Darke v R

Facts

1. This summary of facts is taken from the remarks on sentence which were in turn extracted from the Agreed Statement of Facts dated and signed 11 February 2020: 4. In September 2017, officers with the Child Internet Exploitation Unit of the New South Wales Police commenced an investigation into certain activities of the offender. He was arrested on 7 February 2018 and his premises searched. He participated in a lengthy recorded interview with police and made the following admissions - (a) In 2016, he had a mobile phone and an account with Telstra. He also had a laptop computer. He accessed the internet using wi-fi, which at the time was registered in the name of his landlord. (b) He was the creator and sole user of a Facebook account and used his mobile phone and the laptop to access it. He also used Facebook Messenger through an application on his telephone. (c) About 2014-15, he had engaged in conversations via Facebook Messenger and on video-chat with a woman (the mother) from Canada whom he had met through a mutual friend. She had a daughter about nine or 10 years of age. He spoke with the mother about sexual things. (d) The offender spoke to the daughter at one time on a video call, at first denying but ultimately admitting that he was aroused by this conversation and was probably masturbating when it was taking place. (This was not seen by the child and the conversation itself was innocuous.) (e) The offender could not remember if he requested the mother to provide images of a sexual nature of her daughter but he thought he may have received a photograph depicting the daughter with her head on her mother's naked breast. He believes that the mother might have suggested it and he might have cooperated. (f) The offender agreed that he was sexually aroused by his chats and constantly "closed my eyes and pictured things". (g) He had requested, for reasons of sexual gratification, to see the daughter naked. He knew that she was 11 or 12 years of age. (h) He had asked the mother to show him her daughter's vagina, in the context of the mother having been largely compliant so far and expecting that she might agree. (i) He had verbally adopted a coaching role, and the mother verbally adopted a student role with regards to sexual experience. He agreed that part of the coaching involved telling the mother how to sexually engage with her daughter. (j) The offender engaged in a video-chat with the mother during which the mother showed him her sleeping daughter's naked behind. He found this sexually arousing. (k) The offender discussed sexual activity between himself, the mother and the daughter. (l) Despite his discussions with the mother about this, the offender never booked flights to travel to Canada although he agreed that he may have met up with her if he did go to Canada. He maintained that he would not have engaged in sexual activity if he had met the daughter in person. (m) The offender denied being sexually attracted to children. 5. The mother told Canadian authorities that it was the child who had initiated the sucking on her breast about which, she said, the child had a preoccupation. She had taken a picture of it when her daughter was biting her nipple. The mother is depicted as topless but the child is fully clothed. She sent this image twice to the offender. Offensive as it is in the context, it is at the lowest level of indecency. There is no evidence that it was passed on by the offender to any other person. 6. The offending conduct, as described in the Statement of Agreed Facts, commenced with a conversation on Facebook Messenger on 6 August 2016. During this conversation, the mother and the offender discussed the "naughtiest things" they had each done "sexually". The mother also told the offender she had a 9 year old daughter. The mother and the offender continued these Facebook communications, including exchanging messages, photographs and video calls, until 11 September. 7. The relevant communications constituting the offences took place on 7, 8, 9 and 10 September 2016. In summary, they comprised a large number of graphic and sexually explicit exchanges, which included persistent attempts to persuade the mother into facilitating online sexual access to her daughter including sexual activity between the mother and the girl despite the mother's repeated expressions of reluctance (interspersed, however, with apparent encouragement). The offender solicited sexual images and videos involving the girl and obtained the picture to which I have already referred. He also sent material describing explicit sexual activity between children and adults to familiarise the mother with the idea of sexual activity between them and her daughter. 8. It is apparent from the interchanges that the offender persuaded the mother to show him her sleeping daughter's naked behind on 8 September. He had no contact with the child aside from one innocuous conversation during a video call in the mother's presence on 9 September, to which I have already referred. Nothing of a sexual nature was discussed between the mother and the offender in the girl's presence. 9. The exchanges were ended emphatically by the mother who stated, "I fell in love with you wrongfully, you no longer have me under your spell. This evil ends today, now" … What you wanted of my daughter is heinous … Evil ends NOW". 10. On 12 September 2016, the mother went to the Royal Canadian Mountain Police alleging inappropriate behaviour between her daughter and her father, from whom the mother had been separated for some time. There was, however, no substance to the allegations. In the course of the investigations, her communications with the offender were disclosed and the mother herself charged with several offences. She was ultimately convicted of endangering the morals of her daughter by taking a sexually suggestive photo of her (namely, the photograph to which I have already referred) contrary to s 172 of the Criminal Code of Canada (which carries a maximum penalty of two years imprisonment) and given a non-custodial sentence. One of the significant factors taken into account was the fact that she suffered from a longstanding mental disorder. The conviction, together with surrounding circumstances, resulted in the daughter's moving from her mother's custody to that of her father and has had, for some time at least, no contact with her mother. 11. The offender's mobile telephone and computer were seized by police. The offender provided the details necessary for access, in particular to his Facebook account. Importantly, no evidence of additional criminal communications was found.

