymises the facts by the use of pseudonyms so as to ensure that it is not possible for persons unconnected with the proceedings to glean the complainant’s identity from the facts.
The agreed facts
Mr Christian was born on 5 September 1991 on Norfolk Island. He has lived most of his life on the island.
The complainant, who will be referred to in these reasons as Ms B, was not an Australian national. She born overseas but had been living and working on Norfolk Island for a few months at the time the offences were committed. She was in her early 20s at the time.
Ms B lived at a residence located at No 5 X Street. Her bedroom in that residence was accessible via a sliding glass door from a deck at the rear of the property. The sliding door had an insect screen and venetian blinds that Ms B usually kept closed. Like many people on Norfolk Island, she did not regularly lock the sliding door. The door was, however, closed on the night that the offences were committed.
Ms B met Mr Christian through a mutual friend, who will be referred to in these reasons as Mr D. Mr D, Ms B and Mr Christian would often spend time together. On one occasion prior to the time the offences were committed, Mr Christian took Ms B four-wheel driving when Mr D was not available. Mr Christian had been in Ms B’s bedroom prior to the night of the offences, including on an occasion, or occasions, when Mr Christian, Ms B and others had drinks together.
Mr Christian had also attended Ms B’s residence uninvited on a few occasions. On one occasion he delivered a telephone cord, but did not leave until Ms B asked him to. On another occasion, which occurred about three weeks before the evening of the offences, Mr Christian attended Ms B’s residence uninvited early one morning. It would appear that Mr Christian’s presence on that occasion made Ms B uncomfortable as she sent a text message to Mr D asking him to come over. The reason for Ms B’s discomfort was perhaps explained by what occurred on that occasion. While Mr Christian was sitting on Ms B’s bed, he said to her words to the effect: “are you going to sit on my face”. Ms B responded by asking Mr Christian what he was talking about, to which Mr Christian said “go on”. After being asked again what he was talking about, Mr Christian responded by laughing and saying he was joking. At that point Mr D and another friend arrived.
As discussed later in these reasons, this incident is of some relevance. That is because it suggested that Mr Christian had some sexual interest in Ms B. Perhaps more significantly, it indicated that Ms B had made it tolerably clear to Mr Christian that she had no sexual interest in him.
On the evening of 30 May 2019, Ms B’s friend, who will be referred to as Ms E, picked Ms B up from her residence. They bought some drinks at the Liquor Bond and then drank them at Ms E’s house. Shortly after 6.00 pm, Ms B sent Mr D a text message saying that she was going to the Leagues Club and asking him whether he wanted to meet up. Ms B and Ms E went to the Leagues Club at about 6.30 pm and had dinner and a few drinks. Mr D arrived some time later, along with Mr Christian.
Ms E left the Leagues Club at about 8.30 pm. Ms B, Mr D and Mr Christian remained at the Leagues Club until about 11.00 pm. Ms B had about six or seven drinks during the course of the evening. The agreed facts indicate that Mr Christian “did not seem extremely intoxicated”. As discussed later, however, Mr Christian’s evidence was that he had consumed a considerable quantity of alcohol during the evening and was quite drunk.
At 10.30 pm, apparently while Mr Christian, Ms B and Mr D were still at the Leagues Club, Mr Christian sent Ms B a text message that simply read “slut”. The circumstances in which that text was sent, or what prompted Mr Christian to send it, were not explained in the agreed facts. As will be seen, Mr Christian was unable to offer an explanation for this text in his evidence. As discussed later, however, it is a potentially important circumstantial fact when considered in the context of the evidence as a whole.
At about 11.00 pm, Ms B, Mr D and Mr Christian left the Leagues Club in Mr D’s truck. They drove around the island for some time, with Mr D driving, Ms B sitting in the front passenger seat, and Mr Christian sitting in the back seat. At one point they went for a swim at Emily Bay. Shortly before midnight, Ms B said she was tired and wanted to go home to bed. Mr D dropped Mr Christian off near his home then drove Ms B to her home. Mr D then returned to his home.
When she arrived home, Ms B had a shower, put on underwear and a t-shirt and eventually went to bed. She left the hallway light on, as well as some fairy-lights in her bedroom. There was bedding on Ms B’s bed, including a blanket and fitted sheet.
At about 1.10 am, Mr Christian drove to Ms B’s house. When he arrived there, he entered Ms B’s bedroom via the closed sliding door on the rear deck.
Ms B woke up to find herself on her back, with her legs bent and pushed up towards her. Her underwear had been removed and her blanket had been pulled up to her torso. Mr Christian was performing oral sex on Ms B and had his fingers in her vagina. Mr Christian was hanging off the bed, with his right arm wrapped around Ms B’s legs. He had no shirt on.
At that point, Ms B placed her hand under the covers and felt Mr Christian’s hair. She then tried to pull him up by pulling him from underneath his armpit. It was only at this stage that Ms B realised that it was Mr Christian who was performing these acts. Despite Ms B’s efforts to pull Mr Christian up, he continued the conduct and pulled Ms B in tighter. Ms B asked Mr Christian to stop. She said words to the effect: “what are you doing”, “why are you here” and “stop Pooha”. Pooha was the nickname by which Mr Christian was generally known. The offending conduct continued for another five to ten seconds, at which point Ms B succeeded in kicking Mr Christian away. At this time, Mr Christian said something along the lines of: “do you like it when you lick your best friend’s sister’s pussy”. Exactly what was meant by that that statement was left unexplained.
After the conduct ceased, Mr Christian sat beside Ms B on the bed. He told Ms B that he had wanted to see her vagina since she arrived on the island. Ms B was, not surprisingly, shaking at this point. She repeatedly asked Mr Christian to leave. Mr Christian did not leave, but instead continued to talk to Ms B. He told her that he was fascinated by her and that he had wanted to see her vagina for himself after Mr D had told him it was “nice”.
As discussed later, these statements by Mr Christian are of some significance. When considered in the context of the evidence as a whole, they put it beyond doubt that Mr Christian had a sexual interest in Ms B both before and on the evening in question. There is, however, nothing to suggest that Mr Christian’s sexual interest in Ms B was reciprocated, or that Ms B had given Mr Christian any indication whatsoever that she was sexually interested in him. Indeed, as has already been noted, quite to the contrary.
Returning to the events of the evening in question, Ms B asked Mr Christian why he was in her home and whether she had been awake when he came in. Mr Christian said that she had been sound asleep, lying on her side with the covers not completely on her. Mr Christian asked Ms B if she enjoyed what he had done. Ms B responded by telling Mr Christian that she would not tell anyone what had happened and asked him again to leave. The agreed facts record that Ms B had continued talking to Mr Christian because she did not want to startle him.
Eventually Ms B went outside to have a cigarette. Mr Christian put his shirt on and went outside with Ms B through the front door of the premises. After she had a cigarette, Ms B again asked Mr Christian to leave. He said that he need to collect his shoes which he had left at the sliding door outside Ms B’s bedroom. Ms B continued to tell Mr Christian that she would not tell anyone what had happened and Mr Christian repeatedly thanked Ms B for promising to do so. The agreed facts record that Ms B told Mr Christian that she would not tell anyone on the evening in question because she was scared that Mr Christian might hurt her again.
Mr Christian eventually left Ms B’s home at about 1.50 am on the morning of 31 May 2019. Ms B watched him leave and then locked her door.
At 2.14 am, Mr Christian sent a text to Mr D which read “fuck all u”. Mr Christian’s unchallenged evidence was that this text was sent in response to a text he had received from Mr D which asked what he was doing. His response conveyed, or was intended to convey, something to the effect of: “not much, what about you?”
Ms B did not give Mr Christian permission to enter her home on the evening in question. Nor did Ms B at any point consent to Mr Christian engaging in sexual intercourse with her.
Importantly, while the agreed facts do not contain a clear or unequivocal statement to this effect, it is common ground that Mr Christian is to be sentenced on the basis that he knew that Ms B did not consent to the sexual intercourse. That is, in any event, the inescapable inference that flows from the agreed facts. Mr Christian did not suggest otherwise. Indeed, it is recorded in a report prepared by a psychologist which was tendered on Mr Christian’s behalf that Mr Christian understood what consent was and that he agreed that he did not have Ms B’s consent to have sexual intercourse with her.
