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[2025] ACTSC 168
General information, not legal advice.
Supreme Court of the ACT
2025-04-30
Christensen AJ
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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 Mortimer Citation: [2025] ACTSC 168 Hearing Date: 19 February 2025 Decision Date: 30 April 2025 Before: Christensen AJ Decision: See [147] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – persistent sexual abuse of a child – using a child for production of child exploitation material – aggravated common assault – 13 year old victim – [redacted] – youthful offender principles – consideration of Bugmy and Verdins principles – where offender has significant mental health difficulties and history of multiple cancer diagnoses – effect of custodial environment – likelihood of reoffending – intensive correction order not appropriate – fulltime partially suspended sentence Legislation Cited: Corrections Management Act 2007 (ACT) s 53 Crimes Act 1900 (ACT) ss 11, 26, 56, 64 Crimes (Sentencing) Act 2005 (ACT) ss 7, 11, 12, 33, 34B, 35, 65, 133C Family Violence Act 2016 (ACT) s 9 Cases Cited: Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 DPP v Doughty [2023] ACTSC 397 DPP v Earle [2023] ACTSC 93 DPP v Gottaas-Hughes [2023] ACTSC 85 DPP v Small (No 2) [2023] ACTSC 274 Forster-Jones v The Queen [2020] ACTCA 31 Henderson v The King [2024] ACTCA 3 R v Ashton [2022] ACTCA 45 R v CN [2020] ACTSC 282 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v EO [2017] ACTSC 138 R v EN [2019] ACTSC 354 R v Haven [2022] ACTCA 61 R v Horton-Hegarty [2018] ACTCA 22 R v Michalopoulos [2020] ACTSC 27 R v Miller [2019] ACTCA 25 R v Ngerengere [2016] ACTSC 299 R v NL [2018] ACTSC 22 R v Page [2022] ACTCA 65 R v Porter (No 3) [2022] ACTSC 236 R v Smith (a pseudonym) (No 2) [2020] ACTSC 260 R v Stephens [2024] NSWCCA 170 R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 R v Toumo’ua [2017] ACTCA 9; 12 ACTSC 103 R v Verdins [2007] VSCA 102; 16 VR 269 R v Ware [2022] ACTCA 14; 17 ACTLR 273 R v Whittaker [2021] ACTSC 189 Text Cited: The Bugmy Bar Book, Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence (May 2024) [Redacted] The Bugmy Bar Book, Child Abuse and Neglect (June 2024) Parties: Director of Public Prosecutions (Crown) Byron Lucas Mortimer (Offender) Representation: Counsel M Dyason (Crown) K Lee (Offender) Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (Offender) File Numbers: SCC 222, 223 of 2023 CHRISTENSEN AJ: Introduction
The offender Byron Mortimer is to be sentenced with respect to sexual offences and a physically violent offence committed on a teenage girl in November and December 2022. Offending involving the sexual abuse of children of any age is serious and warrants adequate punishment, and a sentence that reflects denunciation, deterrence, and the harm caused to the victim. The offending here involves: (a) Persistent sexual abuse of a child, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 2023/7950, Count 1), carrying a maximum penalty of 25 years imprisonment; (b) Aggravated use of a child for production of child exploitation material, contrary to s 64(3)(a)(i) of the Crimes Act (SCCAN 2023/389, Count 3), carrying a maximum penalty of 13 years imprisonment, 1300 penalty units, or both; and (c) Aggravated common assault, contrary to s 26 of the Crimes Act (SCCAN 2023/397, Count 15), carrying a maximum penalty of 3 years imprisonment.
On behalf of the offender, it is accepted that the seriousness of the offending is such that the only appropriate sentences are imprisonment. I agree. It was further submitted on behalf of the offender that the Court not impose a period of fulltime imprisonment, but rather sentence the offender to a community based imprisonment order in the form of an intensive correction order (ICO): s 11 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I do not agree that such a sentence is an appropriate sentencing order. For the reasons that follow, a fulltime period in custody, with a partial suspension of the sentence, will be imposed.
The offending
Immediately prior to the offending, the victim resided with her family, which included her mother and her sister, in Yass.