Chronology regarding the guilty plea

1. Given ground 1(a) of the appeal asserts delay, and to explain the basis for the 10% discount for utilitarian aspects of the (late) plea of guilty factored in by the sentencing judge, the following additional chronology should be noted:

• The applicant was released on bail at the time of his arrest: 7 February 2018.
• On 26 June 2019 the applicant was committed for trial.
• On 11 September 2019, the applicant was arrested for breach of bail and was refused bail.
• He was released again on conditional bail on 14 October 2019.
• On 28 October 2019 a plea offer was made by the CDPP which was the same as the plea ultimately entered by the applicant. He refused the offer at this time.
• The week before the date fixed for trial, a plea offer was made to plead guilty to the two schedule offences.
• The day his trial was set to commence, 10 February 2020, a guilty plea was notified and following negotiation with the Crown about facts, a guilty plea was entered on 11 February 2020.
• The applicant returned to custody on 19 February 2020 after a successful detention application was made on 11 February 2020.
• The proceedings on sentence were listed for sentence hearing on 21 August 2020, but the applicant's material was not ready due to logistical issues and a plan to retain Dr Furst, psychiatrist, to assess the applicant. The proceedings were adjourned part heard to October, and then further adjourned to 27 November 2020.
• Dr Furst's report was dated 24 November 2020 and was tendered at the sentencing hearing on 27 November 2020.

The statutory context of the offences

1. The offence on the indictment appears in Chapter 8 of the Criminal Code (Cth) dealing with "Offences against humanity and related offences". Division 272 deals with child sex offences outside Australia.
2. Section 272.14 provides: 272.14 Procuring child to engage in sexual activity outside Australia (1) A person commits an offence if: (a) the person engages in conduct in relation to another person (the child); and (b) the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and (c) the child is someone: (i) who is under 16; or (ii) who the person believes to be under 16; and (d) one or more of the following apply: (i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia; (ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs; (iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs. Penalty: Imprisonment for 15 years. (2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d). Note 1: For absolute liability, see section 6.2. Note 2: For a defence based on belief about age, see section 272.16. (3) A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place. (4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
3. Subsections (3) and (4) provide important context to understanding the nature of the offending for which the applicant was sentenced. The reality of the intended conduct ever occurring is expressly disavowed in the statute as a requirement to prove the "procuring".
4. The two offences on the schedule fell within the subdivision of the Criminal Code (Cth) that deals with offences relating to the use of carriage service for child pornography material or child abuse material: Subdivision D - Offences relating to use of carriage service for child pornography material or child abuse material 474.19 Using a carriage service for child pornography material (1) A person commits an offence if: (a) the person: (i) accesses material; or (ii) causes material to be transmitted to himself or herself; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material; or (iv) solicits material; and (aa) the person does so using a carriage service; and (b) the material is child pornography material. Penalty: Imprisonment for 15 years. (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1): (a) intention is the fault element for the conduct referred to in paragraph (1)(a); (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b). Note: For the meaning of intention and recklessness see sections 5.2 and 5.4. (2A) Absolute liability applies to paragraph (1)(aa). Note: For absolute liability, see section 6.2. (3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.
5. It is offending that is different in nature to the procuring. It entails different and separate criminality despite involving the same victims as the procuring offence.

