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[2025] ACTSC 362
General information, not legal advice.
Supreme Court of the ACT
2025-08-14
Mossop J
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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 Hyde (a pseudonym) Citation: [2025] ACTSC 362 Hearing Date: 12 August 2025 Decision Date: 14 August 2025 Before: Mossop J Decision: See [81] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offences committed by young person [redacted] – plea of guilty – offending in the mid range to the upper end of objective seriousness – offender has had mental health and substance abuse problems from young age – catastrophic and pervasive victim impact – culpability of offender high – offences close in time – requirement that imprisonment be the last resort significant – offender sentenced to 24 months’ imprisonment, suspended after 16 months CRIMINAL LAW – YOUNG OFFENDERS – Sentencing of young offender decades after offending occurred – offender to be sentenced on the basis that offending occurred when he was a young person – purpose of rehabilitation prioritised, other factors must be considered, and imprisonment must be the last resort – however, subsequent conduct relevant to assessment of rehabilitation prospects – full extent of victim impact can be considered Legislation Cited: Crimes Act 1900 (ACT), ss 92K, [redacted] Crimes (Sentencing) Act 2005 (ACT), ss 7, 10 33, 35, 63(1), 63(2), 64(2), 133B, 133C, 133D, 133G, Ch 8A Cases Cited: [Redacted] Parties: Director of Public Prosecutions Liam Hyde (a pseudonym) (Offender) Representation: Counsel S McLaughlin (DPP) J Maher (Offender) Solicitors ACT Director of Public Prosecutions ACT Legal Aid (Offender) File Numbers: SCC 261 of 2023 SCC 262 of 2023 MOSSOP J: Introduction
The offender is to be sentenced for the following offences: (a) Act of indecency on a person under 16, contrary to s 92K of the Crimes Act 1900 (ACT) (CC CAN 134/2023). (b) [Redacted]. (c) [Redacted]. (d) Act of indecency on a person under 16, contrary to s 92K of the Crimes Act (CC CAN 135/2023). (e) Act of indecency on a person under 16, contrary to s 92K of the Crimes Act (SC CAN 450/2023).
The offender is identified by the pseudonym “Liam Hyde”. The offending occurred between 23 and 27 February 1999. As at that time, the maximum penalties were as follows: (a) Act of indecency on a person under 16: 10 years’ imprisonment. (b) [Redacted].
Facts
The facts relating to the offences were agreed and set out in a document that was tendered without objection as part of the prosecution tender bundle. [Redacted]. At this time, the offender was 15 years old. [Redacted], the victim of the offending, was 12 years old. The difference in ages was three years and 11 days. [Redacted].
[Redacted]. The Cotter Campground had a shower block with individual showers separated by cubicle walls.
The first shower cubicle incident (CC CAN 134/2023: Act of indecency on person under 16)
On one day, the victim and the offender went to use the showers at the Cotter Campground. The offender and the victim were showering in adjoining but separate cubicles. Whilst the victim was showering, the offender, who was naked, jumped over the divider into the victim’s cubicle. The victim asked the offender what he was doing and told him to get out.
The offender moved towards the victim and asked the victim to touch his penis. The victim declined and moved towards the back corner of the shower cubicle, away from the offender. The victim observed the offender’s penis to be erect.
The offender continued to talk to the victim, trying to convince him that they should touch each other and that it was normal. The victim declined [redacted], to which the offender responded, “I’ll kill you”. During this conversation, the offender reached out and touched the victim on the penis. The offender then took hold of the victim’s hand and forced the victim to touch the offender’s penis. At some point, the offender pressed his body up against the victim’s body.
At some point, something caused the offender to jump. The victim ducked past the offender, grabbed his clothes and left the cubicle to get dressed. As the victim was running out of the cubicle, the offender said, “I’ll fucking kill you if you [redacted]”, and the victim felt terrified. The victim did not tell [redacted] or anyone else about what had occurred.
This is a mid range offence. It was not entirely spontaneous, the victim repeatedly declined the offender’s suggestions, the offender made a significant threat, and the offending involved skin-on-skin contact and only ceased because of the victim’s fortuitous escape.
