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[2025] ACTSC 167
Supreme Court of the ACT
2025-04-30
Christensen AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Adams Citation: [2025] ACTSC 167 Hearing Date: 5 February 2025 Date of last submission: 26 March 2025 Decision Date: 30 April 2025 Before: Christensen AJ Decision: See [107] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – persistent sexual abuse of a child – aggravated intentional and unlawful choke, rendering unconscious – aggravated assault occasioning actual bodily harm – consideration of features which inform objective seriousness of persistent sexual abuse of child offence – where victim aged between 14 and 15 and offender aged between 33 and 34 years during offending – where victim fell pregnant twice as a result of the offending – where victim vulnerable and exploited by offender – sexual and emotional manipulation – offending extremely serious conduct – current sentencing practice – consideration of authorities from other jurisdictions – offender’s criminal history such that no leniency can be afforded – Bugmy principles enlivened – guarded prospects of rehabilitation – moderate reduction in sentence for guilty plea – period of imprisonment imposed – lengthy period of supervision in community Legislation Cited: Crimes Act 1900 (ACT) ss 24, 27, 56 Crimes (Sentencing) Act 2005 (ACT) ss 33, 34A, 34B, 35 Family Violence Act 2016 (ACT) Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Burr v R [2020] NSWCCA 282 DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Howarth [2024] ACTSC 322 Director of Public Prosecutions v Padreny [2024] ACTCA 4 GP (a pseudonym) v R [2021] NSWCCA 180 Hili v The Queen [2010] HCA 45; 242 CLR 520 JWM v Tasmania [2017] TASCCA 22; 27 Tas R 365 Kourpanidis v The Queen [2022] ACTCA 11 Nolan v R [2024] NSWCCA 140 R v Beesley [2008] QCA 240 R v Cunningham [2008] QCA 289 R v Degioannis [2019] ACTSC 47 R v DM [2019] NSWDC 653 R v Duffy & Ors [2014] ACTCA 53 R v Fisher [2024] NSWCCA 191 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Jones [2019] ACTSC 124 R v KC [2020] ACTSC 94 R v Kellan (a pseudonym) [2021] ACTSC 314 R v Kourpanidis [2021] ACTSC 112 R v Michalopoulos [2020] ACTSC 27 R v Pham [2015] HCA 39; 256 CLR 550 R v SAG [2004] QCA 286 R v Sirl (No 3) [2019] ACTSC 355 R v Sirl (No 4) [2020] ACTSC 23 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Whittaker [2021] ACTSC 189 Sirl v The Queen; The Queen v Sirl [2020] ACTCA 37 The Queen v Omari [2022] ACTCA 4 The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 The Queen v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273 Xerri v The King [2024] HCA 5; 278 CLR 276 Texts Cited: Royal Commission into Institutional Responses to Child Abuse (Final Report, 15 December 2017) Parties: Director of Public Prosecutions Matthew Adams (Offender) Representation: Counsel T Whybrow (DPP) G Le Couteur (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Number: SCC 265 of 2024 CHRISTENSEN AJ:
Introduction
The offender, Matthew Adams, is to be sentenced with respect to sexual and family violence offences committed on a teenage girl. Lengthy periods of imprisonment that ensure adequate punishment that is just and appropriate, denounce the conduct, and recognise the harm done to the victim, are warranted. Protection of the community and deterrence is also of significance, noting, as said by the Court in The Queen v TW [2011] ACTCA 25 at [21], that: [T]he community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.
The offending involves the following: (a) One offence of persistent sexual abuse of a child, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 2024/1192), carrying a maximum penalty of 25 years imprisonment; (b) One offence of aggravated intentional and unlawful choke, rendering insensible, contrary to s 27(3)(a) of the Crimes Act (CAN 2024/1158, carrying a maximum penalty of 13 years imprisonment; (c) One offence of aggravated intentional and unlawful choke, rendering unconscious, contrary to s 27(3)(a) of the Crimes Act (CAN 2023/11116), carrying a maximum penalty of 13 years imprisonment; and (d) Two offences of aggravated assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act (CAN 2024/904, CAN 2023/11119), carrying a maximum penalty of 7 years imprisonment.
The offending
The victim was aged 14 years and nine months at the commencement of the offending period, and aged 15 years and two months by the time the offending ended. The offender was aged from 33 to 34 years of age.
While the victim was still 14 years of age, the victim and the offender met. The victim was on a bus with a friend. She began to talk with the offender and asked him if he knew where she could obtain cannabis. He said that he did and invited the victim back to his residence in Wanniassa.
During this initial interaction, the victim told the offender that she was 14 years old. The offender acknowledged this, jokingly saying “you’re a bit young, come back when you’re 21”. After this, the offender and the victim smoked cannabis together.
The victim remained at the offender’s residence from this date, initially sleeping in the offender’s bed, while he slept in another bedroom. The relationship progressed such that the victim and the offender would spend their days together and formed a friendship.