Mr Christian and Ms B exchanged messages via a social media platform in the early hours of the morning of 31 May 2019. Those messages are quoted at length in the agreed facts. It is unnecessary to set them out again in these reasons. The following points may be made about them.
First, Ms B stated on more than one occasion that what had happened was not “okay”, that Mr Christian had frightened her and that Mr Christian should never do it again. They clearly conveyed that Ms B had not consented to Mr Christian’s conduct. Mr Christian’s responses could fairly be characterised as being apologetic and as demonstrating a degree of contrition and remorse. He indicated that it was a “one-off” and he was “not like that”.
Second, in the later messages, Ms B’s language hardened somewhat and emphasised the seriousness of Mr Christian’s conduct and how unacceptable and unjustifiable it was. Mr Christian’s responses were again apologetic and remorseful.
Ms B reported Mr Christian’s conduct to the police on 3 June 2019 after speaking with her employer about it. On 5 June 2019, she made a formal complaint against Mr Christian. Mr Christian was arrested that day and charged with burglary and one count of sexual intercourse without consent. He was granted conditional bail. He declined to participate in a recorded interview with the police after receiving legal advice. He provided the police with a DNA sample. He was charged with an additional count of sexual intercourse without consent on 12 June 2019.
The underwear that Ms B was wearing on the night of the offences was never found. As discussed later, Mr Christian was unable to say whether or not he took Ms B’s underwear.
Mr Christian’s evidence
Mr Christian’s evidence in chief was given by way of affidavit. Mr Christian’s evidence in the affidavit concerning his offending conduct was brief, though he also affirmed the truth of what he had told a psychologist about the incident. The psychologist’s report was tendered without objection. The following account of Mr Christian’s evidence incorporates what he told the psychologist. Mr Christian was also cross-examined by the Prosecutor’s counsel. The evidence concerning Mr Christian’s upbringing, character and personal circumstances will be discussed separately later in these reasons.
Mr Christian’s account of the activities earlier in the evening of the offences was broadly consistent with the agreed facts and, for the most part, does not need to be repeated. There were, however, two matters of significance that he added.
First, his evidence was that by the time he, Mr D and Ms B left the Leagues Club, he was “very drunk”. While, perhaps not surprisingly in the circumstances, he was unable to recall the exact number of drinks he had that evening, when pressed in cross-examination he eventually indicated that he had bought four or five jugs of beer for consumption by him and those with him and that others had similarly purchased rounds of drinks during the evening. He also indicated that he purchased shots of Jack Daniels (a brand of American whiskey) with each jug of beer. While Mr Christian was unable to elaborate on the effect that the alcohol he had consumed had on him, it may be accepted that he was at least moderately, and perhaps significantly, intoxicated.
Second, and more significantly, Mr Christian’s evidence was that when he got back to his house after being dropped off by Mr D, he had a shower and smoked some “ice” (crystal methamphetamine). When pressed in cross-examination, he indicated that it was most likely that he smoked two “points” (0.1 of a gram). Mr Christian’s evidence was that he had first been introduced to ice by some friends when he was in Brisbane. While Mr Christian was unable to elaborate in his evidence about the effect that smoking ice had on him on the evening in question, as discussed later it provides some explanation, but of course no justification or excuse, for his conduct. It should be noted in this context that his evidence was that he stopped smoking ice after the offences because of the “bad impact” it had on him. He said that he had not taken it since.
Mr Christian was unable to explain to the psychologist what was “going through his head at the time”, though he did indicate that it “may have been due to being drunk and high on methamphetamine”. When pressed in cross-examination, Mr Christian was unable to recall what his motivation was when he got in his car shortly after 1.00 am on the morning in question and drove over to Ms B’s house and entered her bedroom. He claimed to be unable to offer any explanation whatsoever for making the apparently conscious decision to go over to Ms B’s house, uninvited and without telephoning or messaging her before doing so. As will be discussed in more detail shortly, I find that evidence very difficult to accept.
What Mr Christian did concede in cross-examination was that Ms B had never said anything to suggest that she had any romantic interest in him. He agreed that, in the incident which had occurred about three weeks before the offences, he instigated a sexualised conversation with Ms B and Ms B made it plain to him that he should not speak to her like that.
Inferences
It is important, in considering the objective seriousness of the offences committed by Mr Christian, to determine what his state of mind was in the period of time leading up to the offences. It must of course be accepted that he knew that Ms B had not consented and did not consent to having sexual intercourse with him. That is an element of the offences to which he has pleaded guilty. It must also be accepted that he remained in Ms B’s premises, as a trespasser, with intent to commit an offence that involved causing harm to Ms B, namely the offence of having sexual intercourse without consent. That is an element of the burglary offence to which Mr Christian has entered a plea of guilty.
But what was in his mind when he picked up his car keys, got in his car, drove some distance to Ms B’s house, parked his car, walked to the veranda at the rear of Ms B’s house, took off his shoes, opened the sliding door and entered Ms B’s bedroom, saw that Ms B was asleep and got into her bed? This question is of some importance. Offences of the sort committed by Mr Christian which could be characterised as being opportunistic and unplanned or “spur of the moment” would ordinarily not be considered as being as objectively serious as offences which involved some degree of foresight, deliberation or planning.
As noted earlier, I am unable to accept Mr Christian’s evidence that he has no recollection of his motivation for going to Ms B’s house that night and is unable to provide any explanation whatsoever for his actions. I consider it more likely that Mr Christian is simply unwilling to offer any explanation for his motivation and actions, most likely because he is unable to face up to the facts. While he may have been drunk and under the influence of ice at that point in the evening, and may not have been thinking rationally or logically, I do not accept that he was so intoxicated or affected by ice that he had no ability to appreciate or recognise his motivations or that he was unable to recall his motivations at any time after the event. He has no doubt had many occasions since the night of the offences on which to reflect on his offending conduct and his motivations for it. The suggestion that he is unable to recall anything about his motivation, or offer any insight whatsoever into his offending, is implausible.
I am firmly of the view that the agreed facts and evidence support the following inferences.
First, that Mr Christian was sexually interested in and attracted to Ms B. To put it bluntly, he wanted to have sexual intercourse with her. He knew, however, that she was not sexually attracted to him.
Second, something happened on the evening of 30 May and the early morning of 31 May 2019 which enlivened Mr Christian’s sexual interest in Ms B. It is unclear exactly what it was that had this effect, but it may have been a combination of incidents or events.
Third, something also occurred on the evening in question that gave rise to a sense of frustration on the part of Mr Christian in respect of his sexual interest in Ms B. That would appear to be the only logical or rational explanation for Mr Christian’s text message to Ms B which simply read “slut”, particularly in the absence of any other explanation by Mr Christian in his evidence. That text bespeaks Mr Christian feeling frustrated that, at least as he perceived it, Ms B was acting in a promiscuous way towards others but not to him. It may be accepted that the text, or the motivations for it, may well have been the product of Mr Christian’s intoxication, but that is not a complete explanation for it.
Fourth, and more significantly, perhaps emboldened by his ingestion of the drug ice when he got home, and no doubt with his mind addled and his ability to think rationally impaired by the combination of that drug and the alcohol consumed earlier in the evening, Mr Christian made a conscious decision to drive to Ms B’s place to fulfil his sexual urge or desire. It is impossible, in all the circumstances, to avoid the inference or conclusion that Mr Christian drove to Ms B’s place that evening with some intention of having sex with her in circumstances where he knew she would not or was unlikely to consent. Why else would he not have called or messaged her before coming over, or knocked on her door or woken her up when he entered her bedroom? There is no other rational, reasonable or logical explanation or hypothesis. As I have said, it may be accepted that Mr Christian’s thinking that night may not have been clear, rational or reasonable due to his ingestion of large quantities of alcohol and then ice, but that is nevertheless what his thinking was. As I have already said, I do not accept Mr Christian’s evidence that he has no recollection of his motivation.
It may, of course, be accepted that these factual findings are findings which tend to aggravate the offending conduct. I must be satisfied beyond reasonable doubt before making them. As I have already indicated, I consider that there is no other rational, reasonable or logical explanation for Mr Christian’s conduct and motivations. I am accordingly satisfied beyond reasonable doubt that those inferences can and should be drawn.