Ground 1a - "considerable delay" not taken into account

1. The applicant asserted that delay in sentence was a factor in his favour not taken into account. It was submitted that there was delay in his arrest and charging and there were other delays caused by the COVID-19 pandemic. Because nothing was said about this in the remarks on sentence, it can be assumed that it was not considered but it should have been. Complaint was also made that the evidence of rehabilitation - employment as well as engagement with a psychologist - was not taken into account because it was not mentioned overtly in the remarks on sentence.
2. As pointed out by the respondent, delay is not one of the mandatory sentencing matters listed in s 16A(2) of the Crimes Act (Cth). Its relevance depends on various factors set out in Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114 ("Scook") at [31] to [33] and [58]. No particular issue about delay and how it should be treated for the purposes of sentencing was raised at the proceedings on sentence. There was some discussion about delay, indicating that the sentencing judge was mindful of the chronology of events. Whilst there was a lapse of time between September 2016 and the arrest in January 2018, there was no evidence the applicant was adversely affected by this period of delay. After arrest the proceedings progressed at a pace consistent with the applicant exercising his rights, including choosing not to plead guilty until the day of his trial and adjourning sentencing proceedings to pursue evidence in the form of Dr Furst's report.
3. It is evident the question of rehabilitation and prospects of further rehabilitation formed part of his Honour's consideration and instinctive synthesis in the way he dealt with good character, noting both that the offending was isolated and that the applicant had sought psychological help. The remarks on sentence also indicate that he accepted Dr Furst's assessment of a low risk of re-offending.
4. As observed in Scook, being left in a state of uncertain suspense, whilst stressful, is a consequence of involvement in the criminal justice system and is common to most, if not all offenders. While delay of almost two years was substantial, there was nothing tendered in the subjective evidence that spoke of any actual condition caused by or affected by the timing of the sentencing occurring some four years after the offending and almost two years after arrest.
5. No error has been shown in the way the chronology of events was dealt with by the sentencing judge, even if the word "delay" could be applied to that chronology.
6. This ground of appeal fails.

Ground 1c - s 16A(2)(h) - cooperation with law enforcement agencies in the investigation of the offence and other offences

1. The applicant submitted that because he never denied his involvement, the facts, nor required civilian witnesses to be cross-examined, there should have been additional consideration given to these matters separate to the consideration of the utilitarian discount. This should have led to a further favourable impact on the discount for the plea of guilty.
2. This ground has no substance. The limited cooperation provided by the applicant is referred to in the remarks on sentence at [4] and [11]. As submitted by the respondent, the applicant's submissions conflates a number of unrelated issues such as proposals about how the trial would be conducted and the utilitarian value of the plea of guilty with this separate and distinct factor.
3. In the face of an overwhelming Crown case evidenced by the many messages, the cooperation with the prosecution was unsurprising. There was no basis to conclude that the sentencing judge failed to take into account the limited cooperation provided by the applicant. He referred to that limited cooperation in his remarks on sentence. There is no suggestion that the applicant provided any wider assistance to the authorities.

Section 17A - Restriction on imposing sentences

1. This ground too has no substance. Section 17A does not state that the provision must be referred to before a sentence of imprisonment can be imposed. It simply requires that the Court is satisfied that no other sentence is appropriate in all the circumstances of the case.
2. First, it was conceded by the applicant's legal representative at the opening stages of the proceedings on sentence that a custodial sentence was inevitable, "... it's just a question of how long really".
3. Second, as submitted by the respondent, there is no particular incantation that must be followed so long as the reasons for the decision are stated. The sentencing judge identified several reasons: 1. The applicant's conduct in seeking to bring about sexual interactions between a mother and her child was seriously criminal. 2. The applicant's conduct had the potential to cause long term and seriously adverse consequences for both the nine-year-old child and the mother. 3. The applicant's conduct was persistent. 4. The applicant's conduct caused a breach of trust between the mother and her daughter. 5. General deterrence remains important despite the applicant's asserted psychological issues because the function of this law is to protect children.
4. The written submissions of the applicant on sentence also stated that the Court "would be considering a sentence of 3 years or less… the offender has served a sentence that justice requires is appropriate, or very close to". (At this stage the applicant had been in custody for a total period approaching 12 months).
5. The objective gravity of the offending was such that a sentence of full-time imprisonment was inevitable.

