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1. The offender Samuel John Doughty is to be sentenced for a number of offences that include serious examples of sexual offending against young people committed between 2015 and 2021. The community expects sexual offences perpetrated against young people to be treated with real seriousness consistent with the significant maximum penalties that apply. The offending in this matter was predatory in nature and reveals casual disregard for the age and wellbeing of the victims. It is well accepted that sexual offending is inherently violent. It is offending that violates a victim’s right to bodily autonomy, the effects of which, as in this matter, can be intense and long lasting.

Charges

2. The offender is to be sentenced for the following offences: (i) CC2022/11997: Sexual intercourse with a young person contrary to s 55(3) of the Crimes Act 1900 (ACT) (the Crimes Act), which carries a maximum penalty of 14 years imprisonment (AE). (ii) CC2022/9977: Sexual intercourse with a young person contrary to s 55(3) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment (MB). (iii) CC2022/9978: Sexual intercourse with a young person contrary to s 55(3) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment (SP). (iv) CC2022/6522: Act of indecency with a young person contrary to s 61(3) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (CF). (v) CC2022/6525: Sexual intercourse with a young person contrary to s 55(3) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment (WS). (vi) CC2022/6527: Failure to comply with a Section 3LA order contrary to s 3LA(5) of the Crimes Act 1914 (Cth) (the Crimes Act 1914), which carries a maximum penalty of 5 years imprisonment. Facts

(i) CC2022/11997, sexual intercourse with a young person – AE Lead up to the offending

3. In 2016 the victim, AE, lived in [redacted] with her mother, three of her siblings and the girlfriend of one of her brothers. She was either 12 or 13 at the time. On one Friday or Saturday evening in 2016, the victim’s older sister and her friend made plans to go to a party. The victim’s mother told them to take the victim with them. The victim’s sister and her sister’s friend helped her get ready for the party by doing her hair and makeup. Her sister’s friend arranged for the offender to drive the three of them to the party. He was either 18 or 19 years of age at the time. He picked them up from the family home in a blue Commodore. He was intoxicated.

4. While they were in the car driving to the party, her sister’s friend offered alcohol to the victim. She refused, saying she was 13. The offender and her sister’s friend said words to the effect of “come on, just do it” and “you’re no fun”. They arrived at the party where there were about ten people present. Either the offender or another attendee gave the victim a Corona beer and she had two to three sips. After two hours, the victim’s older sister and her friend left the party in a taxi. The victim’s mother had given her $10 in cash for food and she asked the offender if he would drive her home for $10. He agreed.

5. The victim got into the offender’s car, and he drove to a car park near the oval in Isabella Plains. At the car park, the victim repeatedly told the offender she wanted to go home.

The offending

6. The offender attempted to kiss the victim. She said, “don’t touch me, no, no”. He asked her to sleep with him for driving her and she replied, “no, I don’t want to do that”.

7. The offender got out of the car, locked it, then came to the passenger side door and unlocked it with the car key. He opened the door and reclined the front passenger seat. The victim said, “what the fuck are you doing” and said she wanted to go home. The offender put his hand over her mouth, pulled his pants down and took her underwear off. He got on top of the victim and put his penis in her vagina. He removed his hand from her mouth, kissed her on the lips and said, “good girl”.

8. The victim got out of the car, however the offender offered to drive her home, so she returned to the front passenger seat of the car. He drove to an oval in Isabella Plains and told her to walk home from there. (ii) CC2022/9977 sexual intercourse with a young person – MB Lead up to the offending

9. In 2016, the victim, MB, accepted a friend request on Facebook from someone called Samuel Doughty. This was the offender, who was aged either 18 or 19 years old at the time. The victim was about 14 years old at the time, which was displayed on her Facebook profile and there were photos of her in school uniform on her Facebook page. The offender asked via Facebook Messenger if the victim wanted to meet up, get drunk and have sex with him. She declined, deleted the messages and did not talk to him again until a year later.

10. About a year later, they engaged in a short conversation via Facebook Messenger and talked about meeting up. They continued the conversation on Snapchat. The offender’s handle was ‘derpsam2’. Through this conversation, the victim identified the offender was over 18 and she indicated to him she was 15 years old and in year 10 at school. In the th lead up to Saturday the 28 of October 2017, the victim asked the offender to buy alcohol for her and her friend FN, so that they could drink it on Saturday night. He agreed to do so. On that Saturday, the victim and FN caught a bus to a shopping centre in Tuggeranong to meet the offender so he could buy alcohol for them. The offender arrived in a silver sedan. The two girls met him near the Aldi. They had a short conversation and the victim asked the offender to purchase a four pack of Smirnoff Double Blacks. She gave the offender money to do so. They waited in the car while he went into the store. The victim sat in the front seat and FN sat in the back seat. When the offender returned he agreed to drop both girls to the victim’s home. When they arrived, the victim gave the Smirnoff bottles to FN and asked her to put them in the refrigerator inside. The victim remained in the car with the offender while FN went inside. Once inside FN waited for the victim in her room.

The offending

11. While outside the house, the offender asked the victim to perform oral sex on him in exchange for buying the alcohol. She felt pressured into doing so and reluctantly agreed, feeling uncomfortable saying no. The offender drove into a nearby street and both the offender and the victim got into the back seat. The offender pulled his pants down and moved the victim’s head towards his penis. She saw his penis was erect and she asked him to not ejaculate in her mouth. She commenced performing fellatio on the offender. After about a minute, the offender placed his hand on the victim’s vagina outside of her underwear and rubbed in a circular motion with his fingers. He then attempted to place his hand and fingers inside her underwear. She grabbed his hand and pushed it away, sitting upright to attempt to prevent entry. However, the offender persisted. The victim repeatedly said, “No, I don’t want to do that” and “Yeah, the reason I don’t want to do it is because I’m on my period” and “you shouldn’t do that”. She was not menstruating but said this in an attempt to dissuade the offender from trying to digitally penetrate her vagina. He said, “Oh, please, please, come on”. The victim said, “No I’m bleeding”. The offender then grabbed her buttocks and rubbed them up and down. The victim continued pushing his hand away and said, “I’m not about that”. The offender placed his left hand down the back of her underwear and touched her buttocks and anus. She kept saying “no” and grabbed his hand and lifted her body in an attempt to prevent his hand from entering her underwear. The offender then ejaculated without warning into the victim’s mouth. She gagged then swallowed the semen. When she turned around while the offender was doing his pants up. The offender then drove her home. When she came back into the house, FN observed the victim seemed uncomfortable and that some of her makeup around her chin, mouth and nose was removed or flaky. The victim told FN that she had given the offender a blowjob in exchange for purchasing the alcohol.

(iii) CC2022/9978, sexual intercourse with a young person – SP Lead up to the offending

12. In 2019 the victim, SP, aged 14 years old at the time, received a Snapchat friend request from a person with the username ‘samderp3’ (the offender). The victim could not tell whether the offender was someone from school or someone she did not know, and she accepted the request. They commenced having regular conversations on Snapchat, which were casual at first, but which the victim soon found persistent and concerning. The offender asked how old she was and she responded 14. The offender told her he was 17. The victim discovered he had started messaging friends who she had mentioned in their conversation and she subsequently blocked him. The offender then messaged her on Instagram and asked her why she had blocked him. She said she would unblock him on Snapchat but to not message her on Instagram as she used that platform for close friends and family only.