NORFOLK ISLAND SENTENCING LAW
The offence of burglary is punishable by 1,400 penalty units or imprisonment for 14 years or both. The offence of sexual intercourse without consent is punishable, on conviction, by imprisonment for 12 years. A penalty unit is $100.
By reason of s 119 of the Sentencing Act 2007 (NI), where the Court finds an offender guilty of a sexual offence, the Court must record a conviction and must order that the offender serve a term of actual imprisonment, or a term of imprisonment that is suspended in whole or in part. The Court may also make any other order in addition to those orders. An offence under s 112(1) of the Code is a sexual offence for the purposes of s 119 of the Sentencing Act: see s 3(1) of, and Sch 2 to, the Sentencing Act.
Subsection 5(1) of the Sentencing Act provides that the only purposes for which sentences may be imposed on an offender are: to punish the offender to an extent or in a way that is just in all the circumstances; to provide conditions in the Court’s order that will help the offender to be rehabilitated; to discourage the offender or other persons from committing the same or a similar offence; to make it clear that the community, acting through the Court, does not approve of the sort of conduct in which the offender was involved; to protect the Norfolk Island community from the offender; or a combination of two or more of those purposes.
Subsection 5(2) of the Sentencing Act contains a non-exhaustive list of factors or considerations that the Court must have regard to in sentencing an offender. Those factors include, relevantly: the maximum, and any minimum, penalty prescribed for the offence; the nature of the offence and how serious the offence was, including any physical, psychological or emotional harm done to a victim; the extent to which the offender is to blame for the offence; the offender’s character, age and intellectual capacity; the presence of any aggravating or mitigating factor concerning the offender; the nature and extent of the offender’s role and position in society and whether the offender took advantage, or sought to take advantage, of that role or position; the prevalence of the offence; whether the offender pleaded guilty to the offence and, if so, the stage in the proceeding at which the offender did so or indicated an intention to do so; time spent in custody by the offender for the offence before being sentenced; and any other relevant circumstance.
Division 5 of the Sentencing Act contains various provisions relating to custodial orders.
Section 39 of the Sentencing Act provides for suspended sentences of imprisonment. It is relevantly in the following terms:
(1)A court which sentences an offender to a term of imprisonment of not more than 5 years may make an order suspending the sentence if it is satisfied that it is desirable to do so in the circumstances.
(2)An order suspending a sentence of imprisonment may suspend the whole or a part of the sentence and the order may be subject to such conditions as the court thinks fit.
(3)A court shall not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to this Act.
(4)Where an offender is convicted of more than one offence in the same proceeding, a court may only make an order suspending a sentence of imprisonment imposed by it where the aggregate period of imprisonment imposed in respect of all the offences does not exceed 5 years.
…
It may be noted that, unlike in some other jurisdictions, an order suspending a sentence may be subject to such conditions as the Court thinks fit.
Section 40 provides that an offender in respect of whom a suspended sentence has been imposed under s 39 has to serve the sentence or part of the sentence held in suspense only if he or she is ordered to do so under s 42. Section 42 provides for the situation where an offender whose sentence has been suspended either commits another offence or breaches a condition to which the order suspending the sentence is subject. In summary, in those circumstances the offender may be arrested and brought before the Court. The Court may then, amongst other things, restore the sentence or part sentence held in suspense and order that the offender serve it, or extend the operational period to a date after the date of the order suspending the sentence.
Section 43 makes provision for home detention orders. A home detention order, however, is not a sentencing option in Mr Christian’s case. That is because s 43(1)(a) provides that a home detention order can only be made if “none of the offences for which the offender is being sentenced is a sexual offence”. As already noted, the offences under s 112 of the Code for which Mr Christian is being sentenced are sexual offences as defined. While the burglary offence is not a sexual offence, the evident purpose of s 43(1)(a) appears to be to preclude a home detention order where any of the offences for which an offender is being sentenced at the time is a sexual offence. While Mr Christian’s counsel initially submitted that a home detention order was a sentencing option for the burglary offence, ultimately it was conceded that it was not. It would appear that this provision was inserted in the Sentencing Act after the decision of this Court in The Queen v Christian (No 2) [2018] NFSC 4.
Subdivision 3 of Div 5 of the Sentencing Act makes provision for periodic detention. Subsections 49(1) and (2) provide as follows:
(1) A court —
(a)which convicts a person of an offence against a law of Norfolk Island; and
(b)which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months,
may, instead of sentencing the person to imprisonment, by order —
(c)sentence the person to complete such number of detention periods at a detention centre, as the court specifies; and
(d)direct that the person be released from custody subject to any order that may be made under subsection 54(2).
(2)The number of detention periods that a person may be required to serve under an order shall be calculated at the rate of 1 detention period for each week of the term of imprisonment to which the person would otherwise have been sentenced.
Section 50 specifies the “core conditions” which must be included in an order for periodic detention. Those conditions include that that “the offender not commit an offence punishable by imprisonment, while the order is in force” and that the offender “obey all lawful instructions and directions of the officer in charge or an officer” while the order is in force.
Section 51 sets out the circumstances in which a periodic detention order may be made. It provides as follows:
(1) A court shall not make an order under section 49 unless —
(a) the court is satisfied that it is appropriate for the offender to undertake such an order; and
(b)the offender submits himself or herself to a medical examination by a medical practitioner, if so required by the court; and
(c) the court has received a pre-sentence report in respect of the offender; and
(d) the court has explained to the offender —
(i) the effect the proposed order would have; and
(ii)the consequences of non-compliance with the order and the circumstances in which the offender would be taken to have breached the order; and
(iii) that the court has the power under this Act to review the order on the application of the officer in charge or the offender; and
(e)the court is satisfied that the offender consents to undertaking such an order.
(2)For the purpose of paragraph (1)(a) the court may have regard to such matters as it considers appropriate, including —
(a) the pre-sentence report referred to in paragraph (1)(c); and
(b) where a person has submitted to a medical examination by a medical practitioner, as required by the court - the report of that medical practitioner in respect of that examination; and
(c) a report by an officer, as required by the court.
Periodic detention is not an available sentencing option in respect of the two counts of sexual intercourse without consent. That is because, as previously noted, s 119 of the Sentencing Act provides that the Court must impose a sentence for a sexual offence which involves a term of “actual imprisonment”. Subsection 49(1) of the Sentencing Act makes it clear that periodic detention is an alternative to a sentence of imprisonment. It is, therefore, neither a sentence of actual imprisonment, nor a sentence involving a term of imprisonment that is suspended, as required by s 119: see Christian (No 2) at [42].
Periodic detention may, however, be a sentencing option for the burglary offence committed by Mr Christian, which is not itself a sexual offence. The question whether that would be an appropriate course in all the circumstances is considered later in these reasons.
It should also be noted in this context that a Pre-Sentence Report authored by Detective Sergeant Glenn Elder was tendered by the Prosecutor. It included the following statement concerning periodic detention on Norfolk Island:
Norfolk Island police station custodial facilities are considered suitable for short periods of detention, and are thus suitable to hold persons sentenced to periodic detention. The Norfolk Island Police Force has sufficient resourcing capability to provide the required supervision for persons committed to periodic detention with the assistance of casual appointed ‘Gaolers’ on island. The cells are compliant with modern detention facility building requirements to ensure the safety of prisoners. They are also an approved prison in accordance with Norfolk Island law (Administration Act 1936).
Periodic detention has been served on Norfolk Island and up until 7 years ago was a common form of sentencing.
In his oral evidence, Detective Sergeant Elder gave a more detailed explanation of his statement, in the context of periodic detention, that the custodial facilities on Norfolk Island are considered suitable for “short periods of detention”. His evidence was that the present resources of the Norfolk Island Police Force were such that, if a person was ordered to serve periodic detention that exceeded more than 3 months, it would be necessary for a request to be made from the relevant Commonwealth department for further resources. That was essentially because the force has available to it only five officers, one special constable and four casually employed “appointed gaolers”. The difficulty was that the gaolers were not always available to work on the weekend because of other commitments and it is necessary to have at least two officers on duty at the police station if a person is in detention.