Error conceded - s 16A(2AAA)

1. Section 16A(2AAA) states: 16A (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order - to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program.
2. This subsection was introduced into the Crimes Act (Cth) in 2020 and became operative in July 2020 just one month before the sentencing proceedings commenced.
3. The Explanatory Memorandum to the amending legislation, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measure) Bill 2019 at [255] to [258] states: [255] This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing Commonwealth child sex offenders. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity. [256] This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program. [257] The new subsection 16A(2AAA) of the Crimes Act requires the court to have regard to the objective of rehabilitation when determining the sentence to be passed or order to be made. Under proposed subsection 16A(2AAA) the court will have to consider if it would be appropriate to make orders imposing conditions about rehabilitation or treatment options. A further consideration is whether the sentence or non-parole period provides sufficient time for the person to undertake rehabilitation. For example, generally a non-parole period of 18 months to two years is necessary for offenders to complete a sex offender rehabilitation program while in prison. [258] In taking these matters into consideration the court is only required to have regard to what they consider appropriate, taking into account such matters as are relevant and known to the court. There is no requirement for the courts to conduct independent enquiries into rehabilitation options for a particular offender.
4. The Crown's written submissions on sentence briefly referred to the existence of 16A(2AAA) in the context of general comments regarding the applicant's prospects of rehabilitation, with no comment specifically directed to how the sentence to be imposed could facilitate the objective of rehabilitating the applicant. The purpose behind the legislative amendment was not the subject of submission.
5. The sentencing judge made no reference at all to s 16A(2AAA) and there was nothing in the remarks on sentence to suggest that he had applied focus to the mandatory consideration of the objective of rehabilitation and to considering whether it was appropriate to impose any conditions about rehabilitation or treatment options and in determining the length of any sentence or non-parole period.
6. As the respondent submitted, the remarks on sentence would need to demonstrate how this consideration has been undertaken and applied and they do not do so. This means that a mandatory requirement in imposing the sentence has been missed.

Re-sentence

1. Because of the apparent failure by the sentencing judge to take into account the requirements of s 16A(2AAA), the sentencing discretion miscarried and this Court is required to resentence the applicant.

Objective seriousness

1. In assessing the objective seriousness of the offence of procuring there are several matters to consider. The age and number of the children, the nature of conduct in which they were involved, the depravity in the content of the activities and the significant need for general deterrence: Baden v R [2020] NSWCCA 23 at [27].
2. The offending involved only one child. The applicant was told that the child was nine years old. The message exchanges make this clear. For example, the mother messaged: "She's only 9. She hasn't even hit puberty" to which the applicant replied: "Girls as young as 3 have those urges", and a little later in the same exchange, when he pressed the mother on why she would not let him "coach" the child in sexual exploration she replied" "Because it crosses a line… She's 9 not the age of consent. So it's illegal too!". At a later point in the same exchange in response to a request by the applicant that the mother show the child a photo of the applicant's penis "Why? She doesn't need to know about a male penis intimately at 9" to which the applicant replied, "She wants to know bout them" (sic).
3. Whilst the conduct corresponded to the statutory description of being "in relation to" the child, the acts of procuring were directed to the mother. There was no direct contact with the child. Whilst on its face this may seem to indicate a lesser level of seriousness, the pernicious nature of what he was seeking to procure was for the mother to engage in described sexual acts with her nine year old daughter for his sexual gratification. This injects a level of gross abuse of trust and damage to the child's family as a result of the procuring methodology he adopted.
4. The applicant had spoken in the messages about travelling to their location in December 2016 to engage in specific sexual acts with both of them. The messages show that he persistently tried to normalise the proposed sexual conduct by manipulating the mother and preying upon her insecurities about having a sexually "repressed" upbringing. It is serious conduct that falls above the lowest level of objective seriousness but is below the mid-range.
5. The conduct in respect of the soliciting of child abuse material was also serious. Persistent pressure was applied over a 4-day period, vacillating between manipulative and pre-emptory, pressing for pictures of the child's "pussy" with her "naked and awake". When the mother was hesitant, the applicant pushed back: "show me or stop contacting me".
6. The child abuse material sent to the applicant was at his request and was not as graphic as what he had requested. It comprised a single photo classed in the lowest level of child abuse material. Given the close connection with the offence for which the applicant was to be sentenced, the form offences do not, in my view, add significantly to the weight to be given to the personal deterrence and retribution in relation to the primary offence.
7. The focus of the conduct was a relatively confined four days in September 2016, although persistent over those days. The offending stopped because the mother withdrew from contact and went to the police. The applicant is not known to have engaged in any conduct like this before or since.