[Heading redacted]
Approximately one day after the first shower cubicle incident, [redacted].
The offender approached the victim, who backed away from the offender until he was sitting backed up against the table and seats.
The offender advanced slowly towards the victim until he had one knee on the victim’s left thigh and the other on the victim’s right thigh, pinning him down. The offender, using one hand, took hold of both of the victim’s hands and pinned them up against the wall [redacted]. During this time, the offender was trying to convince the victim to perform oral sex on him. The offender straddled the victim and threatened to kill him if he did not comply. The victim feared that the offender would seriously hurt or kill him.
The offender reached down with his free hand and touched the victim on the penis over his clothing. The offender continued to ask the victim to touch his penis. The victim refused and the offender grabbed the victim and forced his hand towards his penis, touching it over his clothes.
The offender then pulled his own pants down, exposing his erect penis. The victim said words to the effect of “I’ll fucking bite it off if you put that in my mouth” and the offender responded to the effect “I’ll fucking kill you if you do anything”.
The offender had one hand free, the other pinning the victim’s hands up against the side [redacted]. The offender removed his penis from his pants and moved it towards the victim’s face. The offender then took hold of the victim’s head with his free hand, thrust his penis in the victim's mouth and “had sex” with the victim’s mouth. The victim could not recall how it ended or whether the offender ejaculated.
The victim felt pain in his jaw and described the taste as being disgusting.
The victim again did not feel that he could tell anyone about what had occurred.
This offence was premeditated as the offender waited until he was alone with the victim and locked the door. He physically restrained the victim and made threats to kill him in order to overcome the victim’s resistance. The offending is at the upper end of the mid range for this offence.
The second shower cubicle incident ([Redacted]; CC CAN 135/2023: Act of indecency on person under 16)
On another occasion during their stay at the Cotter Campground, the victim was naked in a shower cubicle. The victim had purposefully chosen to go to the shower cubicles after he had observed that the offender had already used the shower block.
Whilst showering inside the cubicle, the offender again climbed over the cubicle wall into the victim’s cubicle.
The offender was naked and pushed the victim up against the wall of the cubicle so the victim was facing the wall with the front of his body pressed against it. The offender took hold of both the victim’s wrists and held them.
The offender was standing directly behind the victim and pushed his erect penis between the victim’s buttocks, towards his anus. The victim clenched his buttocks to prevent the offender from continuing. In response, the offender took hold of the victim’s head and forcefully slammed it against the cubicle wall. The victim told the offender “no”, but the offender told the victim that it would be “ok” and “not to worry”.
The offender continued to push his penis between the victim’s buttock cheeks until he penetrated his anus. The victim felt an immediate burning, ripping sensation, and “enormous” pain, which caused the victim to squeal and cry.
The offender stopped momentarily and said, “shut up”. The victim told the offender that “it hurts so much”. The offender pushed his penis back between the victim’s buttock cheeks and the victim clenched his buttocks. The offender said to the victim, “stop being such a girl” and “you’re such a fucking girl” as he continued attempting to penetrate his anus. The offender then pushed his penis between the victim’s buttocks cheeks and again penetrated the victim’s anus. The victim felt immediate and even more severe pain, which caused the victim to yell out.
The offender stopped and pushed the victim away. The offender told the victim to perform oral sex on him instead. The victim refused and decided that, as he did not want the offender’s penis inside his mouth again, he would try and masturbate the offender instead. The victim masturbated the offender until he ejaculated.
The victim felt pain and discomfort to his anus as a result of this incident.
The victim again did not tell [redacted] or anyone else due to fear and his feelings of shame as to what had occurred.
The [redacted] involved two occasions of penetration of the anus occurring in the immediate context of violence perpetrated in order to overcome the victim’s resistance, with the offender ignoring the victim’s complaints and resistance. Taken altogether, this aspect of the incident is in the upper end of objective seriousness [redacted], largely because of the nature of the acts [redacted].
The act of indecency involved the subsequent masturbation. It reflects a “surrender and negotiate” approach on the part of the victim, only arising in the context of the violent sexual assault that immediately preceded it. It is at the upper end of the mid range of objective seriousness for an act of indecency.