Persistent sexual abuse of a child
Around 31 July 2023, when the victim was still 14 years of age, the victim and the offender had penile-vaginal sexual intercourse for the first time. Prior to the intercourse, they had a conversation around contraception. The offender encouraged the victim to use contraception, such as the pill or another form. The victim declined, telling the offender that she had allergies to latex and that she could not be bothered to use other contraception.
The victim and the offender then proceeded to engage in penile-vaginal sexual intercourse around three to four times a week. By this time, they had progressed into a “relationship” and referred to each other as their “partner”.
After this first occasion, the victim and the offender discussed the victim’s age and how they should approach it moving forward. The offender told the victim that “it is what it is, it’s already happened, what’s the point of stopping if we’ve already done it so many times”. The offender told the victim that he didn’t care about the sex and that he liked her personality and spending time with her.
On 13 August 2023, the victim began to suspect that she was pregnant. She took a pregnancy test while at the offender’s residence, which returned a positive result. The digital test suggested that the victim was around two to three weeks pregnant. The victim believed that it was the offender’s child and told the offender that she was pregnant. He stated that “yeah, it’s probably mine”.
Around 15 August 2023, the victim began experiencing cramps and heavy bleeding. She attended at a medical centre where it was believed she was experiencing a miscarriage. The victim was advised to attend a hospital, which she declined to do. The victim went and stayed with a friend until 20 August 2023.
The victim returned to the offender’s residence on 20 August 2023. A discussion was had between the two in relation to their relationship and they agreed they wanted to be a “couple”, regardless of the age of the victim. th
On the victim’s 15 birthday, the offender took the victim fishing at Tuggeranong Lake and purchased her a fishing rod. Throughout the course of the relationship, the offender gave the victim sentimental items and gifts.
On 8 September 2023, the victim was kicked out of the offender’s residence by his stepson. The victim returned to her parent’s residence, where she stayed for a few weeks. During this time at her parent’s house, the victim was menstruating.
Around 25 September 2023, the victim returned to the offender’s residence, and they engaged in unprotected penile-vaginal sexual intercourse. The victim had told her mother that she was going to meet a friend at Kingpin.
Context information
When the victim did not return, around 3 October 2023, the victim’s mother reported the victim as a missing person. Between 3 and 17 October 2023, the victim was in contact at various times with her mother through text messages. Around 17 October, she stopped communicating with her mother entirely and ceased her social media presence. As a result, she was again reported as missing.
On an unknown date between 27 and 31 October 2023, the victim and the offender were walking back to his residence from Erindale in the early hours of the morning. A verbal argument between the two occurred, and they were pushing and shoving each other.
Aggravated assault occasioning actual bodily harm
Aggravated choke – render insensible
The victim went and sat on the lounge during this incident. The offender came up behind her and put his arm across her face and her mouth. The victim bit the offender’s arm. The offender re-adjusted his grip, moving his arm down to her neck and tightened it, causing pressure on the victim’s neck. The victim hit him in the head, and he released her.
The offender went to have a shower. Whilst in the shower, the victim kicked the door with significant force and made attempts to hit the offender out of anger for what he had done earlier.
The offender got out of the shower and approached the victim who was standing near the bedroom door. He kicked her and she fell to the ground. The offender put his arm around her neck from behind, while the victim was still on the ground, and squeezed with significant force for three to five seconds. The victim’s vision went grey, and her eyes rolled to the back of her head. She lost consciousness. When she regained consciousness, she was lying in the offender’s lap on the ground. The offender stated words to the effect of, “wow, I’m so sorry, I could have killed you”.
Persistent sexual abuse of a child continued
During October, the victim did not have her period and became concerned that she was pregnant.
On 1 November 2023, a media release with the victim’s photograph was posted to social media platforms, detailing her a missing person. This included details as to her age. As a result of the media release, friends of the offender contacted him with concerns about why he was permitting a 15 year old to reside with him.
Context information continued
Aggravated assault occasioning actual bodily harm
The offender grabbed the victim by her pointer finger on her right hand and twisted it hard. The victim elbowed the offender in order to get free from him. As a result of the grab, the victim’s finger doubled in size, and she thought that it was broken. She did not seek medical attention for her finger, and it is not known what the actual injury was to her finger.
The offender also kicked the victim during this incident, causing bruising to her left shin.
Aggravated choke – render unconscious
The victim and the offender crossed over Athlon Drive where the offender continued to make attempts to grab the victim. The victim pulled out a bottle opener tool that had a knife attachment and stabbed the offender in the hand. The two began struggling with each other and fell to the ground. The offender got up off the ground and stood behind the victim while she was still on the ground. He put his arm around her neck and squeezed hard, lifting her up off the ground. The victim “greyed out”. When the offender let go of her, the victim was wheezing.
The victim and the offender continued to his residence. The offender told the victim to “fuck off” and that she should go to the police station in response to the missing person’s media release. The victim returned to her mother’s residence later that day.
On her return, it was observed that the victim had bruising on her body. The victim disclosed the offending to her mother.
Police were called and attended the victim’s residence. The victim disclosed the offences of physical violence to police, which was captured on a body worn camera. The victim showed police cuts to her legs which were from the offender smashing bongs into a mirror and the mirror shattering, and bruises to her legs. She had the second and third digit on her right hand taped together, which was a result of the offender grabbing her finger.