Subjective features

1. The applicant is 46 years old and other than some minor driving offences he has no previous criminal convictions. He was raised by his father as a sole parent together with his paternal grandparents. His grandfather he describes as harsh and abusive. He had five half-sisters and 2 half-brothers. He lost a brother and a sister in accidents and misses them.
2. He has not been married. He has had some long-term relationships with women and currently has a fiancé with whom he lived whilst on bail.
3. The applicant worked as a truck driver and has a long-term interest in racing car driving. Some of the material tendered on the issue of extra-curial punishment indicates that he received adverse publicity referring to that public profile at the time of his arrest as some of his racing car driving was related to fund raising for children's charities.
4. The applicant asserted that he suffered "frontal lobe damage" from a head injury in a car accident in 2001 the details of which were not the subject of any evidence other than his own assertions to Dr Furst, Psychiatrist and Ms Howell, Psychologist to whom he was sent by his solicitor in 2020 for reports to tender at the Sentencing proceedings. He told them both that since then he had "issues" with memory loss and anxiety. Nothing contemporaneous evidencing a frontal lobe injury or frontal lobe damage or memory loss was provided.
5. Dr Furst observed that motor vehicle accidents can cause injury to the brain by direct blows to the skull or brain and or rapid deceleration of the head/skull at impact. He said that can include damage to the frontal lobe and bleeding inside the brain. Such head injuries and front lobe syndrome can include higher levels of impulsivity, disinhibition, memory problems and personality changes.
6. The applicant sustained a head injury in 2010 which was the subject of independent confirmation in the form of clinical notes from Liverpool hospital which indicated a fracture of the petrous bone sustained after a syncopal episode where the applicant fainted and was unconscious for an estimated 5 minutes.
7. There was a suicide attempt in June 2017 following on accumulation of a number of stressors - a recent relationship break up, significant debt, employment problems and betrayal by his racing-car career peers. He told Dr Furst and Ms Howell that he was drinking excessively and struggling emotionally.
8. Dr Furst concluded that it was likely that the applicant was engaging in the offending behaviour in 2016 at least in part, as a means of seeking sexual arousal and or sexual relief thereby making himself feel better emotionally and relieving symptoms of low self-esteem, depression, anxiety and stress.
9. The applicant told Ms Howell that in 2016 he was in financial trouble, had broken up from a major relationship and was using alcohol to cope. He claimed that it was in this state that he committed the offending, that he "hates himself" for doing it, and has strong feelings of guilt and shame. Ms Howell noted that he had "voiced regret" for his actions. She concluded that he had good prospects of rehabilitation, that he is at medium risk of reoffending and is motivated to have psychological treatment in the community.
10. There was some debate between Ms Howell and Dr Furst as to the correct diagnosis for the applicant's mental condition. Both concluded he suffered from depression - Ms Howell favouring a diagnosis of major depressive disorder. Dr Furst concluded that the applicant met the criteria for persistent depressive disorder, alcohol use disorder, persistent neurocognitive disorder and personality disorder.
11. Malcolm Desland, the applicant's treating psychologist between the 2017 suicide attempt and early 2020, in his report dated 13 February 2020, urged consideration for a "non-custodial situation" for the applicant to enable access to ongoing therapy with Mr Desland and to reduce prospects of deterioration into more severe depression and suicidality. He does not in that report set out what the "therapy" aims are, what conditions he was treating or what his treatment has achieved.
12. The applicant has no custodial infringements. He was assaulted twice on one day in February 2020 causing bruising to his ribs and face and was again assaulted on 4 July 2020 injuring his right shoulder. He stated in his affidavit that his shoulder continues to cause pain and mobility problems. He requested and received protective custody after the assaults.
13. He has difficulty with diet due to allergies which he says have not been adequately catered for in custody leading to anorexia and weight loss. His contact with family has been seriously limited by COVID-19 lockdowns and his location at correctional facilities that are a long distance from his father and fiance.