Subdivision 4 of Div 5 of Pt 3 of the Sentencing Act contains provisions relevant to sentences of imprisonment. Relevantly, s 87 provides that, unless otherwise provided in the Sentencing Act or by the Court, where an offender has been sentenced to serve a term of imprisonment for an offence and is sentenced to serve another term of imprisonment for another offence, the term of imprisonment for the other offence is to be served concurrently with the first offence. Section 88, however, in effect provides for cumulative terms of imprisonment – where an offender has been sentenced to serve a term of imprisonment for an offence, and is sentenced to serve another term of imprisonment for another offence, the Court may direct that the term of imprisonment for the other offence start from the end of the term of imprisonment for the first offence or an earlier date. Section 89 of the Sentencing Act provides for aggregate terms of imprisonment for multiple offences. It does not, however, apply in cases involving sexual offences.
Section 134 of the Sentencing Act provides that where the Court may attach a condition to an order or require an offender to give an undertaking, the Court may, as a condition of the order or as part of the undertaking, require an offender to undertake a prescribed treatment program. There is no definition of “prescribed treatment program” in the Sentencing Act. There is, however, provision in s 176 of the Sentencing Act for the making of regulations by the Administrator, including regulations which “prescribe” various matters. In those circumstances, the proper construction of s 134 would appear to be that a “prescribed treatment program” is a treatment program which is prescribed in the regulations. The Court was informed that the relevant regulations do not include any prescribed treatment program.
Part 6 of the Sentencing Act contains provisions relating to release on parole. The Sentencing Act does not, however, contain any detailed provisions concerning the fixing of non-parole periods, other than in respect of the crime of murder. Orders which have the effect of specifying a non-parole period have been made in other matters: see Regina v DWF19 (No 2) [2019] NFSC 4.
If a parole order is made in respect of a person sentenced to a term of imprisonment under the Sentencing Act, the powers and duties of a Parole Board are to be exercised by the Parole Authority of New South Wales: see s 147(1) of the Sentencing Act, which contains a definition of “Parole Board”, and s 147(2)(a) of the Sentencing Act. Detective Sergeant Elder’s evidence was, in effect, that a decision to release a person who has been sentenced to imprisonment under the Sentencing Act is made by the Parole Authority of New South Wales and that it is that authority which would impose any conditions of parole. If the person sentenced returns to Norfolk Island, the conditions have to be supervised or enforced by the Norfolk Island Police Force.
Finally, s 142 of the Sentencing Act provides for the presentation of victim impact statements or reports in certain circumstances. Little guidance is given in relation to how such a statement or report is to be taken into account, other than that s 142(4) provides that the Court should consider any victim impact statement or report in relation to an offence before determining the sentence to be imposed in relation to that offence. As noted earlier, however, the list of matters in s 5(2) of the Sentencing Act to which the Court “shall” have regard includes “the nature of the offence and how serious the offence was, including any physical, psychological or emotional harm done to a victim” (emphasis added).
Ms B signed a victim impact statement. The Prosecutor presented and read that statement to the Court in accordance with s 142. The content of the statement will be considered later in these reasons.
RELEVANT PRINCIPLES
Before considering the factors or considerations that are of particular relevance to the imposition of an appropriate sentence on the offender in this case, it is useful to outline some relevant principles that may be derived from decisions made by this Court and in other jurisdictions concerning offences under, or in similar terms to, s 112 of the Code. Consideration will also be given to the relevant principles relating to the various sentencing options that are available under the Sentencing Act.
The offence in s 112(1) of the Code is plainly a very serious offence. That is readily apparent from the fact that the legislature has seen fit to make the offence punishable by imprisonment of up to 12 years. In The Queen v Trickey [2008] NFSC 1 at [9], Weinberg CJ (as his Honour then was) said the following in relation to the offence of sexual intercourse without consent, albeit in a case involving facts and circumstances materially different from this case:
Having sexual intercourse without the other person’s consent is always an act deserving of heavy punishment. Rape is a crime which comprehends a wide variety of circumstances and as many degrees of culpability. It is recognised that deterrent and retributive elements predominate in sentencing for this offence. Heavy penalties are necessary to mark its gravity, to express the community’s disapproval of the crime, to act as a deterrent and to protect victims from unwanted sexual contact.
Such is the seriousness of the offence of sexual intercourse without consent that it appears to have been accepted that a conviction for that offence will ordinarily result in a custodial sentence in the absence of unusual or exceptional circumstances: Sabapathy v R [2008] NSWCCA 82 at [71]; R v Shortland [2018] NSWCCA 34 at [6].
One of the difficulties in applying any such presumption or general rule is that the offence of sexual intercourse without consent can be committed in such a wide variety of different circumstances: Cowling v R [2015] NSWCCA 213 at [49]. For my own part, I do not consider that it is particularly helpful to approach the sentencing in this matter on the basis of any such general rule or presumption. In any event, it is clear that there have been cases in the past, albeit in other jurisdictions, where sentences have been imposed for offences involving sexual intercourse without consent which do not involve any actual time spent in custody, including suspended sentences. In both Shortland (at [6]) and Cowling (at [49]), reference was made to statistics compiled by the Judicial Commission of New South Wales that suggested that there are cases involving offences of sexual intercourse without consent where suspended sentences have been imposed. Counsel for Mr Christian was not, however, able to locate or identify any particular case where a suspended sentence was imposed and not disturbed on appeal. Shortland was a case where a Crown appeal against a suspended sentence was allowed on the basis that it was manifestly inadequate.
There are a number of factors or considerations which may bear on the objective seriousness of an offence of sexual intercourse without consent. It appears to be accepted, as a general proposition, that “penile rape” will attract a higher sentence than “digital rape or oral rape”: R v Smith [2020] QCA 23 at [37]. It has, however, been repeatedly stated that there is “no rigid compartmentalisation of rape offences” and that in each case “it is the particular circumstances which will determine the level of criminality and together with the other facts the sentence to be imposed”: R v Wark [2008] QCA 172 at [36]-[38]; Smith at [37].
Other factors that may bear on the objective seriousness of the offence include: the duration of the offending; whether the offending involved any physical violence, coercion or intimidation; and whether the offending was planned or opportunistic. It is important to emphasise, however, that the short duration of the offending and the absence of any physical violence or coercion should not be approached on the basis that they are mitigating factors. That is because the absence of an aggravating feature does not operate in mitigation: see the consideration of this issue in Shortland at [81]-[95] and the cases there cited. Intoxication, whether by alcohol or drugs, is also not a mitigating feature: R v Dwyer [2008] QCA 117 at [1]-[6].
There can be little doubt that general deterrence is a particularly weighty consideration in sentencing for offences involving sexual intercourse without consent. In Smith, Morrison JA said as follows in relation to an offence involving sexual intercourse without consent with a sleeping victim (at [51]):
The very serious nature of the offending conduct … calls for a sentence that reflects the need to deter others who might be inclined to violate a woman sleeping in her own bed.
In relation to suspended sentences, as was observed in Christian (No 2) at [60], a sentence of imprisonment can no doubt be a significant and effective punishment, even where the execution of that sentence is suspended: R v JCE (2000) 120 A Crim R 18 at [15], [24]-[25]. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered more severe than, for example, a community service order, even though it may seem on its face to be less punitive: R vZamagias [2002] NSWCCA 17 at [31] (per Howie J, with whom Hodgson JA and Levine J agreed).
The imposition of a suspended sentence of imprisonment must be approached in three stages: Zamagias at [23]-[29]. First, the court must conclude that no penalty other than imprisonment is appropriate. Second, the court must determine what the term of that sentence should be. That determination must be made without regard to whether the sentence will be served immediately or the manner in which it is to be served: Zamagias at [26]. It cannot be influenced by what order might be made after the sentence has been imposed. It follows that a sentence must not be increased in length because there has been a decision to suspend its operation: Zamagias at [26]. The third step is for the court, once the term of the sentence has been determined, to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. It should be noted in this context that this staged approach taken to the imposition of a suspended sentence would appear to be applicable to suspended sentences under the Sentencing Act given the terms of s 39(3).
The three-step process involved in arriving at a suspended sentence has been criticised as being entirely unrealistic: Amado v R [2011] NSWCCA 197 at [5]. It is, however, a process that must be followed: see Dinsdale v The Queen (2000) 202 CLR 32; R v Zamagias.