In early November 2022, the victim and the offender started to converse on the Snapchat application. They got to know each other by sending “snaps” to each other and chatting through the application. The victim was aged 13 years and 10 months at this time. The offender was aged 20 years. Shortly after meeting, the pair commenced an intimate relationship and therefore from that point were family members for the purposes of s 9(b) of the Family Violence Act 2016 (ACT) (Family Violence Act).
The same day the pair started talking on Snapchat, the victim ran away from her home. The offender offered for the victim to stay with him whilst she was in Canberra. At the time, the offender resided with his mother in a two-bedroom apartment in Greenway. The victim accepted the offer and caught a bus to Tuggeranong. They texted each other during the bus trip.
The offender met the victim at the bus stop, and they walked together to his apartment in Greenway. At this time, the victim told the offender she was 15 years old. Within two weeks, the offender was told the victim was 13 years of age.
The victim stayed at the offender’s residence for a couple of days. During this period, the victim’s mother reported her missing and ACT Police attempted to locate her.
The victim returned to her residence in Yass but stayed in contact with the offender through Snapchat and iMessage.
Between early November and 27 December 2022, the victim would go to the offender’s apartment on weekdays, sometimes staying for up to three days, and she would stay overnight on weekends. The offender’s mother also lived at the apartment during this time and was often home when the victim visited and stayed over.
During the time the victim stayed with the offender, the pair would smoke cannabis together. This cannabis was nearly always sourced by the offender. The victim had earlier told the offender in a text message on 7 November 2022 that she smoked “weed” and needed a “cone”. She also told him “I do a bit more then [sic] weed”.
November 2022 Fellatio Production of child exploitation material
The victim and the offender went to the offender’s bedroom and began to consume cannabis. The victim felt intoxicated by the cannabis.
The victim and the offender had talked about “sexual stuff” and on 9 November agreed to “do something”. The victim told the offender that she did not want to have sex with him as she had not “shaved”. The offender asked her “will you give me a blow job?”. The victim understood this to mean fellatio, and she agreed to this.
The victim does not recall giving the offender fellatio. She later fell asleep in the offender’s bed.
The following morning the victim woke up in the offender’s bed. The offender and the victim were talking, and the offender asked her “how did you think last night was?”. The victim told the offender that she did not know what he was talking about, and the offender showed her a video on his phone.
The video depicted the victim on the offender’s bed, with her head on the offender’s pillow. The offender’s penis was in the victim’s mouth, and the victim was moving her head up and down while the offender thrust his penis into her mouth. At one stage, the video depicted the victim’s eyes roll back into her head, whilst the offender’s penis remained in her mouth. The video is two minutes and 13 seconds in length.
The victim asked the offender to send her the video, and he sent her the video either via a message or AirDrop. The victim did not have a memory of performing fellatio on the offender as depicted in the video.
November 2022 Penile/vaginal intercourse
Later that day, the offender and the victim took a shower together. After the shower, the offender and the victim consumed cannabis before they began to kiss and touch each other while in the offender’s bedroom. The offender attained an erection and removed his pants. The victim was naked.
The offender took a condom and asked the victim to put it on him, which she did. The victim appeared confused and put the condom on incorrectly. The offender removed the condom and said “you don’t know how to put a condom on? I thought you would have”. The offender then showed the victim how to put the condom onto his penis and put the condom on his penis.
The pair positioned themselves in a spooning position, with the offender behind the victim. Both were naked. Whilst in this position, the offender penetrated the victim’s vagina with his penis for around two to five minutes before he ejaculated.
Knowledge as to age of victim
10 November 2022 Penile-vaginal intercourse Production of child exploitation material
On 10 November 2022, the victim was at the offender’s apartment. She described herself as being really high as throughout the day she had consumed multiple ‘cones’ of cannabis with the offender. The offender had smoked approximately the same amount.
The offender and the victim had previously discussed making pornographic videos. The offender wanted to make a video of the victim and the offender having sex on his iPhone 11 Pro.
The offender was lying flat on his back on his bed, and the victim was sitting on the offender’s penis, ‘grinding’ for a bit. At this point they were wearing clothes.