13. They continued their conversation on Snapchat and the offender became more aggressive in his questions and conversation. For example, if the victim did not respond to his messages quickly enough, he would threaten to come to her school or [redacted], which was where she lived and went to school. The offender sent a message saying, “show us your tits” and also sent the victim a photo of herself that he had taken of her in her school’s parking lot. The victim took this as a threat and reluctantly sent a photo of herself wearing a low cut top that showed her cleavage. The victim noticed the offender appeared to have more than one Snapchat account and often changed his name on Instagram.

14. On Friday 29 November 2019, the victim went to school at [redacted] High School. Her mother, AP, was supposed to pick her up when school ended. Before school finished, the victim instead arranged for her mother to pick her up from [redacted] shops after school. She walked from school to the [redacted] shops. At this time, the victim had ‘Snapmaps’ enabled which allowed the offender to see her location. After seeing her location via ‘Snapmaps,’ the offender drove to [redacted] shops. At the shops, he approached the victim and hugged her without warning. She found this awkward; she had only been talking with the offender for a few days at this point. The offender was aged 22 years old at the time. They had a conversation during which the offender became insistent he show her his car which was parked nearby. She eventually agreed and sat in the front passenger seat, the offender sitting in the driver’s seat. They sat in the car for a few minutes and talked, and then the offender locked the doors. The victim asked, “what are you doing”, the offender replied, “we’re going for a drive, it’s going to be fun”. The victim said “no” and that she had to remain at the shops as she had plans. The offender said, in a joking manner, that she could not get out because the doors were locked. The offender started driving. The victim felt uncomfortable, scared and worried about being kidnapped, hurt or killed. She felt that she “froze” a number of times. The offender kept telling her to “chill” and that it would be fine.

15. The victim’s mother, AP, was able to track her daughter’s location from her phone. When she was about to pick the victim up from the [redacted] shops, she noticed her location moving. She called her daughter, who told AP she was in a car with a friend. AP told her she should be at home, and she would come and collect her; however the victim kept hanging the phone up on her which caused AP to become angry. She started driving towards her daughter’s location, which was first driving along the Tuggeranong parkway then stationary on Allchin Circuit in Kambah.

16. The offender pulled over in Allchin Circuit. It was near a reserve area. The victim remembered thinking she had to try and get out of the situation and get home. She tried to open the door again but it was locked. The offender tried to kiss her and again told her to calm down. He said, “let’s go sit in the back”.

The offending

17. The offender climbed over the centre console and the victim followed him. They were both sitting in the back of the car. The victim placed her back against the window. She was worried about what might happen if she did not do as the offender said.

18. The offender grabbed the victim’s legs and yanked them towards him so that she was laying down. Her back and her legs were laying on the back seat. He put his face close to hers and said, “you’re not really going to enjoy this but I will”. The victim thought “oh shit this is actually going to happen to me”. He forcefully kissed her and removed his pants. He then unbuttoned the victim’s jeans and forcefully pulled them and her underwear off, causing a friction burn to the back of her legs. Her shoes also came off. The victim felt frozen and unable to do anything. The offender began to attempt to have sexual intercourse with her. In her head, she tried to move her body but her body stayed frozen. The offender began having penile-vaginal intercourse with the victim and it became rougher as it progressed. The victim closed her eyes and tried to block out what was happening to her. Her bra and top were also removed. The offender flipped the victim onto her stomach and continued having sexual intercourse with her.

19. The victim’s mother arrived at Allchin Circuit. She knocked on the door of a residence but no one answered. She saw a sedan parked near the reserve area and walked to the car. She looked through the rear passenger window and saw a man having sexual intercourse with the victim. She observed the offender’s naked buttocks thrusting into the victim’s groin area. She could see her daughter underneath the offender and saw her blonde hair on the back seat. She slammed her fists on the window, startling both of them. This refocused the victim’s attention and she could hear her mother’s voice screaming. She saw the offender exit the vehicle, then get back into the driver’s seat and try to restart the car. AP pulled the victim from the vehicle and saw she was naked. The offender was in the driver’s seat completely naked. AP tried to retrieve her daughter’s belongings from the car.

20. The offender was attempting to start the vehicle but it kept stalling. AP began throwing the offender’s belongings outside the vehicle and saw a drill kit which had ‘Sam D’ written on it. She went to the passenger side door, opened it, held her fist near the offender’s face and spoke to the offender. She said, “That’s my 14 year old daughter you are having sex with, this is illegal, do you know that she’s 14?”, the offender replied, “Yes I did”. This response shocked AP. She asked how old he was and he said, “I’m 18”. She said, “it’s taking all my strength not to punch you right now”, “that is my child you are having sex with,” and, “that is illegal and you know can be classed as rape?” The offender asked if he could leave now and refused to provide his name when she asked. AP yelled at the victim, “do you have all your things?” The victim recalled picking up her clothes and putting them on. She lost a shoe in the process. She told her mother she was not dressed. AP put the offender’s belongings back in the car, he again asked if he could leave, and she said he could. He drove off. Events following the offending

21. AP and her daughter attended a pharmacy in Phillip to buy emergency contraception. They were advised that a prescription would be needed as the victim was underage. They went to the doctor to obtain it.

22. AP took screenshots of the last conversation between the offender and the victim. She made diary notes of the incident. The victim blocked the offender on all social media.

23. In 2021 the victim received an Instagram message from the offender, some two years after the offending occurred. The following conversation occurred: The offender: Hey The victim: Who’s this? The offender: Sam The victim: Which Sam? The offender: The one that fucked you. The victim: You mean the one you raped?

24. This exchange caused the victim to have a panic attack.

25. After reporting the matter to police, the victim correctly identified the offender in a photoboard.

(iv) CC2022/6522, act of indecency on a young person – CF Lead up to the offending

26. In August 2020, the offender sent the victim, CF, a follow request on Instagram. She was 13 years old at the time. His username was ‘SamsungBro.’ She did not know the offender but accepted the request. They moved to having a conversation on Snapchat. The offender’s username on Snapchat was either ‘DerpSam’ or ‘DerpySam.’ They exchanged photographs and started talking. The victim thought the offender was 15 or 16 years old and therefore felt comfortable talking to him.

27. On 8 August 2020, approximately a week after she had started talking to the offender, the victim went on a bike ride in Conder, ACT. She had a break from cycling and sat on some grass beside the footpath. She received a message from the offender, and they began talking. The offender asked the victim to hang out and she agreed. They arranged to meet near [redacted]. She began to ride towards the high school. She began to think that this was a bad idea but continued riding and arrived at the school car park. She looked around for a boy; she assumed he would either be walking or cycling. She then saw the offender standing next to his car and observed he looked a lot older than she had thought. She estimated he was approximately 25 years old; he was tall and had stubble on his face.

28. Although she felt the situation was dangerous, she went to talk with him. He invited her to sit in the car, but she did not want to get into the car, so she sat on the grass next to her bike.

The offending

29. The offender sat on the victim’s bike and made jokes about stealing it. She saw him place an arm behind himself and heard a screwing noise. He got off the bike and sat next to her on the grass. She tried to move further away from him, and he asked her why she was doing so. He grabbed her left leg with his right hand, then moved this hand to her thigh. He moved closer to her then placed his right arm around her waist, which the victim moved off her. The offender sighed.