Persistent sexual abuse continued
On 4 November 2023, the victim’s mother purchased her a pregnancy test. The result confirmed that the victim was pregnant and that she was between 3 to 5 weeks gestation. The victim did another pregnancy test on 6 November which said 3+ weeks pregnant. The victim told her mother that the child was the offender’s, and this was the second time that she had been pregnant to him.
On 8 November, the victim began speaking positively about the offender and wanted her parents to speak with him. On 9 November, the victim left her residence. She would not disclose her whereabouts to her mother and, as a result, the victim’s mother reported her missing.
The victim returned to the offender’s residence on 9 November. She gave the offender the pregnancy test that she had done on 6 November and stated, “here you go, I got you something”. They had a discussion about the victim being pregnant. The offender stated that he could go to jail. The offender gave the victim a note he had written her in his black diary.
Child and Youth Protection Services (CYPS) attended the offender’s residence on 9 November 2023. They located the victim at the address, however, the offender was not there. One of the other males who resided at the premises confirmed that the address belonged to the offender. The victim told CYPS that she was fine and then left the residence.
On 10 November 2023, the victim presented to the Tuggeranong police station in the early hours of the morning. She left the police station after this. Her wellbeing was communicated to her mother.
On 11 November 2023, the victim’s mother contacted police and disclosed to them that the victim was in a sexual relationship with the offender and that she was pregnant. The victim was aged 15 years at this time.
The victim subsequently participated in evidence in chief interviews with police.
On 13 December 2023 the victim had a surgical abortion. The product of conception passed by the victim was seized by police. Forensic testing on the product of conception confirmed that the offender could not be excluded as the biological father.
Arrest of the offender
On 11 November 2023, police attended the offender’s residence at 3:50pm. He was located in the greenbelt of the residence and was arrested. He was cautioned by police. Prior to being taken to the watch house, the offender told police the following: - He met the victim a few days ago when he saw her and a young boy in Tuggeranong “shooting up”; - He offered them help and gave them a lift to his house; - He called the young boy’s mother and CYPS; - The victim had been coming over and has slept in his bed once; - He was fully clothed and drunk and didn’t invite her to do that; - He broke his bedroom mirror about two and a half weeks ago; - He abuses her by yelling and screaming at her to leave his house, but had never assaulted her in other ways; - He has never had sexual intercourse with her; and - He did not know that she was pregnant.
The offender was arrested and charged.
Effect on the victim
The offending will inevitably have had significant impacts on the victim, being as she was subjected to sexual and physical violence at a young age. This impact is explained by the mother of the victim in a victim impact statement. She describes there having been a significant impact on her daughter’s mental and physical health. This extends to the impact of a termination of a pregnancy as an adolescent, which the victim’s mother describes as not having been easy for her daughter, and that the victim is “psychologically scarred” from this.
The victim’s mother describes the particular vulnerability of her daughter due to her autism. The victim gravitates towards older people and approaches strangers, being on this occasion the offender. The victim has had to learn a hard lesson to be more guarded and less trustworthy of people.
The victim’s mother describes that it was very confronting to see her daughter come home with bruises and injuries all over her body weeks after reporting her missing. She describes the sadness when the victim still tried to return to the offender’s house, and the strain this caused to her own relationship with the victim. The victim held a belief the offender had done nothing wrong, and for months she would mimic the offender’s interests and drew copies of his tattoos on herself. She now though understands why the offender was reported to the police, and her mother describes her as starting to move on with her life.
Nature and circumstances of the offending Persistent sexual abuse of a child
It is necessary to begin the assessment of the offence of persistent sexual abuse of a child with consideration of the features which inform the assessment of the objective seriousness of this type of offending. In The Queen v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273 (The Queen v Ware) at [95], the Court of Appeal declined to provide an authoritative statement of principle as to the facts a sentencing judge ought to take into account for a s 56 offence when considering objective criminality.
Nonetheless, it can be drawn from that authority (at [96]), and other authorities that have considered this provision (see in particular, R v Kellan (a pseudonym) [2021] ACTSC 314; R v Whittaker [2021] ACTSC 189; R v KC [2020] ACTSC 94; Nolan v R [2024] NSWCCA 140; GP (a pseudonym) v R [2021] NSWCCA 180, Burr v R [2020] NSWCCA 282; R v SAG [2004] QCA 286 (R v SAG)) that the following non-exhaustive considerations inform the assessment of an offence contrary to s 56 of the Crimes Act: (a) The duration of the relationship; (b) The nature of the relationship between the victim and the offender; (c) The age of the victim and the age disparity to the offender; (d) The frequency of the sexual activity; (e) The nature of the sexual contact, including whether there was penetration of any type, ejaculation, or inherent degradation, or humiliation; (f) Any risk of pregnancy or sexually transmitted disease, or resulting pregnancy or disease; (g) The power dynamic between the victim and the offender, including the vulnerability of the victim, any breach of trust, position or authority, exploitation, or dominance; (h) The presence or otherwise of coercive conduct such as threats or physical violence, emotional manipulation, persuasion, or illicit drug involvement; (i) Where the offending occurred; (j) The purpose of the conduct; (k) The circumstances in which the relationship engaged in came to an end; and (l) The nature and extent of the sequalae of the offending on the victim.