In relation to the third stage, in R v Zamagias, Howie J said (at [28]):
[T]he appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic (1998) 45 NSWLR 209 at 250B.
His Honour also said (at [32]):
Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.
The imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court is “not quite certain what to do”: Dinsdale at [79] (per Kirby J), quoting R v O’Keefe [1969] 2 QB 29 at 32. It must be recognised that the suspension of a term of imprisonment will deprive the sentence of some of its effectiveness as a deterrent because it is significantly more lenient than any other sentence of imprisonment. Nevertheless, as was made clear in the passages from Zamagias just referred to, another purpose of punishment is the protection of the community and that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the possible expense of deterrence.
It is also fallacious to view a suspended sentence as amounting to no punishment at all. In Elliott v Harris (No 2) (1976) 13 SASR 516, Bray CJ said (at 527):
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
Those observations were made in the context of a case where a sentence of imprisonment was wholly suspended. They are, however, equally applicable where consideration is being given to whether a sentence of imprisonment should be partly suspended where that is an available sentencing option.
Importantly, at least on Norfolk Island, an order suspending the whole or a part of the sentence will be on such conditions as the Court thinks fit.
Similar considerations apply in relation to periodic detention, though it should be noted that, unlike in some other jurisdictions, periodic detention under the Sentencing Act is not considered to be a sentence of imprisonment; rather, it is regarded as an alternative to imprisonment: Christian (No 2) at [42]. It follows that the strict staged approach considered in Zamagias in respect of the imposition of periodic detention may not be applicable in respect of periodic detention under the Sentencing Act. In any event, a sentence involving periodic, rather than full-time, custody, clearly has a considerable element of leniency built into it: R v Hallocogh (1992) 29 NSWLR 67 at 73; R v Rivkin (2004) 59 NSWLR 284 at [433]. It is, nevertheless, a sentence of inconvenience in that it clearly disturbs the ordinary affairs of the life of the offender and restricts the offender’s liberty.
EVIDENCE AND OTHER MATERIAL RELEVANT TO SENTENCE
Both the Prosecutor and the offender tendered evidence relevant to the imposition of an appropriate sentence.
Material tendered by the Prosecutor
As has already been noted, the Prosecutor tendered the agreed facts, a Pre-Sentence Report and a victim impact statement authored and signed by Ms B.
The agreed facts have already been referred to in considerable detail.
The Pre-Sentence Report was referred to earlier in the context of the availability of periodic detention facilities on Norfolk Island. The report also contains some detail concerning Mr Christian’s social history and background, his medical and psychiatric history, his educational background and employment history and his compliance with bail conditions. These topics will be addressed in more detail later in the context of Mr Christian’s subjective circumstances. In summary, Mr Christian was born on Norfolk Island and has lived most of his life there, other than periods where he has worked in mines in Queensland and Western Australia. He has no recorded criminal history and appears to be a valued member of the Norfolk Island community. He has received two Australia Day awards, essentially for acts of bravery. He is employed and financially independent.
The Prosecutor called additional evidence from the author of the Pre-Sentence Report, Detective Sergeant Elder, though essentially at the Court’s request. The purpose of calling additional evidence from Detective Sergeant Elder was to get his views, as the officer-in-charge of the Norfolk Island Police Force, about the types of conditions that could be imposed if, for example, the Court made an order suspending some or all of any sentence of imprisonment imposed on Mr Christian. Detective Sergeant Elder’s views were also sought as to whether, from his perspective, it would be preferable for the Court to impose conditions upon the suspension of a sentence, rather than making a parole order. As noted earlier in these reasons, the effect of making a parole order would be that any subsequent decision to grant parole and any decision concerning conditions of parole would be made by the Parole Authority of New South Wales.
The Prosecutor took Detective Sergeant Elder through the conditions that were imposed by the Court upon the making of a home detention order in Christian (No 2). Detective Sergeant Elder agreed for the most part that, subject to some fairly minor changes, the sorts of conditions imposed in Christian (No 2) would be both desirable and able to be appropriately supervised if made as a condition of suspending a sentence of imprisonment in this matter.
As for the other material tendered by the Prosecutor, Ms B’s victim’s impact statement clearly demonstrated that the offences committed by Mr Christian have had a profound and ongoing impact on Ms B’s emotional and psychological wellbeing. That is, in all the circumstances, hardly surprising given the nature of the offending. The offences also had the effect of changing Ms B’s plans for the next years of her life.
Ms B stated that she is now “hypervigilent” and reluctant to trust people, even her current partner. She described feeling anxious, worrying a lot and being irritable. She said that she has flash backs and nightmares and that she is getting counselling and therapy. She believed that her character had changed and that Mr Christian had “stolen [her] sparkle”. She also described how she feels like she is being judged or blamed for the offences, which is regrettably an emotion experienced by many victims of sexual offences.
Following the offences, Ms B moved out of her then home on Norfolk Island as she was afraid that Mr Christian would come back. She left Norfolk Island about a month later because it was too hard to stay. She felt ashamed because she believed everybody knew what had happened. She returned to her country of birth. She described, in that context, about how her “world [had] become smaller” and that her “independence [had] been massively impacted”.
As discussed in more detail later, Mr Christian initially pleaded not guilty to the burglary count and it had been set down for trial. While he pleaded guilty to the sexual offences, it was indicated that there would be a sentence hearing involving contested facts. It was, in the circumstances, necessary for the Prosecutor to call Ms B at both the trial and the sentence hearing. Arrangements were made to have her evidence taken by video link. Ms B was prepared to give evidence right up to the eve of the trial. She was only told that she may not be required to give evidence a few days before the appointed trial date and this was confirmed only after Mr Christian was re-arraigned and pleaded guilty on the day that the trial was due to commence. In that context, Ms B described in her victim impact statement how she became distressed and anxious as the trial date approached and how she found it “extremely confronting having to go through the events of the night in detail”.
Material tendered on the offender’s behalf
As has already been noted, an affidavit sworn by Mr Christian was read. His evidence concerning the circumstances of the offence was referred to earlier. Aside from that, Mr Christian described how he had been born and grew up on Norfolk Island. When he worked on the mines in Queensland and Western Australia, he lived in company accommodation and returned to Norfolk Island on his rostered time off. He has never had a residence anywhere other than Norfolk Island and has lived here full-time for the last three years.
Mr Christian said that he had read Ms B’s victim impact statement and found it “very upsetting” and “awful” reading about the impact that his actions had on Ms B. He said that he was sorry for what he had done.
As noted earlier, Mr Christian’s evidence included that he had smoked ice before going to Ms B’s house on the evening in question. He said that he did not tell the police that he had used ice when he was interviewed for the Pre-Sentence Report because he was afraid of what they would do if he told them. It is perhaps not difficult to appreciate why he may have thought that way. Mr Christian said concerning his use of the drug:
Doing what I did to [Ms B] really shocked me. I couldn’t believe I had acted in that way. I don’t want to blame it on the drugs but I do feel that they had a bad impact on me. I stopped working for about three months. I felt like I had hit rock bottom. I decided to stop using ice and have not done so since that time. I don’t feel the need to use the drugs but I am willing to undergo drug education and counselling.
Mr Christian also described the effect that his compliance with the fairly onerous bail conditions that he has been subject to since being charged had had on his life, including the loss of an employment opportunity.
A report prepared by a resident psychologist on Norfolk Island, Ms Dee-Anne James, was also tendered on Mr Christian’s behalf. The account that Mr Christian gave to Ms James about his offending was referred to earlier in these reasons. It is unnecessary to repeat what was said earlier on that topic, save as to observe that Ms James referred to the fact that Mr Christian “found articulating his motivations difficult” and that it was “unclear as to whether this was a result of a lack of awareness regarding the cognitive processes that led to his decision-making leading up to the incident or whether [Mr Christian] struggled to remember what was going through his mind prior to the incident”. My findings in respect of that issue were referred to earlier and do not need to be repeated.
Ms James’s report refers in some detail to Mr Christian’s somewhat difficult and challenging upbringing. His mother died when he was 13 years old and his father left to work on the mainland when he was 14 years old. Mr Christian then resided alone in his father’s house, though with the support of his extended family who resided in other dwellings on the large family property. Mr Christian left school at the age of 15 and started work as a labourer.