30. The offender then placed his right hand on the victim’s thigh, closer to her groin. He moved his hand closer to her vagina and then held his hand on her vagina for about five seconds. The victim felt uncomfortable, asked him “please don’t do that” and pushed his hand off her. She said, “please don’t do that again”. He placed his hand back on her thigh. He then forcefully kissed her on the lips. She was surprised and told him she did not feel comfortable kissing him. He kissed her again on the lips. She moved away and said she needed to go home as her mother was expecting her. He asked to stay longer and repeatedly asked her to get into the back of his car. She declined. The victim pretended she had gotten a message from her mother on her phone and again said she needed to leave as her mother was angry and wanted her home.

31. He asked her to come and stand with him for a couple minutes and gave her a cigarette, also lighting one for himself. She inhaled a bit and started coughing. The offender threw the cigarette on the ground and stomped on it, the victim following suit. She reiterated she needed to get home and walked over to her bike. The offender followed her and asked for a kiss goodbye. He hugged her, placed a hand on her buttock and kissed her on the lips. She again said she needed to go home, and he replied, “okay, let’s hang out again”.

32. The victim got on her bike and started to pedal off. She was starting to tear up at this time. She also noticed that there was something mechanically wrong with her bike and it was difficult to pedal. She rode her bike straight home and told her mother and a friend. (v) CC2022/6525, sexual intercourse with a young person – WS Lead up to the offending

33. On 29 October 2021 the victim, WS, walked from her home to the [redacted] shops, to hang out by herself. She was aged 14 years old at the time. She was wearing her school uniform at the time. While at the shops she received a Snapchat message from the offender. He had the username ‘Johny13637’ but his name was displayed at ‘Sam’. The message asked if she was at the [redacted] shops. She responded “yes, why do you want to know?” The offender said he was at the [redacted] shops. The victim did not reply and ignored further messages as she did not know who the person contacting her was. The victim had ‘Snapmaps’ activated which meant the offender could see her location.

34. As the victim came out of a shop, she heard someone calling her name. It was the offender, and he was standing by his car. She walked over to him. The offender was 24 years old at the time. She had never seen or met him before. He told her to get in the car and they would go for a drive. The victim did not want to get in, but she did not want to offend him or appear rude, so she got in. He told her he was 24 years old and she told him she was 14 years old.

35. The offender drove onto Northbourne Avenue. The victim recalled seeing the ABC Building and the Kamberra Wines Function Centre. They turned left onto Flemington Road, left onto Randwick Road and then right onto a gravel road. There was no one else there. The victim made a location drop on her phone. The offender parked and asked the victim to get into the back seat. He started to touch her, and she said “I don’t want to do it”, but the offender ignored her. He attempted to kiss her on the lips, but she moved away from him.

The offending

36. The offender made the victim lay down on her side and commenced cuddling her from behind. They sat up. The offender pulled her underwear to the side and digitally penetrated her vagina with two fingers, moving in and out. The victim again told him she didn’t want to do anything and asked him to stop. He ignored her.

37. The offender removed his pants and underwear and inserted his penis into the victim’s vagina. He was not wearing a condom. The victim thought he had removed her underwear at that stage. He engaged in penile-vaginal intercourse with her while she looked out the window, waiting for it to stop. She told him to stop but he did not listen to her. She waited for him to finish. She felt pain in her stomach. After two or three minutes he removed his penis and ejaculated onto her jumper and school skirt.

38. The offender drove the victim to McDonald’s in Dickson and bought her a frozen Coke from the drive-through. He offered to drive her home, but she asked him to take her back to [redacted] shops. He did so, and then she began walking home. On the way home, the victim called a friend on a video call and told her what happened. Her friend saw the victim was visibly upset. When she got home, she showered and put her clothes in a laundry basket. She sent a Snapchat message to another friend tell her what happened.

39. Later that day she received a message from the offender saying words to the effect of “it was fun, let’s do it again”. The victim replied and told him how she felt. The offender’s account became inactive.

Events following the offending

40. The victim became aware, after talking to her friends that they were also unexpectedly friends with the offender.

41. The victim later identified who the offender was, including his home address, through an acquaintance of hers. In the school holidays of January 2022, in the company of two male school friends, she attended the offender’s address to confront him. At the address, the offender and his mother came to the door. The victim told the offender’s mother what had happened to her.

42. She noticed that the offender later created a new Snapchat account with the name ‘Derpy Sam Three.’ He contacted her on Instagram and introduced himself, asking her to add him on Snapchat. She declined.

(vi) CC2022/6527, failure to comply with s 3LA order The offending

43. On Wednesday 6 July 2022 police attended the offender’s residence and executed a search warrant under s 3E of the Crimes Act 1914. The offender was given the opportunity to seek legal advice in relation to complying with a s 3LA order. The offender would not provide the passcode to his mobile phone or to other electronic items located in the warrant hence failing to comply with the order. Consequently, police could not access the offender’s mobile phone. The offender was placed under arrest at 11:50am the same day and transported to the ACT Watchhouse.

Victim impact statements

44. A victim impact statement is a statement made by or for a victim of an offence that contains details of any harm suffered by the victim because of the offence: s 47 Crimes (Sentencing) Act 2005 (ACT). These statements provide an important opportunity for victims to participate in the process that contemplates the harm done to them because of an offender’s conduct. As a community, our understanding of the effects of sexual offending has greatly improved such that it is now well accepted that victims can experience a wide range of life changing, and in some cases, life-long physical, emotional and psychological consequences.

45. The victim impact statements in this matter made for difficult reading and powerfully demonstrate the intense and pervasive consequences of sexual offences against young people.

46. The statements individually and collectively provide compelling insight into the extensive ripple effect of the harm caused by the offending. They make plain that the harm not only reverberates around the lives of individual victims, but also reaches into the lives of parents who live with the anguish of knowing what their child has suffered and are required to bear witness to the aftermath. There is palpable sadness in all the statements about the erosion the offending has caused in the victims’ capacity to trust people, further intensifying feelings of isolation and loneliness. It is difficult enough for many teenagers in our community to identify their place in the world. The statements reveal that some of the victims in this matter are doing so with the additional burden of now second-guessing their own judgement about the intentions of people in their lives, because of what the offender did to them.

47. As a result of the conduct of the offender, the young women victims are not experiencing many of their teenage years with the kind of carefree anticipation that should attend to every teenage movement toward adulthood. No outcome the Court imposes can return the victims to the place they were in before the offender committed his crimes. Nonetheless, the Court is greatly assisted to recognise the harm done to victims by the provision of these statements, as they give a direct and authentic voice to the victim survivor experience.

48. The offender raised issue with aspects of the victim impact statement of SP that he said refers to future harm and, in addition, harm not directly referrable to the offending. This was not put as an objection to the inclusion of the matters said to cause issue in the statement, but as matters the Court should place no weight on because they fall outside the scope of a victim impact statement. The offender’s counsel was careful to highlight that he was attempting to adopt “a trauma-informed approach” and in raising the issue did not seek to take away from the importance of victim participation in the sentencing process or challenge the harm said to have been caused.

49. The offender suggested that the provisions governing the content of a victim impact statement necessarily require the harm described to, in fact, exist and therefore cannot include speculation on the part of a victim of hypothetical, future harm. I agree with this submission and to the extent necessary view the sentence, “I should just turn to drinking like I did last time but harder or with drugs just to ease the pain of it all” as indicative of future, potential harm not yet realised. I do not place any significant weight on that aspect of the statement. This of course does not undermine at all the extent of the harm the victim does describe experiencing because of the offending, and the offender conceded as much.