The offender and victim then took their clothes off. The offender passed the victim a condom and she put it on the offender. The offender then lent over and picked up his phone from his desk and positioned the phone on the right side of the offender on the bed. The victim then climbed on top of the offender, and he put his penis into her vagina. Whilst they were having sex, the offender held the victim’s breasts.
Approximately 30 seconds into the intercourse, the offender picked up his phone, which was positioned sideways, and commenced recording. The victim said to the offender “why did you record that?”. He replied, “because then I can always like wank to it when you are not with me”. The offender stopped the video and the offender and victim continued to have sexual intercourse. The offender ejaculated and the intercourse ended.
A few days after this incident, the offender sent the victim the video via iMessage as she requested it. The offender did not send the video to anybody else.
24 December 2022 Object/penile/anal intercourse Fellatio
On 22 December 2022, the victim left her house in Yass to travel to the offender’s apartment. The offender and the victim had discussed trying ‘anal’, and the victim agreed to do so as a present for the offender.
On 24 December 2022, the victim and offender were in the offender’s bedroom, naked on his bed. The victim was positioned on all fours with her head towards the bed frame at the end of the bed. The offender approached her from behind and tried to insert his penis into her anus, but it would not penetrate.
Together the offender and the victim were trying to come up with ideas as to how to make the anal penetration work. The offender went and got a banana. A condom and lubricant was placed on the banana and it was inserted into the victim’s anus. The victim described it as being extremely painful. The offender told the victim that the banana did not even go halfway in.
Following the penetration with the banana, the victim said to the offender that if “he wanted to do it now he could”. By this she meant that he could attempt to penetrate her anus with his penis. The victim turned around and the offender penetrated her anus with his penis for about 30 seconds, before he pulled out his penis without ejaculating.
The offender did not use a condom when penetrating the victim’s anus. The offender removed his penis from the victim’s anus.
After about 30 seconds the offender tried again to penetrate the victim’s anus with his penis but was unable to. He then said to the victim “oh just give me a blow job in 20 minutes and we will call it even”.
The victim described the penetration of her anus with the offender’s penis as painful, being a six out of a possible ten, and told police that she experienced pain in her anus for up to two days after the incident. The offender had not realised that the victim was in pain.
Approximately 20 minutes after having anal intercourse, the victim and the offender engaged in fellatio. The victim was lying on the offender’s bed, with her head off the side of the bed and tilted backwards. The victim agreed to this position on request of the offender. The offender was standing up and he put his penis into the victim’s mouth. The victim described the position as ‘incredibly painful’ in her throat and she felt as though she could not breathe. The offender was not aware that the victim was in discomfort. The offender continued to penetrate the victim’s mouth with his penis for about 10 minutes.
The offender then removed his penis from the victim’s mouth and told her to ‘move upon the bed’. The offender then ejaculated all over the victim’s face, with the victim agreeing.
On 21 January 2023, the victim and the offender were texting each other. The victim suggested that she and the offender could be “friends w[ith] benefits”. The victim wrote [sic], “but like us bein friends w benefits is jus for fucks yk cause lk u miss fucking all the time cause I miss it to yk l ke I’m mad horny n I’m guessing u r too”. In that context the pair had the following exchange [sic]: Victim yea Legit never again w anal tho Offender hahaha omg that’s a deal that was an experience lol Victim Yea frl Offender ahahah it as so unprofessional from both of us lol Offender I ke we both were so confused bro or at least I was idfk imao Offender but was still nice to experience that with you none the less Further particulars of count 1
For the duration of their relationship the victim and the offender had sexual intercourse including fellatio on numerous occasions. The victim told police they had multiple sexual encounters, and she did not recall most of them. However she estimates that they may have engaged in sexual intercourse over 100 times during the two months, and would have sex multiple times per day when she was staying with him.
On one occasion between 9 November and 27 December 2022, the offender and victim engaged in penile vaginal intercourse in the shower. The offender wore a condom, and the intercourse lasted approximately 5 to 10 minutes until the offender ejaculated.