In so considering, it must be recalled, as observed by the Court of Appeal in The Queen v Ware, what was said by Brett J in JWM v Tasmania [2017] TASCCA 22; 27 Tas R 365 at [132] that: the variation and multiplicity of factors, conduct and frequency of conduct which may fall within the crime of maintaining a sexual relationship, result in this crime not being amenable to standardisation. Some assistance can be obtained from a consideration of cases involving multiple indecent assaults committed in a context of ongoing offending. However, it is necessary to exercise caution in comparing this case to any other particular case, given the multiplicity and diversity of factors which may be at play in respect of each particular case.
Further, as submitted by the prosecution, what was observed by the New South Wales Court of Criminal Appeal in R v Fisher [2024] NSWCCA 191 is of relevance. That is, the Court there appeared to endorse a Crown submission that the equivalent provision in that jurisdiction “focuses attention in the sentencing exercise upon the maintenance of the unlawful sexual relationship as the centrepiece of the offence, being a relationship perpetuated in a state of corruption by the commission of unlawful sexual acts against the child …” (at [82]).
Family violence offences
The physically violent offences occurred during the course of the persistent sexual abuse of the child, but they are separately charged. A level of concurrency is appropriate to reflect this, although it is clear that the physical violence offences are particularised distinctly to the persistent sexual abuse offence such that the concurrency to be applied is limited between the sexual and physical violence offences. The physical violence offences were though four acts committed within two distinct incidents, warranting substantial concurrency with respect to each incident.
In and of themselves, the physical violence offences are serious. They were committed on a child, during the course of relatively protracted arguments. They were, as the prosecution submitted, indicative of the offender using violence to subdue the victim during times of conflict.
Fortunately, the injuries caused in the assault offences were not the most serious examples of injuries that are caused by such offending. But, in the first incident, an implement was used, and glass was thrown towards the face of the victim. Cuts that she sustained to her legs were still visible some days later. The second incident caused injury to two areas of the body, and physical pain will likely have resulted for an extended period.
The choking offences are both examples of this offence where unconsciousness was rendered, and were both committed while the victim was particularly vulnerable as she was on the ground. The first incident is a ‘rolled up’ charge, reflecting that there were two occasions of pressure applied to the victim’s neck, increasing the seriousness. In the first act the offender applied pressure while positioned behind the victim and only ceased when the victim responded in such a way that caused the offender to release her. The second act occurred after the offender had kicked the victim, releasing her after a loss of consciousness, and he afterwards acknowledged the seriousness of what occurred. With respect to both acts, the duration of the acts, and the duration of the loss of consciousness, is not known.
The second incident occurred at a time when the victim thought she may have been pregnant, although it is not established that this was known to the offender. The force used in this act of choking involved the victim being lifted from the ground. It resulted in the victim ‘wheezing’. This second incident occurred in a public location, indicative of the offender having a brazen willingness to subject the victim to violence.
The other choking offence occurred in the offender’s home, a place where the victim was entitled to feel safe: s 34B Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). All of the physical violence offending was, as already observed, offending on a child, with it noteworthy that the preamble to the Family Violence Act 2016 (ACT) provides that “children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their current and future physical, psychological and emotional wellbeing”.
Current sentencing practice Persistent sexual abuse of a child
The Sentencing Act provides that the Court is to have regard to “current sentencing practice” in deciding how an offender should be sentenced: s 33(1)(za) Sentencing Act. In sentencing for sexual offences against a child, pursuant to s 34A of the Sentencing Act, the Court must: [S]entence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing.
Neither party initially provided any authorities said to be of relevance to consideration in this regard. It was initially submitted by both parties that there were not authorities of comparative relevance, in terms of the factual circumstances, from the ACT jurisdiction. The parties were asked to consider whether it was appropriate for the Court to have regard to authorities from other jurisdictions, and if so, whether there were any authorities that could be of assistance. Written submissions were provided by both parties in this regard.
In having sought this, it must of course be first recognised that authorities said to be comparative, from the ACT or elsewhere, of course have limitations: DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428; R v Pham [2015] HCA 39; 256 CLR 550 at [28]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [18], [53]-[54].
Reliance on authorities of other jurisdictions
It is not without precedent that sentencing determinations in this jurisdiction have had regard to sentencing outcomes in other jurisdictions. For example, the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 is routinely considered with respect to offences of robbery. In The Queen v Ware, the Court of Appeal seemingly did not have a concern that sentences from other jurisdictions were sought to be relied upon, but did not find them helpful in “discerning any sentencing pattern or practice” (at [98]).
Both parties accepted that the Court could have regard to authorities from other jurisdictions, to the extent they can be of assistance, with reliance by the offender on what was said by Elkaim J R v Kourpanidis [2021] ACTSC 112 at [47]: As to the issue of whether authorities from outside the ACT may be considered, I can see no reason why that should not be the case, provided of course that primary consideration is given to the facts of the case, the specifics of the ACT law (including maximum penalties) and any relevant authorities in this court.