Ms James offered the opinion that while Mr Christian had displayed great resilience in coping with the challenges in his upbringing, the loss of his mother and the absence of his father and older brother “would likely have impacted [on Mr Christian’s] ability to access adequate role-modelling and advice with regard to appropriate sexual behaviour and relationships”. So much so may be accepted; however, it is to be noted in that regard that in his own evidence, Mr Christian said that he had never had any sexual problems in his relationships with adult women in the past, and that he had never had any problem understanding sexual boundaries with the women that he had been involved with in the past. He said that he would not consider himself to be sexually immature.
Ms James also made a number of recommendations “[a]s the court sees fit”. Those recommendations included that Mr Christian be involved in drug and alcohol counselling with the main focus being “relapse-prevention” given Mr Christian’s current state of abstinence. She also recommended that Mr Christian be involved in “sexual assault counselling aimed at reducing the risk of recidivism”, with treatment planning including “cognitive distortions, consent and legal sexual behaviour, empathy and victim awareness, emotional management, intimacy and relationships, problematic sexual fantasy and arousal, the influence of substance use on sexual assault, and safety and self-management planning”.
Finally, four character references were tendered on Mr Christian’s behalf. Each of them attest to Mr Christian’s good character and to the fact that he is a valued member of the Norfolk Island community.
Mr Terence Grube is the Honorary Secretary of the Norfolk Island sub-branch of the Returned and Services League of Australia (RSL). He has known Mr Christian for all of his life. He noted that Mr Christian was a proud Norfolk Island resident and referred to his competence and resourcefulness in his chosen trade. Perhaps more significantly, Mr Grube referred to Mr Christian’s volunteer work with the RSL in respect of civil and construction projects. He observed that in volunteering for and carrying out that work, Mr Christian had demonstrated passion and enthusiasm. He described how Mr Christian was always courteous, polite and respectful. He said that Mr Christian had never let him down. While Mr Grube did not state that he was aware of the offences committed by Mr Christian, I was informed that he was so aware when he prepared the reference.
Ms Alison Christian was another person who described having known Mr Christian his whole life. Ms Christian was Mr Christian’s teacher during his early childhood. Importantly, Ms Christian described how she had engaged in discussions with Mr Christian about his offending and indicated that he had expressed “deep levels of remorse and regret for his actions”. She also stated that, knowing Mr Christian, she strongly believed that he understood the extent of his actions and will never repeat the offences. She stated that Mr Christian understood the “rippling consequences” of his actions for not only the victim but also many others. Ms Christian also stated that Mr Christian had “always gone out of his way to give back to the community that raised him” and that he had developed a range of personal relationships, many of them with respected elders of the community.
Mr George Parsons is the proprietor of a business which has employed Mr Christian in recent times. He has known Mr Christian for 20 years. He referred to Mr Christian’s difficult upbringing. He stated that he was aware of the offences committed by Mr Christian and that he was prepared to continue to employ Mr Christian if he was not sentenced to a term of imprisonment to be served away from Norfolk Island.
Finally, Ms Hayley Smith, who is Mr Christian’s current partner, provided a character reference. She described Mr Christian as a kind and generous person who always puts the needs of other people ahead of his own. He was said to be a selfless person. Ms Smith referred to the two Australia Day awards that Mr Christian had received and also referred to his participation in traditional Norfolk Island activities for the benefit of both the younger generation and the older generation who are no longer able to participate in those activities. Ms Smith noted that Mr Christian had never once shown any aggression towards her or verbally abused her and described how the offences were completely out of character. She was confident that Mr Christian would never offend again.
FACTORS AND CONSIDERATIONS RELEVANT TO THE APPROPRIATE SENTENCE IN THIS MATTER
It is perhaps convenient to group or divide the factors and considerations relevant to determining the appropriate sentence to impose in this matter into those factors relevant to the objective seriousness of the offending conduct, and those that are relevant to Mr Christian’s subjective circumstances.
The objective seriousness of the offending
There could be no question whatsoever that the offences committed by Mr Christian were very serious.
As has already been observed, the maximum penalties that the legislature has set for offences against s 112 of the Code reflect the seriousness with which the legislature regards offences of this nature. Even putting that to one side, offences involving sexual intercourse without consent are self-evidently serious. So too is the offence of remaining in a property as a trespasser with intent to commit an offence involving harm to another person.
The facts and circumstances of Mr Christian’s offending are also objectively very serious.
For the reasons given earlier, I do not accept that Mr Christian’s offending could be characterised as opportunistic or spur of the moment. He made a deliberate decision to get his car keys, leave his premises, drive to Ms B’s house uninvited, enter her bedroom stealthily and without waking her, remove items of her clothing and perform sexual acts upon her while she was asleep and in circumstances where he plainly knew that she did not consent. There were numerous opportunities during that course of conduct, particularly before he entered Ms B’s premises, where Mr Christian could have reversed his actions. Even when Ms B awoke and tried to pull him off her, Mr Christian persisted for some time, albeit a fairly short time.
The offending conduct was particularly serious given that it occurred in Ms B’s own home where she had the right to feel safe. It occurred in circumstances where Ms B was particularly vulnerable given that she was asleep in her own bed. She had no means or opportunity to defend herself. Mr Christian’s conduct constituted a serious violation of Ms B’s body. Not surprisingly, Mr Christian’s actions have caused deep and ongoing emotional and psychological trauma for Ms B and otherwise seriously disrupted her life.
I do not consider it to be a particularly useful or worthwhile exercise to make a finding about where these offences sit on some spectrum of seriousness in respect of offences against s 112 and s 188 of the Code. All offences against s 112 are serious. The same could probably be said in respect of offences against s 188 of the Code. The spectrum of offences that might be committed against both s 112 and s 188 is very large. Nevertheless, lest it assists in some way, I would probably position the offences committed by Mr Christian towards the lower end of the spectrum of offences committed under both of those provisions.
In any event, it is self-evident that conduct of the sort engaged in by Mr Christian should be met with condign punishment and denunciation. The punishment should also be sufficient to deter not only Mr Christian from reoffending, but importantly deterring others in like circumstances.
The offender’s subjective circumstances
Mr Christian is a relatively young man. He has a previously unblemished character. He is a valued member of the Norfolk Island community. It may readily be accepted that these offences were an aberration and were entirely out of character.
Having seen and heard Mr Christian giving evidence, and having read the psychologist’s report and the character testimonials tendered on his behalf, I accept that Mr Christian’s prospects of rehabilitation are good. I do not consider him to be an inherently bad man. Indeed, quite to the contrary. As for rehabilitation, I accept Ms James’s opinions that Mr Christian would benefit from participating in drug and alcohol and sexual assault counselling. His participation in such programs will further minimise any prospects of reoffending. I note also in this context that Mr Christian has a solid support network of family and friends on Norfolk Island. I consider that his support network will assist his rehabilitation.
I also accept that Mr Christian has demonstrated real contrition and remorse concerning his offending. He recognised the seriousness of his wrongdoing and apologised to Ms B almost immediately. I consider that his expressions of remorse to others, including Ms James, were genuine and heartfelt. I think he has also come to recognise the significance of his actions for others, including Ms B. I believe that he is genuinely sorry for the hurt that he knows he has caused her.
Needless to say, Mr Christian’s contrition and remorse is also reflected in his pleas of guilty.
The only reservation I have concerning Mr Christian’s attitude to his offending arises from the findings I referred to earlier concerning his evidence that he did not recall what motivated him to commit the offences. As I said earlier, I do not accept that he does not recall his motivation. I consider that his evidence in that regard showed an inability or perhaps unwillingness to truly face up to his offending conduct. On one view that may demonstrate a lack of insight into his offending. On balance, however, I incline to the view that it is perhaps more a demonstration of a deep sense of shame for what he has done.
I should finally note in the context of Mr Christian’s subjective circumstances that I consider that any custodial sentence that he is required to serve on the mainland, which will be the case if he is sentenced to any period of full-time custody, will undoubtedly be more onerous for Mr Christian given his deep roots in Norfolk Island society. He was born and bred on Norfolk Island. Even those periods when he worked on the mainland could fairly be characterised as “fly in fly out” residency on the mainland. He has always remained a Norfolk Islander. The evidence indicates that he has no family or friends in New South Wales, which is where he would serve any period of full-time custody. His family and friends on Norfolk Island may even be unable to visit him due to the current uncertain status of the COVID-19 restrictions.