[Heading redacted]
[Redacted].
The offender moved his hand and touched the victim’s penis over his clothes. The offender asked the victim to touch him and “play” with him. The victim told the offender to “fuck off” and that he was trying to go to sleep.
The offender persisted in asking the victim to touch him. The victim was fearful that the offender might try and penetrate his mouth or anus again if he continued. The victim decided that, to prevent that happening, he would masturbate the offender.
The victim took hold of the offender’s penis and masturbated him until he ejaculated. The victim does not recall where the offender ejaculated.
The victim did not tell [redacted] or anyone about what had occurred.
[Redacted].
This offending is mid level offending for this offence. It proceeded notwithstanding the initial resistance of the victim. It did not involve violence but occurred in the context of the previous violence and the fear that this generated.
Disclosures
The victim of the offending first made disclosures in 2005. In 2018, he made disclosures to his older sister.
In 2019, when the victim was 33 and the offender was 36, the victim confronted the offender, who acknowledged that he had engaged in inappropriate sexual behaviour and said that he would go and speak to the police.
As a consequence, the offender made disclosures of his offending to South Australia Police. During the interaction with police, the offender also said, “I feel absolutely mortified that I did something like that to somebody that [redacted]” and “I followed my gut, and my gut was telling me I need to try and let you guys know what has happened”.
On 26 September 2019, the victim provided a statement to South Australia Police providing a version of events.
On 19 June 2020, South Australia Police offered the offender the opportunity to participate in a Record of Interview. That offer was ultimately declined.
In February 2022, the matter was subsequently referred to ACT Policing’s Criminal Investigations – Sexual Assault and Child Abuse Team.
Victim impact
Victim impact statements were read to the court by the victim of the offending, his wife, his mother and his father. These were lengthy and powerful statements and an important part of the sentencing process.
In one sense, they demonstrated how important it is for the victim of the offending to have members of his family who remain supportive of him. However, they demonstrated comprehensively how the offending has had long-term and pervasive impacts upon the victim of the offending and how those impacts have had consequences for his wife, parents and broader family. [Redacted].
[Redacted].
The range of consequences for the victim and his family are of the type that, unfortunately, is expected of such offending against a child. [Redacted].
It is also clear that, as for many victims and their families, the investigation and judicial processes have been difficult for them. Not only is the process often frustrating, but the necessity to continually confront and revisit the circumstances of the offending places a significant burden upon the victim and his family. The additional stress and uncertainty during the period when the offender maintained his plea of not guilty to some of the charges emphasises the utilitarian value of the pleas of guilty and the consequent avoidance of the need for the victim and other members of his family to give evidence at a trial.
Subjective circumstances
The personal circumstances of the offender are disclosed in a pre-sentence report and in the sentencing reasons to which I refer later.
The offender is 42 years old. Nothing in his childhood has been identified which would explain his offending conduct. He has two children aged 16 and 18 with a former partner. The relationship with his former partner was a dysfunctional one. One of his children has quite severe autism [redacted]. Both children are now in the care of his parents pursuant to a long-term arrangement.
The offender commenced using cannabis from the age of 12 and alcohol from the age of 13. He described having “issues with addiction and mental health from a young age”. His use of alcohol has continued to be problematic throughout his life. He has attempted various rehabilitation programs but has only been able to maintain sobriety when out of custody for six to eight months at a time.
The offender left school in either Year 10 or 11 to start work. When the offender was about 16, his parents relocated to Queensland. The offender initially remained living in South Australia but then moved to Queensland.
The offender unsuccessfully attempted to return to school and instead worked various jobs at a supermarket, picking fruit and fencing. The offender later completed certificates in kitchen operations and commercial cookery.
The offender’s substance abuse has impacted all areas of his life, including his relationships, his mental health, and his ability to finish school, maintain employment and lead a prosocial life.
Although some statements to the author of the pre-sentence report involved a denial of offending and suggested a traversal of his plea, counsel for the offender made it clear that the offender accepted the agreed statement of facts.