On appeal, the Court of Appeal in Kourpanidis v The Queen [2022] ACTCA 11 observed what was said in R v Duffy & Ors [2014] ACTCA 53 at [92] that: Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, 'unifying principles' may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: Hili. Nevertheless, current sentencing patterns can provide some evidence of the usual sentencing range and may provide some support for an argument that the sentence under appeal fell outside the available sentencing range.
Care must of course be taken in referring to authorities from other jurisdictions, with it submitted on behalf of the offender that what was said by the Court of Appeal in The Queen v Omari [2022] ACTCA 4 at [57] is of assistance: Although consideration of sentences imposed in comparable cases may be useful, care must be taken with respect to the range revealed by the cases referred to, noting that current patterns of sentencing do not cap the upper and lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [83]; and Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. Further, care must be taken to consider whether cases referred to are truly comparable, given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26].
I acknowledge this. I also emphasise that due weight must be given to the sentencing jurisprudence, legislation, and practice in the ACT jurisdiction in sentencing in the ACT, including s 34A of the Sentencing Act. These factors are of course fundamental to the sentencing exercise, as is individualised justice. But it seems to me that sentencing authorities for a persistent sexual abuse of a child offence in other jurisdictions are capable of relevance, with due regard to the differences in applicable maximum penalties and sentencing principles, to the extent that comparative authorities ever can be.
Comparable Authorities
With all of that in mind – that is, the limitations of comparative authorities and the need to be cognisant of the differences in maximum penalties and sentencing legislation and principles – the following authorities are to be considered.
The prosecution referred the Court to R v Beesley [2008] QCA 240 (R v Beesley), submitting that it is the most similar to the index offending, noting however a significantly greater age disparity. The offending in that matter involved a 51 to 52 year old offender engaging in the maintenance of a sexual relationship with a 14 to 15 year old child over an eight month period. The victim was known to the offender through a school friend, and she stayed with the offender in his caravan. The offending involved sexual intercourse and alcohol use. The offender had no criminal history and had suffered a head injury limiting the prospects of reoffending. There were distinct and separate charges for some sexual offending. The equivalent s 56 Crimes Act offence involved an act of intercourse after consumption of alcohol, with a separate charge for a further act of intercourse. A period of four years imprisonment, suspended after 12 months was imposed with respect to the s 56 equivalent offence. The maximum penalty that applied was life imprisonment. While it was accepted on behalf of the offender that this authority is “largely comparable”, other than the maximum penalty and the age disparity, I consider it significantly distinguishable. This is both with respect to the applicable maximum penalty, the limited frequency of sexual activity, and the subjective circumstances of the offender.
On behalf of the offender – in a submission reflective of a lawyer exhibiting the integrity asked of practitioners in fulfilling their duty to the Court – the Court’s attention was drawn to R v DM [2019] NSWDC 653. The offender the subject of sentence there was aged 37 to 38 years and was the stepfather of the victim. The victim was aged 14 years at the time of the offending. After consuming cannabis, the offender first had intercourse with the victim, and this continued for a period of some four months, being “multiple other times” that intercourse was engaged in (at [7]). The victim came to be living solely with the offender and the sexual intercourse continued. The victim came to run away. When found, it was confirmed that she was pregnant, and the pregnancy was terminated. The offender had a long history of substance abuse and had a criminal history, but no previous sexual offences. There was limited insight into the offending behaviour. The representative on behalf of the offender accepted, appropriately, that this authority is largely analogous to the index offending, although submitted that the distinguishing features of the familial relationship and that the offending led to the victim running away are such that it is more serious.
The offence the subject of the sentencing exercise was the equivalent provision in New South Wales (NSW), carrying a maximum penalty of 25 years at the time. There was no applicable standard non-parole period. I accept the submission made that this was a more serious example of the offending, being that there is the distinguishing feature that a schedule offence of possession of child abuse material was to be taken into account and the significant breach of trust involved. It is though of comparative assistance. Buscombe DCJ observed that “[t]he fact the offender failed to use a condom on each occasion he had penile-vaginal intercourse with the victim, causing her pregnancy, increases the objective seriousness of this offence in my view” (at [17]). A sentence of 8 years and 6 months, after the discount of 15 per cent, was imposed, being a sentence with a starting point of 10 years imprisonment.
Family violence offences
No authorities were relied upon by either party as to current sentencing practice with respect to the family violence offences. To the extent it can be of assistance, I have had regard to the authorities of Director of Public Prosecutions v Padreny [2024] ACTCA 4 and DPP v Howarth [2024] ACTSC 322, noting that in both of those authorities, the victims were not an adolescent and the relationship between the parties was different.
It must also be borne in mind that these offences carry a significant maximum penalty of 13 years imprisonment. The assault occasioning bodily harm offences carry a maximum penalty of 7 years imprisonment. These maximum penalties reflect the aggravating circumstance of the offending involving family violence.