Other mitigating circumstances
Mr Christian pleaded guilty to the offences at a relatively early stage.
While he did not plead guilty to any of the offences at the committal stage, nor did he contest the committal. In committal proceedings on Norfolk Island the defendant has the right to cross-examine witnesses without leave, unlike the position in most other Australian jurisdictions. None of the prosecution witnesses were cross-examined at the committal stage. Most significantly, there was no request to cross-examine Ms B.
Mr Christian indicated an intent to plead guilty to the two sexual offences soon after an indictment was filed in this Court. That arose during discussions between the Prosecutor and Mr Christian’s legal advisers. It was initially indicated that there would be a limited contest in relation to the facts at the sentence hearing. It was also indicated that Mr Christian would plead not guilty to the burglary offence, though he would consent to and request a judge alone trial. The trial of that offence and the sentence hearing were set down for hearing.
Very shortly prior to the hearing, and following further representations and discussions between the parties, Mr Christian advised that he would plead guilty to a count of burglary that was particularised in slightly different terms. The relevant change was that, whereas previously the charge had been particularised in terms of Mr Christian having the requisite intent when he entered Ms B’s property, the new indictment, which was in due course presented by the Prosecutor, charged that Mr Christian remained on the property after forming that intent. Mr Christian’s legal advisers also advised the Prosecutor and the Court, on the eve of the sentence hearing, that the facts would not be contested and that it was unnecessary for the Prosecutor to call Ms B.
I accept that Mr Christian’s pleas of guilty to the sexual offences were made at an early stage. While his plea of guilty to the burglary count occurred on the eve of the trial, that was the product of ongoing discussions between the parties which resulted in an amendment to that count in the indictment.
In pleading guilty to the offences and not contesting the facts in any way, Mr Christian not only saved the community the expense and inconvenience of a contested trial, but more significantly avoided the situation where Ms B would have been required to give evidence. That would undoubtedly have been a difficult and traumatic experience for her. The offender is to be given credit for pleading guilty at a relatively early stage and is to receive a significant discount from the sentences that would otherwise have been appropriate. As was noted earlier, his pleas of guilty also reflect his contrition and remorse.
SUBMISSIONS AND COMPARABLE CASES
The Prosecutor submitted that, taking into account all the circumstances of the case, a term of actual imprisonment should be imposed. The main basis of that submission was the objective seriousness of the offences, the need for a sentence which has a deterrent effect, in particular general deterrence, the requirements of denunciation and appropriate punishment and the profound effect that the offences have had on Ms B, the victim of the offences. The Prosecutor also submitted that various comparable cases supported the imposition of a sentence involving actual imprisonment.
The comparable cases referred to by the Prosecutor, some of which have already been referred to for one reason or another in these reasons, were: Cordeiro v R [2019] NSWCCA 308; Smith; R v DE [2020] NSWDC 94; Cowling; and Trickey. Aside from Trickey, each of those cases concerned sentences imposed for offences involving sexual intercourse without consent which were committed, or began to be committed, while the victim was asleep. Counsel for Mr Christian accepted that those cases were comparable.
In Hili v The Queen (2010) 242 CLR 520, the High Court said as follows about the proper approach to take to sentences imposed in other like cases (at [54]):
[A] history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits … “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”.
(Footnotes and emphasis omitted.)
I do not propose to discuss any of the comparable decisions at length. I doubt that it could be said that this limited range of cases establish what could be said to be a “correct range” of sentences, in the sense of an upper and lower range beyond which a sentence cannot be imposed. Each of the comparable cases involved facts and circumstances, both in relation to the nature and objective seriousness of the offences and the subjective circumstances of the relevant offender, which are distinguishable in some way from the facts and circumstances of this case. Each of them, other than Trickey, involve sentences imposed under sentencing regimes that differ in material respects from the sentencing regime under the Sentencing Act in Norfolk Island. While I am conscious of the need for consistency in the imposition of sentences, consistency is best secured by the application of established sentencing principles, not by following what other judges have done in other cases.
Despite what I have just said about the comparable cases, I will make the following brief points about them. First, in each of the cases, the sentencing judge or the appeal court, as the case may be, emphasised the objective seriousness of the offences. Second, in each of the cases a sentence of actual imprisonment was imposed. None of them involved a sentence of imprisonment which was wholly suspended. Third, the term of imprisonment to be served before the sentence was to be suspended, or the offender was eligible for parole, ranged from three years and three months (R v DE) and six and a half months (Smith).
The main submission advanced on behalf of Mr Christian was that the Court could impose a sentence of imprisonment without requiring Mr Christian to serve any period in full-time custody. That could be achieved, so it was submitted, by imposing a sentence of imprisonment in respect of each of the counts but wholly suspending those sentences on condition. Alternatively, the Court could wholly suspend the sentences of imprisonment in respect of the sexual offences and impose a sentence involving periodic detention for the burglary count.
Counsel for Mr Christian implicitly recognised that a sentence which did not require Mr Christian to serve any period in actual custody had a degree of leniency to it. It was submitted, however, that such leniency was justified having regard to Mr Christian’s prior good character, the fact that the offences were an aberration and out of character, his contrition and remorse, his timely plea of guilty, the fact that he has been on bail on onerous conditions for a relatively lengthy period of time and the hardship he would endure should he be required to serve a period of imprisonment on the mainland.
THE APPROPRIATE SENTENCE
I have given anxious consideration to the sentence to be imposed on Mr Christian in this case. The weighing and balancing of all the competing considerations in this case is by no means an easy task.
On the one hand, I firmly believe that it would be desirable for Mr Christian to be punished for this offence in his own community. I also consider that the interests of rehabilitating Mr Christian would be better served by imposing conditions on him while he remains within his support network in the Norfolk Island community. I find it difficult to accept that the interests of rehabilitation would be advanced by sentencing Mr Christian to full-time imprisonment on the mainland.
On the other hand, the fact remains that the offences committed by Mr Christian are objectively very serious. Nobody has or could cavil with that proposition. It is necessary to impose a penalty which adequately reflects the seriousness of the offences. Mr Christian must be punished to an extent or in a way that is just in all the circumstances and in a way that will discourage him and other persons from committing the same or similar offences. Importantly, the sentence imposed must also make it abundantly clear that the community, acting through the Court, does not approve of the sort of conduct in which Mr Christian was involved. In short, it must be emphatically denounced by the imposition of a condign sentence.
In all the circumstances, I am firmly of the view that no penalty other than a penalty involving imprisonment is appropriate for any of the offences committed by Mr Christian. That is the case not only in respect of the offences of sexual intercourse without consent, but also the offence of burglary.
A sentence involving periodic detention would not be appropriate in all the circumstances for the burglary offence. The objective seriousness of that offence is such that an offence involving imprisonment is required to achieve the objectives of just punishment, denunciation and deterrence. Under the sentencing regime on Norfolk Island, periodic detention is an alternative to imprisonment.
As for the offences of sexual intercourse without consent, s 119 of the Sentencing Act constrains the sentencing discretion such that a term involving actual imprisonment, or imprisonment suspended wholly or in part, must be imposed. I am, irrespective of s 119 of the Sentencing Act, firmly of the view that a sentence involving actual imprisonment is appropriate for those offences. The offences are of such objective seriousness that any sentence not involving a period of actual imprisonment would be inappropriate.
The critical issue is whether the sentences of imprisonment that must, in all the circumstances, be imposed should be suspended in whole or in part. Having regard to the relevant principles concerning suspended sentences, which were considered at length earlier in these reasons, before considering the question whether the sentences should be suspended, I must consider the terms of imprisonment that would be appropriate without regard to how those sentences will be served.
Having regard to all of the facts, circumstances and considerations which I have already addressed at length, I consider that the following sentences of imprisonment for the three offences are appropriate.
First, in relation to the offence of burglary, count one in the indictment, the offender, Mr Christian, should be sentenced to a term of imprisonment for 14 months.
Second, in relation to the first offence of sexual intercourse without consent, count two in the indictment, the offender, Mr Christian, should be sentenced to a term of imprisonment for 18 months, to commence three months after the commencement of the imprisonment in respect of count one.