14. Dr Furst concluded that the applicant's risk of reoffending fell somewhere between 5% and 12% within 5 years of release, noting that procuring offences are generally being regarded as more serious than possession of child abuse material alone. Dr Furst also concluded that the applicant's time in custody will be more onerous, given his emotional vulnerability and personality vulnerability and his presence in strict protective custody.
15. A report dated 14 September 2021 authored by Ms Ahern, Chief Psychologist at Communities and Justice Intensive Therapeutic Programs appended to the affidavit of Ms Lo, Solicitor, sworn 15 September 2021 confirmed that the applicant was assessed in July 2020 and that there were "no meaningful dynamic risk factors that significantly increased his future risk of sexual reoffending" and that he has a 0.1% prospect of returning to custody within 2 years of release. Ms Ahern also noted that the applicant was not eligible for any custody-based programs, and he was not thought to have a mental illness of a severity that would make him eligible for treatment under the "Mental Health Pathway".
16. The applicant did not give evidence and so his assertions of remorse remain untested and must be treated with caution and weighed accordingly. A tendered letter of apology evidences some minimisations of his conduct such as "I've read the chats with (the mother) and they only went on for four weeks.." and "I was also drinking very heavily and not sleeping well. Many of our long chats were done at night when I should have been sleeping." The letter does however contain some faint suggestion of insight and remorse, and having regard to this and the experts' opinions, I consider his risk of reoffending to be low.
17. The plea of guilty was entered late, but a discount for its utilitarian value and his willingness to facilitate the process of justice should be given and that discount should be 10%.
18. There was probably some extra-curial punishment associated with the short flurry of negative newspaper publicity in February 2018 at the time of his arrest. This publicity referred to some of the facts of the offending and was accompanied by recognisable photographs of the applicant in his racing car gear.
19. It is well-established that general deterrence is the primary sentencing consideration for offending of this type and has been described as the paramount consideration: R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at [70]. Specific deterrence is also a feature given the offender persisted in procuring sexual activity with the victim despite knowing she was only nine years old and that his conduct was illegal, he did so for sexual gratification, and despite asserting insight and remorse he has demonstrated some elements of excusing his own conduct and minimising its significance.
20. There is nothing sufficiently specific in the reports of Dr Furst, Mr Desland or Ms Howell or anywhere else in the evidence that would support any basis to find any reduction in the applicant's moral culpability for the offending. No actual causal link has been articulated between the alleged frontal lobe damage and the offending but only a theoretical one of frontal lobe injury (if it occurred) causing possible impulsivity and disinhibition. I accept the analysis of Dr Furst set out at [53] of this judgment none of which reduces the applicant's moral culpability for the offending.
21. There was expert material tendered which made reference to courses or treatment options directed to rehabilitation. Both Ms Howell and Dr Furst spoke of the potential for sex offender treatment. Ms Howell offered the view that the applicant had had a positive therapeutic relationship with his treating psychologist and was to recommence "work" with that psychologist on release from custody, that he was willing to undergo sex offender treatment, and that she understood that there was such treatment available in custody as well as in the community.
22. Dr Furst noted that the applicant would benefit from psychiatric treatment and ongoing psychological treatment, as well as drug and alcohol counselling through an in custody program such as EQUIPS (Addiction) but that he probably does not require a specific sex-offender treatment program and that in the community he could have ongoing psychological therapy and drug and alcohol counselling with a focus on relapse prevention.
23. The affidavit material tendered on re-sentence indicated that the applicant had been considered ineligible for custody-based programs and that he was provided with only two counselling sessions in custody, one in April 2020 and the other in August 2021, but in the community he was availing himself of regular counselling with Mr Desland between mid-2017 and his incarceration in early 2020, although no specifics regarding the treatment aims or success of the counselling was discussed in Mr Desland's very short report.