50. The offender also submits that some of the harm described is absent “a clear causal link” with the offending and as a result, should not be taken into account. As Mossop J observed in Director of Public Prosecutions v Mitchell (No 2) [2023] ACTSC 118 at [11], there is no qualification built into the requirement that the harm suffered be “because of” the commission of the offence. The paragraph said to be absent a “clear causal link” begins, “Fuck I’m broken I’m not okay” and ends, “I hate how I just drown myself mentally so I don’t have to deal with any of it”. In my view the paragraph, while referring to matters outside of the context of the offences, can nonetheless be read as an expression by the victim of the result of feeling exploited and disrespected by the offender. The paragraph can be read as articulating the victim’s sense of feeling overwhelmed and emotionally vulnerable because of the offending.

51. Consistent with the approach to victim impact statements articulated in R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 at [41] and R v Porter (No 3) [2022] ACTSC 236 at [51]- [88], and noting the victim impact statement provisions do not require “a clear causal link” in order for harm to be “because of” the offending, the paragraph should be taken into account on the basis that I have indicated. If I am wrong about the need for a “clear causal link”, in my view, the paragraph would nonetheless be admissible. The Court must not undermine the important role of victim impact statements by implementing a technical approach that insists on neat, unequivocal expressions of harm, that are then expressed as directly attributable to the conduct. Common sense and life experience dictates that this is not necessarily how emotional suffering or mental injury manifest nor how they are expressed. Victims must be able to express themselves authentically and this might include by seeking to orient the harm suffered in their current experience of life. In my view this is precisely what the paragraph beginning “Fuck I’m broken” seeks to do. The paragraph is admissible and I take it into account as part of the harm suffered as a result of the offending. The Victim Impact Statement of AE

52. In her statement, AE described a change in behaviour after the offending and its impact on many aspects of her life. She reported being a confident person prior to the offending, excited for the future with no fear of adult men. The offending has affected her relationship with men in general and has heightened her anxiety around threats to her personal safety. The offending has affected her desire to attend school and her ability to work as her fear of men is debilitating and leads to panic attacks. She has become more likely to engage in risk-taking behaviour and make poor choices, and has suicidal ideation. She has experienced issues with drugs and alcohol. The offending has influenced how she behaves socially: she does not trust people, she wears earphones to avoid hearing male voices in public, she does not want to go to friends’ houses if they have a dad or brother, she cannot wear certain clothing or her hair in a certain way. Unsurprisingly, her self-esteem has been impacted. She dislikes being in public when she is alone. She described becoming an “angry person” and it affected how she viewed her father and one of her sisters and led to difficult relationships with other people. She was bullied at school when it became known that she had been a victim of the offending.

53. The victim also expressed that there had been physical impacts for her. She lost her virginity as a result of the offending and expressed that the offender “stole that part”. She said she was bleeding and scared after the offending, and she could not confide in anyone. She said the offending has impacted her perception of who is safe and has seen her choose to be with people who are “disrespectful and violent” towards her.

The Victim Impact Statement of SP

54. In her statement, SP detailed the significant impacts of the offending on her. She described feeling as though she cannot escape what happened to her and that the past constantly “comes back” to her. She has experienced blackouts, chest pains, vomiting, headaches, and an inability to sleep or eat. She has engaged in self-harming behaviours and feels like she is going insane. She says her life never stays happy and sometimes she feels like screaming at the top of her lungs. She described feeling numb at times. She also detailed a recurring dream she has involving the offender attempting to sexually assault her again, and that when she wakes up, she cannot stop thinking about her safety, and her family and friends’ safety, if the offender ever came back.

The Victim Impact Statement of WS

55. WS’s statement was read aloud to the Court. She described the excitement she had for her future prior to the offending and the effect it has had on her life. She also recorded the ripple effect that the offending has had on her parents. She now experiences extreme trust issues, low self-esteem, isolation, depression, anxiety and panic attacks. Although she wants to do well academically, she cannot face being around people and has missed many days of schooling. She could no longer face wearing her school uniform, as she was wearing it when the offending occurred. She feels as though she is constantly looking over her shoulder and suffers night terrors and insomnia. She described feeling as though the offender took something away from her that she can never get back. She expressed that no length of time in custody would be able to remove the pain he has caused.

The Victim Impact Statement of HS (the mother of WS)

56. HS’s statement was also read aloud to the Court. She expressed the difficulty of watching her outgoing and social daughter become withdrawn, isolated, unfocused and less social. Her daughter has struggled with her mental health due to the actions of the offender; she feels unsafe going out in public and has experienced depression and anxiety. Observing the impact of the offending on her daughter has affected HS significantly; it breaks her heart that her daughter has experienced this. The offending, she believes, has caused lifelong trauma for her daughter and no letter could do justice to the effect on her daughter’s life.

The Victim Impact Statement of RS (the father of WS)

57. RS’s statement was also read aloud to the Court, and similarly described the victim as previously confident, outgoing, social and academic and who has now become isolated and scared to go out in public. In his view, the offending has caused permanent mental damage to his daughter and has had a detrimental effect on her and the whole family. He described the difficulty of watching the change in his daughter’s confidence, mental health and social life since the offending.

Considerations

Nature and Circumstances of the Offending

58. A consideration of the nature and circumstances of the offending necessarily requires an assessment of the objective seriousness of the conduct. The maximum penalty provided for by the legislature provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. The maximum penalties in this matter reflect the seriousness with which sexual offending against children and young people must be treated.

59. There are some observations that can be made about the nature of sexual offences against young people generally and about the particular features that seem to me to be common to each of the sexual offences in this matter.

60. Firstly, the observations of the Court of Appeal in R v Summerfield [2018] ACTCA 20 (Summerfield), per Burns and Bromwich JJ at [59], are instructive in relation to children and young people as victims of sexual offending: A child may express a view or behave in a way that does or does not entail objecting in some way to sexual activity taking place with an adult, but the absence of objection cannot in any way constitute mitigation. It constitutes no more than an absence of aggravation and is ordinarily only relevant to rebut, or diminish the extent of, any such aggravation suggested by the Crown or that might otherwise be inferred. That is, given that a child cannot, directly, indirectly, or by any other circumstance, consent to sexual activity with an adult, it is a serious aggravation of an already very serious offence if the child also, in fact, objected to, or otherwise resisted, the sexual activity taking place. That conceptualisation also informs the approach to be taken to a child’s ostensible acquiescence to sexual activity with an adult by reason of such aggravating circumstances as pressure being placed upon, or inducement or encouragement of, a child to engage in that activity. All such acts by an adult to facilitate sexual activity with a child may be regarded, to a greater or lesser extent, as aggravating circumstances.

61. These observations assist to orient some of the features of the offending in this instance. All of the sexual offences involved the offender, an adult, and younger victims who could not “directly or indirectly or by any other circumstance” consent to sexual activity with him. The offending involved young women in their early to mid-teens and the offender as an older, apparently more confident young man, deliberately and clinically using them for his own sexual gratification. The age gap across the offending between the offender and the victims was between 5 and 10 years. In some instances, that I will specifically identify, the victim made her lack of consent obvious. In another the victim physically acquiesced after manipulation and pressure from the offender, and while doing so was subjected to other physical acts by the offender that she did make obvious she did not want. In all instances the offender wielded the difference in age and confidence between he and his victims in order to commit the offences.