He was assessed as not suitable for a community service work condition because he lives in South Australia.
Criminal history
At the time of the offending, the offender had no criminal history.
In 2002, he was dealt with without conviction for an offence of larceny. In 2007, he was convicted of disorderly behaviour, assaulting police and being unlawfully on premises and was given a good behaviour order. In 2009, he was convicted of using offensive language. In 2012, he was convicted of carrying an offensive weapon. In 2013, he was convicted of disorderly behaviour. In 2014, he was convicted of possessing liquor in a public place and of behaving in an offensive or disorderly manner on licensed premises. In 2016, he was convicted of travelling on public transport without a ticket. In 2018, he was convicted of using abusive language. In 2019, he was convicted of theft. These all involve minor offending, some of which appear to arise from his abuse of alcohol.
[Redacted].
[Redacted].
[Redacted].
Plea of guilty
The proceedings were first before the Magistrates Court in March 2023. The offender pleaded guilty to two acts of indecency on a person under 16 (CC CAN 134 and 135 of 2023) in the Magistrates Court on 5 June 2023, but was only committed to the Supreme Court for sentence on 9 October 2023. Pursuant to s 35 of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act), he will receive a reduction in sentence of approximately 25 percent in relation to these charges.
In relation to the counts of [redacted] and the third count of an act of indecency on a person under 16 (SC CAN 450/2023), the offender entered pleas of guilty on 19 June 2024. This occurred in the Supreme Court slightly over two months after criminal case conferencing, but still before the matter had been allocated a trial date. He will receive a reduction in sentence of approximately 20 percent in relation to these charges. Time in custody
Following his release from custody in South Australia, the offender was placed on bail. Following the sentencing hearing on 12 August 2025, he was taken into custody again on that date in relation to allegations of offending following that hearing. There is no time in custody directly attributable to the offences for which he is to be sentenced today, but both parties agreed that backdating pursuant to s 63(1) of the Sentencing Act was available and appropriate, even though not mandated by s 63(2).
Sentencing young offenders
As the offender was 15 when he committed the offences, he is to be sentenced as a “young offender” in accordance with the principles in Ch 8A of the Sentencing Act (see the definition in s 133B of the Sentencing Act). In particular, the following provisions apply: (a) Section 133C provides that the sentencing purpose of rehabilitation is prioritised and may be given more weight than other purposes. Further, the court must pay particular regard to individualised justice. (b) Section 133D provides that, in addition to the factors in s 33 of the Sentencing Act, the court must also consider: (i) the young offender’s culpability for the offence, having regard to his maturity; (ii) the young offender’s state of development; and (iii) the young offender’s past and present family circumstances. (c) Section 133G provides that a sentence of imprisonment must be a last resort, for the shortest appropriate term, and that the court must consider making a combination sentence (with no ability to set a non-parole period: s 64(2)).
This is not a usual case in which these provisions are to be applied. The usual situation is one in which the child or young person is sentenced at some time proximate to their offending. In those circumstances, the importance of rehabilitation remains large because the offender is young and has the potential, and should have the opportunity, to rehabilitate themselves.
The circumstances of the offender in the present case are very different because he is now in his 40s. Thus, although, as with all offenders, rehabilitation remains a significant concern, it applies somewhat differently than where a person is still young and has greater potential to change as they mature. This difference in circumstances is accommodated by s 133C, which requires the court to consider the purpose of promoting the rehabilitation of the offender but gives a discretion as to whether or not to give more weight to that purpose than it gives to the other purposes in s 7. It remains, however, mandatory to have particular regard to the common law principle of individualised justice.
Although the significance of rehabilitation is different in the circumstances of the offender, it nevertheless remains the case that he was only 15 at the time of the offending and these were his first offences. The provisions of the Sentencing Act require those facts to be taken into account, and require that imprisonment only be a last resort and “for the shortest appropriate term”. As I have indicated, if a sentence of imprisonment is imposed, there is no power to set a non-parole period, but there remains a capacity to suspend or partially suspend a sentence of imprisonment.