Earlier in the day on 24 December 2022, the offender asked the victim to have sex with him. The victim told him no, and the offender said, “if you love me you will fuck me”. The victim turned around and ignored the offender. The victim was lying down at the time.
The offender then began to grind his penis against the victim’s buttocks and touch her body and kiss her. He then removed her boxer shorts and put his penis into her vagina and commenced having sexual intercourse with the victim. The offender was wearing a condom. The victim cried during the incident. The offender did not see the victim crying.
After the incident, the offender removed his penis and pulled his pants up. At which point the offender got out of bed and began playing computer games. The victim stayed in the bed for another 20 minutes. The offender said to the victim “go make us breakfast”. The victim then got up and made her and the offender scrambled eggs and toast. The victim left the house later in the day and returned to her home in NSW.
Aggravated common assault
On an unknown date, likely in December 2022, the victim and the offender were sitting on the offender’s bed in his bedroom. The victim and the offender were “really high” from the consumption of cannabis and engaged in a verbal argument.
The offender slapped the victim’s face with an open hand. The victim believes the offender used his right hand.
The victim told police that the slap was not painful, but it really shocked her. She stated the force of the slap was a five out of ten. In text messages, the offender apologised for slapping the victim. He said, “I was trying to be dominant and playful by slapping you I’m so sorry about that I should of said something”. In the victim’s view, “it’s not sexual when we’re in the middle of an argument”.
The victim told police that she had the following exchange with the offender after the slap: Offender I am so sorry. I’ll never do that again Victim Yeah, but why would you do it in the first place? Offender It was sexual
On an unknown date, after the first act of assault, the victim was with the offender in his bedroom. She was seated on his bed and was really upset. The offender was nearby.
The offender was angry at the victim for being upset and screamed at her, “you have to tell me what to do to make you happy then. You have to tell me what is wrong”. The victim responded by saying words to the effect of: Shut the fuck up. Like really I can’t deal with your bullshit. If you keep going on like this. I’m going to break up with you straight away. Like you are driving me fucking insane… It’s almost mental abuse and like … mental abuse. You actually hit me the other day. Look at you, you’re a 20-year-old dating a 13 year old.
In response the offender slapped the victim across the face, hitting her right cheek with his right hand, an open palm, leaving a red mark on her face.
After the slap, the offender sat down at his computer, packed a bong and commenced playing a computer game.
End of the relationship
Complaint to police
On 5 March 2023, the victim attended at the police station where she participated in an evidence-in-chief interview.
On 8 March 2023, the victim agreed to participate in a pretext phone call with the offender. During the call, the following admissions were made by the offender: Victim: Bro, straight-up, I can’t stop thinking about you. Like --- Offender: (Laughs) Yeah, I can’t stop thinking about you either. It’s been a bit like that. Victim: Yeah. Like I miss your dick, bro (Laughs) Offender: (Laughs) I miss you. I just miss you, hey. … Victim: Yeah, right. No, I just got freaked out by like the age gap, you know. Like I know that I never said it was a problem but just like – it just kind of freaked me out. Like … Offender: Yeah. (Indistinct) I understand. And I – I try and think about it as well, but, dude, I don’t – it’s just the one time I’m willing to just do whatever, you know Victim: Yeah. Well, it’s just like you realised I was 13, you know? Offender: (Laughs) Yeah. It was a bit full-on, hey? Like I was like – but I was like, ‘I’m not going to stop now, because fucking’ – you know. … Victim: What do you mean, ‘It was fucked’? Offender: Like the way like – just that shit was and stuff. Victim: You mean like the way you treated me? Offender: Yeah, look – I – I – I love you. Victim: And like you hitting me and shit Offender: Yeah, but, dude, I (indistinct) like, you know, but like that’s – that’s the past and I’m never – I’m never doing that shit. Like that wasn’t like – I fucking regret all that shit, hey. Like really big - - - … Victim: Why do you – what are we going to do if I come over? I will. But what are we going to do? Offender: (Laughs) We’re going to fuck very hard. … Victim: Yeah. Maybe it would be different this time that I’m 14 not 13. Offender: (Laughs) That’s the thing also. I like – I always correct people. I'm like, ‘She's 14.’ (Laughs) Victim: (Laughs) Who? Offender: I try to make – Mm? Victim: Who? Offender: Just like close people. Like fucking like my mum and shit, you know. Like I’m always trying to like, you know - - -