Subjective circumstances
The offender is now 35 years of age. His subjective circumstances are set out in a pre-sentence report dated 23 January 2025. The prosecution cautioned the weight to be applied to the contents of the report, noting that it is based exclusively on self-reporting. I accept this, but it remains that it is the only information available to the Court to understand the offender’s background and any explanation for the offending: s 33(1)(m), (v) Crimes (Sentencing) Act 2005 (ACT).
The offender reports [redacted]. He is estranged from his biological parents, but has contact with two siblings.
[Redacted].
The pre-sentence report finds that the offender appears to have had a difficult upbringing in his formative years, [redacted] and general instability. As I understood the submissions, on behalf of the offender it was submitted that the Bugmy principles are enlivened. The prosecution did not submit against such a finding, beyond the caution expressed as to the weight to be applied to the pre-sentence report. There is limited information as to the offender’s background, but sufficient information to satisfy me that the principles from Bugmy are enlivened. The offender’s childhood circumstances also informed his subsequent substance misuse. The offender’s moral culpability is to be moderated.
The offender left the formal education system at the completion of year 10, and gained employment in a concrete factory. He often travelled to follow work in his younger years. He has certificates in construction, horticulture, rural operations, and machinery operations. The pre-sentence report assesses the offender as suitable for a community service work condition, but the appropriate sentence is such that no such order condition is available.
The offender later came to be living in the ACT where he has had a Housing ACT property. This is no longer available to him. He had maintained employment for several years with a labour hire company. He reports that his friends and associates are pro social, and in the past he has enjoyed fishing and archery.
The offender has had two significant intimate partner relationships. He has two sons from the first relationship, but has not had contact with them for some time. His second long term partner, a fiancé of five years, passed away suddenly some 18 months ago due to complications from diabetes. He maintained the care of her three children for a time until he found he was overcome with grief and not coping. He sent the children to reside with their grandmother.
It was that circumstance of grief that the offender attributes as the explanation for his offending. The offender describes that he fell into a deep depression, consuming large quantities of alcohol and methamphetamine use. He lost his employment. He was unable to be sober and used substances to numb his pain. He had never felt “so isolated and lonely”.
Remorse and insight
The offender’s responses in the record of interview demonstrate a concerning lack of remorse and insight immediately after the offending. Similarly, some of the information provided to the authors of the pre-sentence report are of concern. The offender is reported to have informed the report writers that he thought the victim was older than she was and that “he was very lonely at the time”.
Nonetheless, the pre-sentence report provides that the offender “accepted responsibility for his actions and was able to articulate appropriate victim empathy. He acknowledged his behaviour may have lasting implications for the victim regarding trust issues in future relationships and fear of men”. The offender is reported to have reflected on his behaviour and recognised that there were numerous things he could have managed differently to learn healthy coping strategies. The pre-sentence report provides that the offender describes feeling “very disappointed in his behaviour”.
There is additionally the pleas of guilty, although as the prosecution submitted, in light of the forensic evidence, this may be seen as a recognition of the inevitable, at least in respect of the sexual offending.
I accept, as submitted on the offender’s behalf, that there is progress towards remorse and insight and will take this into account in considering the prospects of rehabilitation and the setting of the nonparole period.
Criminal history
The offender has a criminal history from the ACT, New South Wales (NSW), and Queensland such that no leniency can be afforded to him.
His criminal history in the ACT is limited, relating to minor driving offences. But, in NSW, the offender was convicted in 2017 of an offence of destroy/damage property committed in a circumstance of domestic violence. A good behaviour bond was imposed, but this was subsequently revoked due to noncompliance. He was resentenced to a suspended sentence for a period of 12 months. It follows that this is not the offender’s first occasion of family violence offending, and deterrence is elevated. This is also so because of his criminal history in Queensland, with previous convictions for robbery and assault in 2008 and 2009. The details of that offending were not able to be ascertained, but the convictions themselves highlight the role of specific deterrence with respect to violent offending in the sentencing exercise.
The criminal history also evidences concerns as to the prospect of compliance with court orders. The offender has previous convictions for breaches of bail, failing to appear, and breaches of community based orders.
Pleas of guilty
The offender entered pleas of guilty in the Magistrates Court. This was after negotiations occurred as to the applicable charges, resulting in ‘rolled up’ charges. The information as to the circumstances of the pleas of guilty as provided by the prosecution included that the offender did not engage in negotiations until the preliminary results of the forensic testing on the product of conception were obtained and they returned a positive result to the offender.
On behalf of the offender, it was submitted that there was a delay in the entry of the pleas of guilty in circumstances where there was a delay in the time for disclosure of the relevant evidence. It was submitted that there was significant utilitarian value in the pleas of guilty being entered noting the particular vulnerabilities of the victim. It was submitted that a reduction for the pleas of guilty is still available and appropriate in this matter.
In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [77], the Court of Appeal said that the respondent there was “entitled to the benefit of being sentenced on the negotiated charges, but there was no additional entitlement to a s 35 [of the Sentencing Act] discount on the basis that the pleas of guilty were entered at the earliest reasonable opportunity”.
In the circumstances of this matter, I consider a reduction in the order of 15 per cent is appropriate, noting that s 35(6) provides that a lesser penalty imposed under the section must not be unreasonably disproportionate to the nature and circumstances of the offence.