Consideration
Sentencing as a young person
As I have indicated, the less usual feature of this sentencing exercise is the fact that the provisions relating to the sentencing of children and young offenders apply even though the offender is now in his 40s. The offender is to be sentenced on the basis that this was his first offending and occurred at a time when the law recognises people to be young, immature, lacking an understanding of society and social norms, less able to properly control their behaviour or assess the consequences of their actions, and deserving of leniency as a result. However, the assessment of the potential for rehabilitation, which must be a prominent feature of sentencing for young people, must occur in a different context where the offender is much older and has committed a serious sexual offence subsequently.
So far as the significance of rehabilitation is concerned, although I have, for the purposes of s 133C, considered the purpose of promoting the rehabilitation of the offender, I do not consider it appropriate to give that purpose more weight than any of the other purposes in s 7. That is because the offender is now an adult and has had the opportunity to be rehabilitated but has subsequently, as an adult, demonstrated that he is not rehabilitated by the commission of the serious offending [redacted]. He is therefore in a substantially different position to a young offender who is sentenced proximate to his offending where the future is unknown and there can still be hope that he will be rehabilitated as he matures.
Each of the purposes of sentencing set out in s 7 of the Sentencing Act are significant. Having regard to the emphasis placed by s 133C upon individualised justice in the context of sentencing persons who commit crimes when under 18, I consider that general deterrence is a less significant purpose of sentencing in a case like this. Denunciation of the conduct and recognition of the harm done to the victim and the community are obviously significant.
At the age of 15 years and eight months, the offender undoubtedly recognised the wrongfulness of his conduct. There is nothing in the evidence to indicate that he was particularly immature or had any other difficulty appreciating the wrongfulness of his conduct. Having regard to the agreed facts, it is clear that he recognised that what he was doing was wrong and hence made threats against the victim in order to deter disclosure [redacted]. So far as the evidence discloses, the circumstances of his upbringing provide no explanation for his conduct nor any basis for mitigating the penalty to be imposed. His culpability for the offences was, having regard to his maturity and state of development, high.
All of the offending occurred within a small number of days. While I have treated each subsequent offence after the first as being more serious by reason of it reflecting continuing wrongful conduct, because all of the offending is within a confined period, it is distinct from other cases where offending has occurred over a longer period and where substantially later offending can be assessed as substantially more serious as a result.
Victim impact
Comparable cases
Lapse of time
Sentences
In relation to the first act of indecency, this was the offender’s first offence, and he pleaded guilty at an early stage. I do not consider that the s 10 threshold, when read in combination with the requirement in s 133G that imprisonment be a last resort, has been met. In those circumstances, this charge will be dealt with by way of a good behaviour order.
In relation to the subsequent offending, I do consider that the s 10 threshold (read with s 133G) has been passed and therefore that sentences of imprisonment are appropriate. A degree of concurrency between sentences is appropriate, having regard to the offending conducts’ relationship in time, particularly where the charges form part of a single incident. Had the offender been sentenced for these offences at the same time as the offending against [redacted], there would have been no foundation for any concurrency between the sentences as that latter offending is so temporally separate from the offending for which he is now to be sentenced. There is therefore no need to adjust any sentence on that basis.
The length of each sentence imposed is very much shorter than would have been the case had the offences been committed by the offender as an adult. In my view, such short sentences are required by the proper application of the provisions of Ch 8A of the Sentencing Act, in particular ss 133D and 133G, and by the fact that, prior to this series of offences, the offender had no criminal history.
The sentences that are appropriate and the basis for their calculation are as follows.
Offence Maximum Reduction Starting Sentence Cumulation penalty point [Redacted] [Redacted] 20 percent 12 months 10 months 10 months [Redacted] [Redacted] 20 percent 16 months 13 months 7 months Act of indecency 10 years 25 percent 8 months 6 months 3 months (second shower cubicle incident) Act of indecency 10 years 20 percent 8 months 6 months, 4 months ([redacted]) 13 days TOTAL 24 months
Orders
I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop. Associate: Date: ************** Amendments
22 September 2025 On the cover page, in the catchwords portion, delete “with a 16 month non-parole period” and substitute “, suspended after 16 months”.
DPP
Hyde