62. Also common to each offence is that the offender demonstrated no regard whatsoever for the wellbeing of the victims. There is a callous quality to the offending, in particular against AE, SP and WS, that demonstrates a sense of entitlement to use their bodies for his own sexual gratification regardless of their thoughts, feelings or experience of the acts. I am satisfied that on each occasion the offender was motivated entirely by the pursuit of his own sexual gratification. The offender’s counsel submits the offending was opportunistic and unsophisticated. I accept the latter part of that submission to some extent but not the former.

63. In terms of the offences being unsophisticated I do accept that they do not have the hallmarks of careful planning. By this I mean the offender made no real attempt to conceal his identity or prevent the deposit of forensic material connecting him to the victims. On the other hand, this factor also exposes the level of confidence the offender had in his capacity to commit the offences without consequence and his lack of insight in relation to the seriousness of his offending conduct.

64. In my view, the offending can be properly characterised as predatory even though in some instances the conduct occurred when the opportunity presented itself to the offender, as in the case of AE. Once presented with the opportunity, the offender took full advantage for the sole purpose of his own sexual gratification and deliberately contrived the circumstances within which the offending occurred, for example, by driving to more private areas thereby limiting the opportunity to be interrupted or observed and isolating the victims.

65. Here there are multiple offences against young women involving the exploitation of their immaturity and naivety by virtue of the offender’s status as older than them and his determination to offend against them. The pattern revealed in the offences reflects somewhat careful selection by the offender of the victims and a level of contemplation of their age that points away from the offences being characterised as opportunistic. It is, I am satisfied, predatory conduct of the kind contemplated by Refshauge J in R v Goboly [2016] ACTSC 32 at [40]-[46].

66. I observe that none of the offences include additional, overt acts of violence or conduct designed by the offender to be specifically threatening or degrading. There is, I think, an observation to be made about the humiliating effect of having your body interfered with in an acutely intimate way in circumstances where your feelings about that interference have been entirely cast aside. So while I accept the offender did not engage in any acts of overt humiliation, I consider it appropriate and indeed necessary to acknowledge the capacity for the offending in and of itself to have that impact.

67. Two of the charges are “rolled up” charges: CC2022/6522 the offending against CF and CC2022/6252 the offending against WS. Both charges reflect a greater degree of criminality than a charge that captures one offence: see R v Hancock [2021] ACTSC 52 (Hancock) at [28] and Johnson v R [2017] NSWCCA 53 at [68]. I have adopted the approach to the rolled up charges consistent with the approach set out in Hancock at [28].

68. Consistent with observations made in this jurisdiction about the utility of references to low, mid or high range offending (see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156]), McCallum CJ recently observed in DPP v Moala (No 3) [2023] 306 at [22] that it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. In these proceedings the prosecution made submissions plotting the offender’s conduct on a “range”. For abundant caution I have indicated my view of the offending expressed as a “range” save for the Commonwealth offence which is an unremarkable example of the offence. Features of the specific offences that inform the objective seriousness

The offending against AE

69. The age gap between the offender and the victim was between five to seven years. The offending occurred when the victim was 12 or 13 years old and the offender was 18 or 19 years of age. The offender knew the victim’s age. The sexual intercourse was penile-vaginal penetration and the first time the victim had experienced this act. The victim voiced her lack of consent and the offender took steps to silence her by placing his hand over her mouth. This is the conduct I consider reveals callousness and a sense of entitlement on the part of the offender. I am satisfied the offender knew the victim was not consenting. The victim was made vulnerable by her presence in the offender’s vehicle, over which she had no control, and her reliance on him to transport her home.

70. In my view this is offending above the mid-range of objective seriousness.

The offending against MB

71. The age gap between the offender and the victim was five years. The victim was 15 years of age and the offender was 20 years of age when the offending occurred. The offender was aware of the victim’s age. The sexual intercourse was fellatio that the victim performed on the offender because she felt pressured by him to acquiesce. At the same time the offender attempted to penetrate the victim’s vagina with his fingers despite her objections. The offender ejaculated in the victim’s mouth despite being told by the victim that she did not want him to do so. While the act did not present the risk of pregnancy it is not entirely without risk of sexually transmitted infections. The offender was subject to a 12 month Good Behaviour Order, imposed on 21 August 2017, when the conduct occurred.

72. In my view, this is offending in the mid-range of objective seriousness.

The offending against SP

73. The age gap between the offender and the victim was eight years. The victim was 14 years old and the offender was 22 years old when the offending occurred. The offender committed the act knowing the victim’s age. The victim, feeling pressured by the offender, physically complied and experienced a “freeze” response to the conduct. The offender clearly contemplated how the act might be experienced by the victim and nonetheless proceeded saying, “you’re not really going to enjoy this but I will”. This is the basis, in my view, for the characterisation of his conduct as callous and driven by a sense of entitlement. The victim was vulnerable, being alone in the offender’s car.

74. In my view this is offending at the mid-range of objective seriousness.

The offending against CF

75. The age gap between the offender and the victim was 10 years. The victim was 13 years old and the offender was 23 years old when the offending occurred. The indecent act was touching of the victim’s vagina for a period of seconds over her underwear after running his hand up her leg as well as kissing her on the lips and touching her buttock with one hand. The conduct occurred in circumstances where the victim made clear she did not want the offender to touch her as he was and that she was uncomfortable. This is a “rolled up” charge, made more serious than a charge that includes only one offence because it encompasses a number of acts.

76. In my view this is offending around the mid-range of objective seriousness.

The offending against WS

77. The age gap between the offender and the victim was 10 years. The victim was 14 years of age and the offender was 24 years of age when the offending occurred. The offender knew the victim’s age. The sexual intercourse involved both digital and penile penetration of the victim’s vagina. The victim experienced pain as a result of the sexual intercourse. The victim made clear that she did not want to have sexual intercourse with the offender. I am satisfied he knew that and was not deterred. The victim was alone in the offender’s vehicle. The offender did not wear a condom, presenting a risk of pregnancy and/or sexually transmitted infections. This is a “rolled up” charge, made more serious than a charge that includes only one offence because it encompasses two acts of sexual intercourse.

78. In my view this is offending above the mid-range of objective seriousness.

Section 3LA Offence

79. The conduct involved in this offending is typical of the offence. There are no aggravating features. The conduct frustrated, as it was intended to, police efforts to obtain evidence from the offender’s mobile phone. Responsibility and remorse

80. The circumstances of the sexual offending as I have found them, noting that I am satisfied in each case that the offender knew the age of the victims and, in the case of AE, SP, CF and WS, knew that they were not consenting, reveals the offender’s moral culpability to be high.

81. The offending was predatory and committed over a lengthy period of time against multiple victims. Accordingly, the offender bears a very high degree of responsibility for the offending.

Letter from offender

82. The offender has written an undated letter to be taken into account during these proceedings, provided as part of the material upon which he relied. The letter apologises to the victims and their families for his actions. The letter details that the offender considers that he has “grown up” while in custody and has now realised the harm he had caused to the victims. He acknowledges that the victims were underage at the time and were not able to consent. This is somewhat difficult to reconcile with the views he is recorded as expressing to the author of the Pre-Sentence Report (PSR), when it is reported that he said some of the victims were over-age and described the offending as “hook-ups” (see [94]).

83. In the letter, the offender expresses remorse and acknowledges the significant consequences of his conduct that the victims and their families likely experienced. He writes that he is “disgusted” in himself and asserts that the “pain and mental distress” his actions caused “just doesn't correspond with my good nature”. The offender promises that nothing like the offending will “ever happen again” and suggests that at the time of the offending he was “affected by alcohol and losing work” which caused him to go “downhill”.