24. I have had regard to the requirements of s 16A(2AAA) of the Crimes Act and specifically whether it is appropriate, in furthering the objective of rehabilitation of the applicant, to impose any conditions about rehabilitation or treatment options or to in determining the length of any sentence or non-parole period, to fashion it so as to include sufficient time for him to undertake a rehabilitation program.
25. The proposed sentence is one under s 20(1)(b) Crimes Act 1914 (Cth) involving a period of imprisonment followed by conditional release. Section 20(1B) has application as the applicant is being sentenced for one or more "Commonwealth child sex offences". Section 20(1B) states: "(1B) If at least one of the offences the person is convicted of is a Commonwealth child sex offence, the court must specify under paragraph (1)(b), as mentioned in subparagraph (1)(a)(iv), the conditions that the person will, during the specified period: (a) be subject to the supervision of a probation officer appointed in accordance with the order; and (b) obey all reasonable directions of the probation officer; and (c) not travel interstate or overseas without the written permission of the probation officer; and (d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs."
26. Given the fact that the applicant was not provided with any custody-based programs, and the lack of clarity in the evidence as to the success or otherwise of any past counselling in terms of his rehabilitation, rehabilitation should be furthered by the imposition of conditions that the applicant undertake courses and programs to assist in addressing his offending behaviour and alcohol misuse.
27. The sentencing judge initially imposed a term of imprisonment of 3 years with a non-parole period of 2 years so that the period of conditional liberty comprised only 1 year. When the sentence was corrected on 15 February 2021, the sentencing judge imposed a sentence of imprisonment for 3 years, to be released after 2 years to enter into a recognisance to be of good behaviour for a period of 3 years. The sentence correction gave rise to what was, in effect, a more onerous sentence than that which had been imposed initially. In the circumstances of the case, in resentencing the applicant, it is appropriate that this Court should impose a sentence which operates for an overall period of 3 years.
28. The applicant is sentenced to 3 years imprisonment commencing on 15 January 2020 and expiring 14 January 2023. (The sentence is backdated to the agreed date of 15 January 2020 to reflect time served).
29. I consider that it is appropriate to set a recognisance release order with a recognisance self in the sum of $1, for a period of 1 year, commencing 14 January 2022, with the following conditions: 1. The offender must accept the supervision of Community Corrections NSW. 2. The offender must obey all reasonable directions of Community Corrections NSW. 3. The offender may not travel interstate or overseas without the permission of Community Corrections NSW. 4. The offender must undertake such treatment or rehabilitation programs that Community Corrections NSW reasonably directs including psychological counselling, EQUIPS (Addiction) (or similar program) and specific sex offender treatment program(s).
30. Accordingly, I propose the following orders: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. The sentence imposed on 15 February 2021 is quashed. 4. The applicant is sentenced to 3 years imprisonment commencing on 15 January 2020 and expiring 14 January 2023. 5. Direct that the applicant be released on giving security, self in the sum of $1, after serving 2 years for a period of 1 year commencing 14 January 2022, with the following conditions: 1. The offender must accept the supervision of Community Corrections NSW. 2. The offender must obey all reasonable directions of Community Corrections NSW. 3. The offender may not travel interstate or overseas without the permission of Community Corrections NSW. 4. The offender must undertake such treatment or rehabilitation programs that Community Corrections NSW reasonably directs including psychological counselling, EQUIPS (Addiction) (or similar program) and specific sex offender treatment program(s).
31. DHANJI J: I agree with Lonergan J.

Amendments 26 July 2022 - Para 6, line 2, added closed bracket after the word NSW). Para 7, amended point (e) to 2. Para 11, bullet point 7, added comma after "2020". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2022