At around 5:40pm on this date, the police attended at the offender’s residence and arrested him. His mobile phone was seized. A Cellebrite examination conducted on the offender’s phone contained a number of messages between the victim and the offender that were of a sexual nature. This includes the following message exchanges: Victim: Like I mean we could be friends w benefits Victim: But like us bein friends w benefits is jus for fucks yk cause lk u miss fuckin all the time cause I miss it to yk l ke I’m mad horny n I’m guessing u r Too Offender: But yes I miss our fucks so bad holy shit I’m so glad to hear you miss that stuff too coz holy fuck did we fuck good omg Victim: Yea its weird to go from fucking like 5 times a day to just like not at all yk Offender: Legittttt and like I miss our fucks you know Victim: Also putting it out there unless we’re mid fuck if you ever slap me again I’ll hit u back 10% fucking harder I ain’t dealing w that shit ever again. Victim: N I want u to realise that it was wrong Victim: No excuses Offender: I promise I’m never doing that shit again I’m sorry and it was wrong Victim: Hit me as hard as u want when we’re fucking Victim: Yea good just fucking ur too gentle like when we’re ducking [sic] it’s good to l ke go good n slow but for a bit then just fuck mr [sic] as hard as u can n like pull my hair slap me tell me what a slut I am n how much u like ducking [sic] me like if u do that shit I’ll be l ke moaning n everything n l ke I’ll respond w shit that’ll probably turn u on heaps anyway so
The Cellebrite examination further identified several photographs of the victim, photographs of the victim and the offender together, photographs of the victim and of the offender embracing and kissing each other.
It also appears that the video recordings described above are on the Cellebrite.
Complaint evidence
Victim’s mother
The victim’s mother told police that the victim started skipping school and not coming home in November and that she reported the victim missing to police.
On one occasion she picked the victim up from the bus stop in Yass, from a bus that had travelled from Civic. She thought the victim looked drug affected.
After the victim had broken up with the offender, sometime after Christmas, the victim told her mother that: - There were two videos of the victim and the offender engaging in sexual acts; - She realised the offender had raped her when she was speaking to her friend. She had been raped as she was so drug affected; - The offender first thought the victim was 15 years of age, he then found out she was 13 years, this did not stop him from pursuing the victim; and - The offender was dirty and that when he removed his pants the victim could smell him.
Admissions
Following his arrest and a remand in custody, the offender had several conversations with his mother which were recorded. During these conversations they discussed the following: Phone call – 9 March 2023 Offender I have my regrets big time Offender I should not have sent her that text Offender I feel horrible that I put you [his mother] in this position Phone call – 11 March 2023 Offender’s mother The law states that what you have done is wrong and its very very serious Offender’s mother All we can do is move forward, this is something that you are not going to do again Effect on the victim
The traumatic effect of the offending on the victim is set out in a victim impact statement from the victim herself, and in one from her mother. The victim bravely read her statement directly to the court.
The victim describes her experience of immense suffering, stress, and the exacerbation of post-traumatic stress disorder. She has been prescribed numerous medications to try and help her process of grieving, and to help her sleep at night. She has lived every day with feelings of having been objectified, and feeling as if she was treated like she was not even human. The victim expresses her distress that the offender described what was occurring as “love”, when it was instead a circumstance that made her feel like she was a sex object. The period in which she was becoming a teenager will forever be impacted by the traumatic start that she experienced. She has been hurt more than she realised was possible. The victim profoundly describes that she will never be able to wash off the offender’s touch, nor recover the little girl that the offender ripped out of her. Reflective of her strength, the victim expresses that she knows she is so much more than how the offender treated her.
The victim’s mother echoes the depth of harm that has been caused to the victim. She describes the difficulty of putting into words how terrible it has been to see her daughter suffer the way she has. Her daughter has experienced shame, guilt, and sorrow, and has suffered significant physical and mental health impacts. There have been nightmares, panic attacks, and flashbacks. The victim has been unable to eat, has suffered in her school engagement, has struggled to leave the house, and has needed multiple medical appointments. The victim’s mother describes it as feeling like watching her daughter drowning.