84. In R v Baxendale [2018] ACTSC 60 Loukas-Karlsson J said at [37]: The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [36]; R v Mumberson [2011] NSWCCA 54 at [38].

85. This is consistent with Imbornone v The Queen [2017] NSWCCA 144, where the Court of Criminal Appeal confirmed expressions of remorse contained in letters written by an offender should be “treated with considerable circumspection” and may be deserving of little or no weight given the assertions contained therein are untested: [at 57].

86. By itself, the letter is not significant evidence of remorse. The offender did plead guilty at an early opportunity, the effect of which I deal with at [107]-[108]. While some commentary in the PSR reflects an attempt by the offender to distance himself from the seriousness of the offending, other commentary is reflective of insight into and acknowledgment of, the harm caused by his conduct. The offending occurred over a significant period which saw the offender move from his latter teenage years through to being a young man in his early to mid-twenties. There were many opportunities over that period for him to reflect on his conduct. He did not. That said, this appears to be the offender’s first and only experience of full-time custody which may have led to some introspection in circumstances where he appears to have accepted he will be required to serve a significant period of imprisonment.

87. I am satisfied that there is evidence of some remorse on the offender’s part for his conduct. Remorse is a factor relevant to an assessment of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41].

Subjective circumstances

Pre-Sentence Report

88. The PSR summarises the offender’s prior contact with ACT Corrective Services (ACTCS) having previously been subject to two Good Behaviour Orders in relation to an offence of minor theft and an offence of failing to comply with exclusion direction. His response to supervision was considered satisfactory.

89. He has not been subject to any formal discipline while remanded in custody at the Alexander Maconochie Centre (the AMC), and consistently maintained employment and has engaged with available programs.

90. The offender disclosed a generally positive childhood and has been raised in an “ordinary middle-class family”. He is close with his parents and older brother but not his older sister. The author noted the offender’s sister is a client of ACTCS. He is single and his last significant relationship was three years ago and lasted 18 months. He reported the relationship broke down after his partner had been sexually assaulted. Mr Doughty’s mother, somewhat at odds with the offender’s description, reported that her son’s upbringing was not easy and that he had been exposed to alcohol and illicit substance abuse in the family.

91. The offender completed Year 12 and started a refrigeration mechanic apprenticeship, however did not complete it as the company ceased trading. He has been employed in the construction industry though ended his most recent employment in January 2022 due to “boredom”. His mother described him as struggling both socially and academically at school, saying he was a slow learner and a “loner” who did not have friends or socialise very often. She said he was “100% socially isolated” and had few friends. His activities were limited to gaming. In contrast the offender described himself as a “social person” who met up with friends to play basketball and play games on their phones.

92. The offender described himself as having no prior or current problems with alcohol. He disclosed some minor experimentation with illicit substances in the past. His mother stated he had used cannabis but could not provide details on how often or how much. The author of the report noted he had been convicted of driving a motor vehicle with alcohol in his breath on two occasions.

93. The offender reported no mental or physical health problems. He was previously seen by the Custodial Mental Health Service in relation to suicidal ideation in September 2022, but this was resolved. A recent letter from ACT Health confirmed he had not been formally diagnosed with any mental or physical health conditions.

94. In terms of his attitude to the offences and any remorse expressed, the offender mostly agreed with the statement of facts. He stated he had been aware of the victim’s ages but claimed that two of them had been over 16 years old, in what the author considered to be an attempt at minimising the offending. He provided an explanation of the offending, stating that he found young girls easier to talk to than women his age and that the “hook ups” had happened because he was bored, rather than him being attracted to the victims as he is “not physically attracted to young girls”.

95. The author attributed the following commentary to the offender at page 3 of the report: …acknowledged he should not have acted in the manner he had, however offered justification for his actions out of a need for personal affection, stating “I did not get a lot of affection or praise growing up.” He reported he had been in a negative frame of mind at the time of the offending and acknowledged that his lack of self-control had hurt others. Mr Doughty stated he felt disgusted in himself and devastated his actions had hurt the victims and their families. He expressed disappointment in his actions, describing them as a “messed up thing to do.”

96. The author considered that the offender was seeking to minimise his responsibility for the offending.

97. The offender was assessed as having a medium risk of general re-offending, and an above average risk of sexual re-offending. The author identified protective factors as his supportive relationship with his mother and stable accommodation. Mental health treatment as well as offence specific treatment were recommended in order to address his risk of sexual offending. The suitability of an Intensive Correction Order (ICO) was not addressed in the report and I was not asked to the refer the offender for that assessment.

AMC Programs

98. The offender has been employed in Ground Maintenance in the AMC and has engaged with several education programs. He has achieved numerous statements of attainment and certificates of achievement including in relation to hygienic practises for food safety, safe work practices, responsible service of alcohol, goal setting, alcohol and drug use, conflict resolution, keeping well, self-esteem and working with others. Rehabilitation

99. The offending occurred over a period that saw the offender move from 18 to 24 years of age. He is now 26 years of age. It was not a matter of controversy as between the parties that rehabilitation should feature as a sentencing consideration. Counsel for the offender submitted that the ‘youth’ of the offender, at least at the commencement of the offending, should see rehabilitation take on a “strong emphasis” in the sentence imposed. At the same time, it was accepted by counsel for the offender that the offences do not reflect the kind of impulsivity, rash judgement and/or immaturity that might typically attend to the kind of offences young adult men routinely commit, such as driving a motor vehicle without consent or failing to stop when signalled by a police officer.

100. The offending here involves significant criminality. I am satisfied it was predatory, motivated entirely by sexual gratification and emboldened by a sense of entitlement to use the bodies of girls in their early to mid-teens with no regard for their wellbeing or their right to control their own bodies. That is not to say the offender’s age and emotional maturity at the commencement of the offending did not have any influence on his capacity for good judgement and personal reflection. Those factors do, however, reveal the very real seriousness of the offending and demonstrate that the offending pattern was consistent over a five-year period, during which time the offender moved well and truly into adulthood. These were not offences borne of the rash judgement or impulsivity that might accompany youthfulness.

101. That the offender was a young man at the time his offending began and to a degree, as the offending continued, should not see rehabilitation overwhelm the other purposes of sentencing that must feature prominently in this sentencing exercise. These are offences of considerable gravity, the circumstances of which require a particular emphasis on general deterrence, punishment and recognition of harm such that the mitigatory effects of his youth should be reduced though not, I accept, entirely extinguished: see Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 and KT v R [2008] NSWCCA 51; 2008 A Crim R 112.

102. The offender has demonstrated a capacity to be productive in custody and to comply with the custodial regime. This is a positive shift away from the approach he appeared to take to employment while in the community. I have accepted there is some evidence of remorse. To the extent that they are available to prisoners on remand, the offender has completed a number of education courses, including some that require an aspect of self-reflection.

103. It is difficult to assess the offender’s prospects of rehabilitation where the attitude demonstrated by some of the comments attributed to him in the PSR reflect a concerning perspective about the seriousness of his conduct. The risk he presents in relation to sexual re-offending is consistent with that concern. As a sentenced prisoner he will have access to programs that more specifically target those attitudes. I am satisfied that if the offender engages with educational opportunities that reveal to him the true nature of his conduct and he has a genuine desire to reform, his prospects for rehabilitation will be enhanced.