Presentence custody
Consideration
The offending involved the sexual and emotional manipulation of a vulnerable teenage girl who was exploited by the offender. It was extremely serious conduct that will likely cause lifelong impacts for the victim. Plainly, only terms of imprisonment are warranted.
To the extent there is mitigation in the sentence, being the application of the Bugmy principles, this does not erase moral culpability here, it is only capable of moderating the sentence. The offender has been broken by the childhood he experienced, and unfortunately the extent to which he has been broken resulted in him causing grave harm to another vulnerable person. The way in which he did this means that promotion of community protection is of significance in the sentencing exercise.
Nonetheless, there is progress towards remorse and insight, and guarded prospects of rehabilitation. To give effect to this, I consider it appropriate to slightly moderate the nonparole period. I do so conscious of the offender’s poor history of compliance with community based orders, and for this reason, the extent to which there can be any leniency in the nonparole period is moderated. This will enable a lengthy period in the community with supervision, while also reflecting the need to avoid a crushing sentence in the totality of the sentences to be imposed.
I do not propose to make any recommendations for the parole period, as invited, as it is difficult to predict what criminogenic risks will be most in need of support by the time the offender comes to be released from custody.
Orders
I certify that the preceding one-hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 12 June 2025
DPP
Adams [2025] ACTSC 167
The prosecution also drew the Court’s attention to what was found by the Royal Commission into Institutional Responses to Child Abuse as to the common stages in the grooming process, highlighting those that are relevant to the present matter, being: (a) Befriending a child, becoming familiar with their interests and being helpful in order to gain their confidence and trust; (b) Creating a special or exclusive relationship with the child by bestowing gifts, privileges, affection and rewards, and sharing secrets. The exclusivity of the relationship isolates the child from their parents or others who would be a source of safety; and (c) Paying increased attention to the child, including adopting a pseudo-parental role.
With reference to these features in the offending here, the prosecution submitted that there was an insidious nature to the offending. I agree.
The relationship, as charged, was in total for a duration of five and a half months, however, the victim was not living with the offender for that entire period. Acts of intercourse commenced one month into the relationship period, and occurred three to four times a week in August through to almost mid-September. The facts provide that another act of intercourse occurred after that time.
The prosecution submitted that after the victim turned 15, the offending again involved penile-vaginal intercourse at a frequency of around three to four times a week, for a four to five week period. The prosecution submitted that, on a conservative estimate, penile-vaginal intercourse occurred at least 30 times, the majority occurring when the victim was 14 years of age. I do not accept this submission in circumstances where the agreed facts as to sexual activity after the victim turned 15 years of age, provide no more than “around 25 September 2023, the [victim] returned to the offender’s residence, and they engaged in unprotected penile-vaginal sexual intercourse. The [victim] had told her mother that she was going to meet a friend at Kingpin”. No further information is provided in the facts as to sexual activity after this time, other than with respect to the identification of pregnancy. Nonetheless, the amount of sexual activity that the facts do specify did occur, which I accept was primarily when the victim was aged 14 years, was a not insignificant amount, being in the range of 12 to 20 times.
The sexual activity is not described as being of a violent nature, beyond the inherent violence in such an offence, but it was done with the blatant risk of sexual disease transmission and pregnancy. There was a reckless disregard for this risk, with a result that the victim was impregnated on two occasions, resulting in the victim having to experience a miscarriage and a termination of a pregnancy at a young age.
The victim was in a vulnerable position, and she was exploited by the offender. She was taken into his home, a place where she seemingly sought refuge and safety but was not afforded this. He created a dynamic of trust which he abused. There was engagement in substance use, at least when they first met, with it not clear on the facts whether that continued. It is not clear whether the offender was aware of the victim being autistic, but he was well aware of her age, being an age that resulted in a significant age disparity of 19 years. Both parties did submit that the offender was aware of the victim having an unstable upbringing, however the basis for this is not established in the agreed facts. It is established that the offender knew the victim was at an age that was too young to be living independently, and that she was reported missing. It is also established that the offender knowingly made the decision to continue the sexual relationship, despite being well aware of its impropriety. The exact circumstances as to what led to the end of the relationship are not clear from the facts, but it does not appear consistent with it being the offender’s own doing.
The offender was also well aware towards the end of the relationship that the victim was reported as missing. The offender’s moral culpability increases in its severity as the unlawful relationship progresses, in circumstances where the victim had been reported missing, and from when a member of his family and his friends sought to intervene. The victim had also experienced the first pregnancy. Despite this, the offender continued the engagement, including with unprotected intercourse. He engaged throughout with a level of emotional manipulation in terms of items and gifts given to the victim. The offender exhibited a callous disregard for the wellbeing of the victim, exhibiting a selfish use of her for sexual and emotional engagement.