Third, in relation to the second offence of sexual intercourse without consent, count three in the indictment, the offender, Mr Christian, should be sentenced to a term of imprisonment for 18 months, to commence three months after the commencement of the imprisonment in respect of count two.
As can be seen, while those three sentences are mostly to be served concurrently, there is an element of accumulation. While it would be fair to characterise the offences as involving a single course of conduct, the element of accumulation is warranted to reflect the distinct criminality inherent in each of the separate offences. The total effective sentence of imprisonment to be served as a result of these sentences is 24 months imprisonment.
I should make it plain that these sentences have factored into them a discount of 20 percent to reflect and take account of Mr Christian’s timely pleas of guilty, his willingness to facilitate the course of justice and his cooperation with the authorities. They also have a degree of leniency built into them reflecting Mr Christian’s overall positive subjective circumstances.
I turn now to the question of how the sentence of imprisonment is to be served.
There are effectively three available options.
The first option is to not suspend the sentences at all, but to make an order fixing a time after which Mr Christian would be eligible for parole. That would effectively leave the decision as to whether to grant parole, and the conditions upon which it should be granted, to the Parole Authority of New South Wales.
The second option is to partly suspend the sentences after Mr Christian has served a period in custody. While theoretically it would be open to partly suspend the sentences without imposing any conditions, plainly it would be desirable to impose conditions that would assist in Mr Christian’s rehabilitation and reintegration into the Norfolk Island community.
The third option is to wholly suspend the sentence and impose conditions. Plainly this would be the most lenient option.
I have given serious and anxious consideration to whether the sentences of imprisonment that are to be imposed should be wholly suspended. Ultimately, however, I consider that the objective seriousness of the offences and the need for a sentence which will appropriately punish and denounce Mr Christian’s offending conduct precludes that course. I accept the Prosecutor’s submission that this matter requires a sentence that involves a period of actual custody.
I am, however, firmly of the view that the sentence should be partly suspended subject to conditions. That course would plainly be preferable to the making of an order involving parole in circumstances where decisions about the grant of parole and the conditions on which it is granted would most likely be made by people who have never set foot on Norfolk Island. I consider that it is preferable for the Court to set the appropriate conditions for Mr Christian’s release from custody and his reintegration into the community, particularly in circumstances where the Court has had the benefit of evidence from the officer who will be responsible for supervising and enforcing those conditions on Norfolk Island.
The question then is how long should Mr Christian be required to serve in actual custody before his sentence is suspended on a conditional basis? This is again a question to which I have given anxious consideration. After reflecting at length, I have determined that an appropriate term of imprisonment for Mr Christian to serve before his sentence is suspended is six months. The conditions which will be imposed will be those that were the subject of Detective Sergeant Elder’s evidence. As noted earlier, those conditions were broadly the same as those imposed in the case of Christian (No 2), though it will be necessary to make some minor changes and variations to those conditions. The operative period of those conditions will be the balance of the term of imprisonment; that is, effectively two years.
I recognise and accept that the suspension of Mr Christian’s sentence of imprisonment after six months displays a considerable degree of leniency. In all the circumstances, I consider that such leniency is warranted on this particular occasion. At risk of repletion, that is because of Mr Christian’s prior good character, the fact that the offences were an aberration and out of character, his contrition and remorse, his timely plea of guilty, the fact that he has been on bail on onerous conditions for a relatively lengthy period of time and the additional hardship he would undoubtedly endure should he be required to serve a period of imprisonment on the mainland. That hardship is likely to be exacerbated by the constraints and restrictions that are likely to be continued to be imposed for some time in the prison system on the mainland as a result of the current pandemic: see McKinnon v R [2020] NSWCCA 106; Scott v R [2020] NSWCCA 81; R v Tangi (No 12) [2020] NSWSC 547; Moodie v R [2020] NSWCCA 160.
I should also emphasise that, while suspension of the sentences after six months involves a considerable degree of leniency, the conditions that will be imposed will be stringent and onerous. They will considerably constrain Mr Christian’s freedoms. They are designed to facilitate Mr Christian’s rehabilitation and reintegration into the Norfolk Island community, discourage him and other persons from committing the same or a similar offences, make it clear that the community, acting through the Court, does not approve of the sort of conduct in which Mr Christian was involved and protect the Norfolk Island community from the offender. Mr Christian will also have the suspended sentence hanging over his head for two years. As is clear from s 42 of the Sentencing Act, any transgression by Mr Christian during that period may result in the suspension being revoked and Mr Christian having to return to custody.
Prior to actually imposing the sentences, I will give the parties the brief opportunity to confer and consult, including with Detective Sergeant Elder, in relation to the final form of the conditions which will be imposed in respect of the suspension of the sentence.
CONCLUSION AND DISPOSITION
The offender, Ryan Christian, is convicted of each of the offences in the indictment dated 25 September 2020.
The following sentence is imposed on the offender.
In relation to count one in the indictment dated 25 September 2020, the offender Ryan Christian is sentenced to a term of imprisonment of 14 months to commence on 1 October 2020 and expire on 30 November 2021.
In relation to count two in the indictment dated 25 September 2020, the offender Ryan Christian is sentenced to a term of imprisonment of 18 months to commence on 1 January 2021 and expire on 30 June 2022.
In relation to count three in the indictment dated 25 September 2020, the offender Ryan Christian is sentenced to a term of imprisonment of 18 months to commence on 1 April 2021 and expire on 30 September 2022.
The total effective sentence is therefore imprisonment for 24 months.
I make an order pursuant to s 39 of the Sentencing Act suspending the sentence after the offender has served six months imprisonment, that is from 1 April 2021, with the operative period of this order ending on 30 September 2022 and being subject to the following conditions:
(1)the offender, Ryan Christian, must be present at and not leave XXXXX (“approved residence”) between the hours of 9pm and 6am, except as otherwise permitted by a magistrate or the Officer in Charge of the Norfolk Island Police (“the supervisor”) or when faced with immediate danger (such as in a fire or medical emergency) and must advise the supervisor as soon as practicable after leaving the approved residence during any curfew period due to immediate danger;
(2)the offender, Ryan Christian, must obey all reasonable directions of a magistrate or the supervisor;
(3)the offender, Ryan Christian, must reside only at the approved residence or any other premises approved in writing by the supervisor;
(4)the offender, Ryan Christian, must submit to searches of places or things under his immediate control as directed by the supervisor;
(5)the offender, Ryan Christian, must comply with any direction of the supervisor in relation to association with specified persons or class of persons, unless permitted by a magistrate;
(6)the offender, Ryan Christian, must not consume alcohol other than in a private residence;
(7)the offender, Ryan Christian, must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained;
(8)the offender, Ryan Christian, must submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use as directed by the supervisor;
(9)the offender, Ryan Christian, must engage in counselling or treatment programs, as directed by the supervisor;
(10)the offender, Ryan Christian, must authorise his medical practitioner, therapist, counsellor or other professional involved in any treatment or assessment of the offender to provide information about the offender to the supervisor;
(11)the offender, Ryan Christian, must inform any employer of the suspended sentence and, if so directed by the supervisor of the nature of the offence that occasioned it;
(12)the offender, Ryan Christian, must not have any contact with the complainant, XXXXX , either directly or indirectly, including not requesting or encouraging any other person to contact the complainant;
(13)the offender, Ryan Christian, must provide the supervisor with access to any computer or electronic communication device possessed or used by the offender on request by the supervisor;
(14)the offender, Ryan Christian, must not leave Norfolk Island without the prior written approval of the supervisor and must adhere to any conditions imposed by the supervisor relating to any approval granted, with the exception of participating in fishing trips on boats within the waters off Norfolk Island;
(15)the offender, Ryan Christian, must not possess or have in his control any firearm or other offensive weapon other than at the premises of the Norfolk Island Clay Target Association shooting range and for the purposes of organised sporting target shooting at the Norfolk Island Clay Target Association shooting range.
The period during which the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 42 of the Sentencing Act is 1 April 2021 to 30 September 2022.
The offender and the Prosecutor have leave to apply to the Court on seven days’ notice for any variation of any of the conditions.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 1 October 2020
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