104. The Court is regularly reminded that the most enduring way to protect the community is to promote rehabilitation: (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]).The reality is that the parole authorities will be in a more informed position than this Court to assess whether the offender’s attitudes evolve to a more enlightened place such that the risk that he might present to the community can be managed outside of a custodial environment, under their supervision. I am prepared to accept that the offender has demonstrated some capacity for reform and some appetite for self-reflection. Counsel for the offender suggested this provides a “glimmer” of rehabilitative hope. I accept that submission.

105. Rehabilitation, while appropriately taken into account in the sentence I impose, should not subjugate the other purposes of sentencing of critical significance in light of the nature and circumstances of the offending.

Plea of guilty

106. The offender entered pleas of guilty in the ACT Magistrates Court to CC2022/9977, 9978, 6522, 6525 and 6527. This a very early stage of the proceedings and represents significant utilitarian value. The offender entered a plea of guilty to CC2022/11997 in the ACT Supreme Court following Criminal Case Conferencing.

107. Considering the timing of the pleas, the sparing of the victims from having to give evidence at trial as well as the saving of considerable court time and community resources, consistent with Blundell v the Queen [2019] ACTCA 34, I have afforded a discount of 25 per cent in recognition of the offender’s guilty pleas to CC2022/9977, CC2022/9978, CC2022/6522, CC2022/6525 and CC2022/6527, and a 20 per cent discount in recognition of the guilty plea to CC2022/11997.

Current sentencing practise

108. I was provided with sentencing outcomes from this Court by the prosecution which are extracted below. The sentencing process requires justice to be done by reference to the particular circumstances of each individual case. Sentencing statistics and comparable cases do not define the possible range of available sentences nor do they place a cap on the upper or lower ranges of possible sentences: see Hili v the Queen (2010) HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53].

R v McGrail (No 3) [2016] ACTSC 372

109. The offender was sentenced for two counts of engaging in sexual intercourse with a person under the age of 16 years, two counts of committing an act of indecency on a person under the age of 16 years and one count of attempting to engage in sexual intercourse with a person under the age of 16 years. All offences involved the same victim and occurred on the same night as part of one series of events, which warranted significant concurrency. The victim was 15 and the offender was around 24 years old. The offender used physical force to restrain her while committing the offences. He was found guilty at trial by a jury. The offending involved an act of digital penetration of the victim's vagina, for which a sentence of 2 years and 3 months imprisonment was imposed; an act of cunnilingus, for which a sentence of 3 years imprisonment was imposed; kissing the victim around her neck and chest area, for which a sentence of 14 months imprisonment was imposed; pushing the victim's head towards his penis while asking her to suck it, for which a sentence of 16 months imprisonment was imposed; and attempting penile-vaginal intercourse, for which a sentence of 3 years imprisonment was imposed. The obvious lack of consent of the underage victim was relevant to assessing the objective seriousness of the offending which varied from lower to mid-range. The total sentence was one of 4 years imprisonment with a non-parole period of 2 years.

R v BC [2022] ACTCA 19

110. In R v BC [2022] ACTCA 19, the Court of Appeal re-sentenced the offender for one count of an act of indecency on a person under 10 years and three counts of sexual intercourse with a person under 16 years. The first count, being the act of indecency, occurred when the victim was under the age of 10 and involved the offender rubbing his penis over the victim’s vaginal area. This count received a 2 year Good Behaviour Order which was not the subject of appeal. Two counts of sexual intercourse with a person under 16 years saw a sentence of 2 years and 5 months imprisonment imposed and a third saw a sentence of 3 years and 2 months imprisonment imposed. The individual sentences and the head sentence of 4 years and 6 months were not the subject of appeal. The offender and the victim were cousins. For the three sexual intercourse offences, the victim was 14 and 15 years old and the offender was 20 years old. The offender was aware on these occasions that the victim was not consenting. It was serious repeated offending, and predatory. The original non-parole period of 18 months was set aside and the offender was re-sentenced by the Court of Appeal only in relation to increasing the non-parole period to 3 years.

R v Summerfield [2018] ACTCA 20

111. In Summerfield, the Court of Appeal set aside sentences imposed after finding that they were manifestly inadequate and re-sentenced the offender. The victim was 15 and the offender was 18. He had penile-vaginal sexual intercourse with the victim and did not use a condom. There was a second victim of offending, which occurred in March 2016. That victim was 13 years old. The offender came into the room where the victim was and asked if she wanted to have sex. She said yes. They had penile-vaginal intercourse. He was wearing a condom. A period of 6 months imprisonment was imposed on each of the two counts of penile-vaginal sexual intercourse with a person under 16 years of age and were undisturbed on appeal. Sentences of 6 months and 12 months imprisonment for two further counts of sexual intercourse with a young person (fellatio and penile/vaginal) were also not disturbed by the Court of Appeal, however the cumulation between offences was increased. The sentence imposed at first instance for the final count of sexual intercourse with a person under 16 years of age (the second victim) was increased from 15 to 24 months imprisonment. A non-parole period was re-set from 12 to 18 months imprisonment.

R v Hile [2018] ACTSC 266

112. The offender was sentenced in relation to four counts of an act of indecency on a person under the age of 16 and two counts of sexual intercourse with a person under the age of 16. The victim was 14 at the time. The offender was found guilty at trial by a jury. He was 27 at the time of committing the offences and expressed no remorse. The offender’s criminal history included entries of sexual offending, namely acts of indecency without consent. For three of the act of indecency offences involving kissing, he was sentenced to 1 month imprisonment. For the act of indecency involving the victim masturbating the offender, he was sentenced to 6 months imprisonment. It was noted that the victim willingly participated in the acts. On one count of sexual intercourse with a person under 16, consisting of the victim performing oral sex on the offender at his request, he was sentenced to 2 years imprisonment. On the other count of sexual intercourse with a person under 16, consisting of penile-vaginal intercourse he was sentenced to 2 years imprisonment. Overall, the offender was sentenced to 2 years and 5 months imprisonment and a non-parole period of 18 months was set.

Section 3LA offence

R v White [2022] ACTSC 178

113. In R v White [2022] ACTSC 178, the principal offending was importing a commercial quantity of a border-controlled drug. The offending was assessed as unremarkable, involving a refusal to provide passwords which did not ultimately prevent police from accessing the devices. It was assessed as in the low-mid range of objective seriousness for this type of offence. The most significant sentencing consideration was general deterrence, Mossop J observing at [46] “without significant penalties there are strong incentives for persons to refuse to comply with those orders”. The offender was sentenced to 12 months reduced from 16 months imprisonment for the plea of guilty, and 6 months was concurrent with the principal offence.

DPP v Torbert [2023] ACTSC 332

114. In DPP v Torbert [2023] ACTSC 332, the offender was sentenced for failing to comply with a s 3LA order, along with a number of offences arising from a home invasion. The offender pleaded guilty. Despite the non-compliance police were able to gain access to the offender’s mobile phone without his assistance though this was found not to affect the seriousness of the offending: see [36]. The offender was sentenced to 4 months imprisonment for failing to comply with the s 3LA order after a discount of around 10 per cent was applied for the plea of guilty.

Conditional liberty

115. The offender was on conditional liberty at the time he committed CC2022/9977 in 2017. This is a factor relevant to the appropriate punishment to be imposed and is not a factor that influences the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61]. In September 2015, a Good Behaviour Order was imposed on the offender for 6 months, resulting in an expiry date of 13 March 2016. CC2022/11997 is particularised as occurring in 2016. Without further precision it is not possible to find that the offending occurred in breach of that Good Behaviour Order. Time in custody

116. The offender has been in custody since 6 July 2022 and the sentence I impose will be backdated to take account of the time spent in custody.