This appears to me to be of particular import for this particular offence provision, reflecting as it does a response to a recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse that jurisdictions across Australia have introduced to give effect to that recommendation: Xerri v The King [2024] HCA 5; 278 CLR 276. It would seem to be a perverse outcome if the sentencing outcome did not take into account current sentencing practice or patterns beyond the borders of the ACT, to the extent it can be ascertained. That is, the ACT community are entitled to expect that the sentence to be imposed will, to the extent it can, reflect consistency in the application of relevant legal principles irrespective of whether the offending occurred in the ACT, Queanbeyan, Hobart, or Broome.
In the further submissions, both parties also identified authorities from the ACT that were capable of some relevance, again noting the limitations. These authorities included: (a) R v Sirl (No 4) [2020] ACTSC 23 (R v Sirl (No 4), in which the 47 year old offender engaged in frequent sexual intercourse without a condom with a 14 year old victim in a context of substance use. The offending occurred over a five to six week period and included the use of sex toys. There was a significant age disparity and a significant vulnerability of the victim. The offence was contrary to s 56 of the Crimes Act, carrying a maximum penalty of 25 years imprisonment and the sentence followed a plea of guilty. The starting point for the sentence was six years imprisonment. The Court of Appeal found that the sentence was “into an appropriate range”: Sirl v The Queen; The Queen v Sirl [2020] ACTCA 37 (Sirl v The Queen; The Queen v Sirl) at [244]. (b) R v Sirl (No 3) [2019] ACTSC 355 (R v Sirl (No 3)), in which the offender was sentenced after a trial for an offence contrary to s 56 of the Crimes Act, with a maximum penalty of 25 years imprisonment. On two occasions the 48 year old offender engaged in sexual intercourse with a 15 year old girl who was in foster care. A significantly distinguishing feature is again the age of the offender, and that the intercourse was in exchange for methylamphetamine. The offender was serving sentences for other sexual offences. The offending was aggravated by the absence of a condom. A sentence of five years imprisonment was imposed. The Crown did not complain as to the sentence imposed on appeal: Sirl v The Queen; The Queen v Sirl at [232]. (c) R v Jones [2019] ACTSC 124 (R v Jones), in which a 25 year old offender engaged in a five month unlawful relationship with the 15 year old vulnerable victim. There were “frequent” (at [12]) acts of sexual intercourse, and the victim became pregnant. There was frequent drug use. The offender was sentenced after an early plea of guilty with respect to the s 56 Crimes Act offence, as well as offences of assault and an offence of attempting to pervert the course of justice. The offender had made admissions to the sexual offending. It was observed that “the fact that the relationship [led] to pregnancy is a very serious matter, aggravating the objective seriousness of the offence” (at [34]). The starting point for the s 56 offence was four and a half years imprisonment. (d) R v Degioannis [2019] ACTSC 47 (R v Degioannis) involved an offender who was aged 39 years at the time of sentence, who pleaded guilty to a s 56 Crimes Act offence, and related child exploitation offences. The victim was 15 years of age and was vulnerable. There were multiple acts of intercourse in a three month period, provision of illicit substances proximate to sexual acts, and “brutality” in the offending (at [12]). The offender had an extensive criminal history, including a sexual offence and the Bugmy principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy)) was enlivened. A starting point of 9 years imprisonment was indicated with respect to the s 56 offence.
The authority of R v Jones provides the most comparative relevance to the offending that occurred here. On behalf of the offender, it was submitted that there were more serious aspects to the offending in that matter, those being that images were taken and there were threats made as to termination of the pregnancy. I accept this, but I do not accept that it is, overall, a more serious example. The offender in R v Jones was younger, he had made early admissions to the offending, and the victim was not residing with him under his direct care during the offending period.
The authorities of R v Sirl (No 4), R v Sirl (No 3) and R v Degioannis involve aspects of similarity, but also aspects of being more serious than the index offending given the extent of exploitation involved. The distinctions in those authorities limits their comparative assistance.
The prosecution additionally referred the Court to R v SAG (relevant as noted above at [44] as to the features that inform the objective seriousness), R v Cunningham [2008] QCA 289, and R v Beesley. I have not found these of assistance with respect to current sentencing practice, or patterns, noting, as the parties did, the distinguishing features that arise.
I further observe, in addition to the authorities identified by the parties, that the authority of R v Michalopoulos [2020] ACTSC 27 provides some comparative assistance. In that matter, the offender was 44 years of age, and befriended the 15 year old victim who lived with him. The unlawful relationship period was for five months, during which in a period of some six weeks they engaged in sexual intercourse every few days. They considered themselves a couple. There was initial denial of the offending, with the offending occurring contrary to a family violence order and sexual acts occurring at hotels after police intervention. With respect to the charge contrary to s 56 of the Crimes Act, carrying a maximum penalty of 25 years imprisonment, the starting point was six years imprisonment. Comparative to the index offending, the deception and defiance of a court order involved increases the seriousness of that offending, but no pregnancy resulted.
The offender reports that he last used substances on the day of his arrest. He has completed the SMART and the ADAPT programs while in custody. He will be able to access more intensive programs once sentenced, and has intentions to engage in counselling as to grief and loss once in the community.
The pre-sentence report assesses the offender as a medium risk of general reoffending and an above average risk of sexual reoffending. If he addresses his criminogenic risks, his risk of reoffending will likely reduce over time.