Determination

117. The purposes of sentencing are set out at s 7 of the Crimes (Sentencing) Act. As I have already indicated, these offences, in my view, demand an outcome that places significant emphasis on general deterrence, punishment, accountability, denunciation and recognition of harm. I am satisfied that specific deterrence and rehabilitation are also factors that must be considered. I have also taken into account s 33 (Crimes (Sentencing) Act) considerations where relevant and known.

118. The maximum penalties that apply to these offences reflect the abhorrence the community has for sexual offending against young people. Children and young people are entitled to grow and develop free from predatory conduct by those seeking to use them for sexual gratification and free from the significant ramifications of that conduct: R v Eisenach [2011] ACTCA 2 (Eisenach) at [86] quoting R v Dent (unreported, NSWCCA, 14 March 1991). The often complex and life altering consequences for victims and those who love them, is revealed powerfully in this matter. Indeed the offending here, I am satisfied, has had the very impact contemplated by the Court of Appeal in Eisenach when it observed at [92]: While serious offences in themselves, they generally impair the opportunity for the victims to develop into mature adults addressing their sexuality in a timely and appropriate way.

119. The approach to these kinds of offences outlined in Eisenach at [88] is apposite here: In order to respond to these offences, the courts are required, having steadily in mind the maximum penalties provided, to use their sentencing powers and the purposes for which they have been given, to protect the children in the community. This involves action directed at the offender, to punish, deter and provide opportunities for and encouragement of rehabilitation as well as action directed to the community more broadly with denunciation of the conduct, deterrence of others who may be likely to engage in it and vindication of the victim.

120. I must deal with a federal offence as part of this sentencing exercise and so I apply the provisions of Pt IB of the Crimes Act 1914. The sentence I impose must be of a severity appropriate in all the circumstances: s 16A(1). I have taken into account those matters that are known and relevant pursuant to s 16A(2). This is unquestionably a case where the only appropriate outcome, considering possible alternatives is a period of immediate, full-time imprisonment: s 10 Crimes (Sentencing) Act, s 17A(1) Crimes Act 1914. Sensibly, no submission was advanced on behalf of the offender to the contrary.

121. Sentencing for a number of offences as is the case here, requires an appropriate sentence for each offence to be fixed and then questions of accumulation or concurrence, as well as totality, to be considered: Zdravkovic v Queen [2016] ACTCA 53 at [64]. Counsel for the offender warned against a “crushing” outcome and suggested it could be avoided by the application of “significant concurrency” as between the separate offences. As the Court of Appeal identified in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]: A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result of accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length) R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17].

122. The prosecution submitted that the outcome must properly respect the separate nature of the offending and cautioned that “significant” concurrency could risk due recognition of the discrete nature of the offending.

123. While of course what constitutes “significant” is a matter upon which reasonable minds might differ, I bear in mind that the outcome I impose should be just and appropriate in all the circumstances reflecting the gravity of the separate criminality involved in the charges. I bear in mind that I must avoid any suggestion that multiple offences will result in a discount: Mill v The Queen (1988) 166 CLR 59 at 63; O’Brien v The Queen [2015] ACTCA 47 (O’Brien). These offences are discrete instances of criminal conduct involving separate victims. I refer to the guidance in O’Brien at [26] where the Court referred to Cahyadi v The Queen (2007) 168 A Crim R 41 at [27]: Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences.

124. There is, in my view, a need for a degree of cumulation as between the offences to give proper effect to the principles of sentencing that feature significantly and to properly reflect the separate and distinct criminality involved in the offender’s conduct. I bear in mind the need to avoid a crushing sentence.

125. The effect of s 19AJ of the Crimes Act 1914 is that I cannot impose a single non-parole period for both Territory and federal offences. The approach I will take is to commence the sentence for the federal offence before the sentences for the Territory offences begin after grouping them together: DPP v Swingler [2017] VSCA 305. This will see the offender serving a Territory sentence at the end of the sentence for the federal offence. The offender will be subject to a non-parole period for the Territory offences. Arising from that circumstance I decline to make a recognizance release order: s 19AC(1) and 19AC(4) Crimes Act 1914.

126. The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien. I have had regard to those principles. The non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, and the offender’s guarded prospect of rehabilitation: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57].

127. I agree with the submission made by counsel for the offender that it would be in both the offender’s and the community’s interest for a lengthy period of parole supervision in light of the nature and circumstances of the offending necessitating close scrutiny of the offender in the community upon his release. I have taken that factor, as well as all of the other relevant factors I have identified into account, when setting what I consider to be the appropriate non-parole period of 60 per cent. While I cannot fix a non-parole period in respect of both federal and Territory sentences of imprisonment, I do take into account the total period that the offender will spend in custody because of the sentences I impose, when fixing the non-parole period for the Territory offences.

128. The starting point for the offence of failing to comply with a Section 3LA order (CC2022/6527) is 16 months imprisonment reduced to 12 months imprisonment for the plea of guilty.

129. The starting point for the offence of sexual intercourse with a young person (CC2022/11997) (AE) is 42 months imprisonment reduced to 2 years 9 months and 18 days imprisonment for the plea of guilty.

130. The starting point for the offence of sexual intercourse with a young person (CC2022/9977) (MB) is 36 months imprisonment reduced to 2 years and 3 months imprisonment for the plea of guilty.

131. The starting point for the offence of sexual intercourse with a young person (CC2022/9978) (SP) is 42 months imprisonment reduced to 2 years 7 months and 14 days imprisonment for the plea of guilty.

132. The starting point for the offence of act of indecency with a young person (CC2022/6522) (CF) is 24 months imprisonment reduced to 1 year and 6 months imprisonment for the plea of guilty.

133. The starting point for the offence of sexual intercourse with a young person (CC2022/6525) (WS) is 48 months imprisonment reduced to 3 years imprisonment for the plea of guilty.

Orders

134. For those reasons I make the following orders: (1) On each charge I convict the offender. (2) On the count of failing to comply with a section 3LA order (CC2022/6527) I sentence the offender to 12 months imprisonment commencing on 6 July 2022 and ending on 5 July 2023. (3) On the count of sexual intercourse with a young person (CC2022/11997) I sentence the offender to 2 years, 9 months and 18 days imprisonment commencing on 5 January 2023 and expiring on 22 October 2025. (4) On the count of sexual intercourse with a young person (CC2022/9977) I sentence the offender to 2 years and 3 months imprisonment commencing on 22 January 2025 and expiring on 21 April 2027. (5) On the count of sexual intercourse with a young person (CC2022/9978) I sentence the offender to 2 years, 7 months and 14 days imprisonment commencing on 21 July 2026 and expiring on 6 March 2029. (6) On the count of an act of indecency on a young person (CC2022/6522) I sentence the offender to 1 year and 6 months imprisonment commencing on 6 August 2028 and expiring on 5 February 2030. (7) On the count of sexual intercourse with a young person (CC2022/6525) I sentence the offender to 3 years imprisonment commencing on 5 February 2029 and expiring on 4 February 2032. (8) The total sentence imposed is 9 years, 6 months and 30 days imprisonment commencing on 6 July 2022 and ending 4 February 2032. The non-parole period for the Territory offences will commence on the 5 January 2023 and end on 8 April 2028.

I certify that the preceding one hundred and thirty-four [134] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: Date: 22 December 2023