The victim’s mother herself experienced the agony of not knowing where her daughter was, and the desperation of wanting to know her daughter was okay, only to find that she was not. There have been impacts on the victim’s sister, who has been exposed to the trauma experienced by the victim, and there has been stress on the family unit and their finances in seeking support. The victim’s mother has herself become isolated as a result. She describes that she would not wish the suffering they have experienced on her worst enemy.
There can be no doubt that this offending has been of significant impact on the teenage girl involved, and also on her family. Section 7(1)(g) of the Sentencing Act provides that a purpose of sentence is to recognise the harm done to the victim of the crime and the community.
Nature and circumstances of the offending
The period of the relationship was for two months, which is a relatively short period for this offence. The relationship between the parties was one of ‘boyfriend/girlfriend’, with the relationship implicitly involving a level of exploitation given the age and circumstances of the victim. The victim was aged 13 years throughout, with a seven year age disparity to the offender. However, the offender initially understood the victim to be aged 15 years (which was still an offence), and the first occasions of sexual activity occurred while he was under that understanding. The sexual activity continued after the offender became aware of the victim’s real age. The relationship did not come to an end as a result of this, but rather, appears to have come to an end not entirely of the offender’s own doing. It was a sexual relationship that the offender engaged in for his own sexual gratification.
I do not accept the prosecution submission that the offending here was in the “upper end of the scale” with reference to some of those features of the relationship. But, it did involve multiple acts of penetration, which is extremely serious. On behalf of the offender, it was accepted that sexual intercourse occurred regularly, but not that it was in excess of 100 times as originally submitted by the prosecution. This was because the facts provide this amount to be an “estimate”. The prosecution did not press that intercourse occurred at the level originally submitted, but submitted that there were individual sexual acts in excess of, or very close to, 100 times. There were occasions of multiple acts of intercourse in one day. Even on this view, there was a high level of frequent acts of penetration, including multiple acts of penile-vaginal intercourse, an act of object-anal intercourse, an act of penile-anal intercourse, and multiple acts of fellatio. There were additionally other acts of sexual activity. It appears that condoms were used for the acts of penile-vaginal intercourse but not the acts of penile-anal intercourse or fellatio. The victim was exposed to the risk of sexually transmitted disease.
The offending also involved acts with a level of depravity and humiliation, but the extent to which they can be characterised in this way is mitigated by the awareness of the offender during the sexual acts and his reduced moral culpability (see above at, eg. [33], [40] and see below at [97], [128]). This is not to say that the victim’s experience was anything less than one involving depravity and humiliation, but in assessing the objective seriousness, the offending lacks this aggravating feature. It is offending that also lacks significant emotional manipulation, although that feature was not absent during the unlawful relationship. There was substance use during the engagements, but this was not in the nature of a deliberate attempt to disinhibit the victim. The offender nonetheless engaged in sexual activity with the victim when she was affected by substances.
The offending does involve the aggravating feature of the victim being in a vulnerable position. This arises by virtue of her age and that she had ‘run away’ from home. The victim was reported as a missing person and this was known to the offender. Nonetheless, she was not solely residing with the offender throughout the period of the offending, and the offender’s mother was aware of the concerns relating to the victim and seemingly did not influence the offender’s conduct by intervening.
On behalf of the offender, it was submitted that “whilst the offender accepts the victim could not consent at law to any sexual activity, most of the sexual interactions during the relationship were with the victim’s agreement”. I regard this submission in the manner described in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at [54], [59]. That is: It is simply not open to a judge in sentencing for offences involving sexual activity between an adult and a child to treat any aspect of the permitted non-sexual relationship as mitigatory of the proscribed sexual activity. … 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.
It should also be borne in mind that, as accepted on behalf of the offender, this characterisation relates to ‘most’, not all, of the acts. There was one act in particular which occurred after the victim had said no to intercourse, and the offender then engaged in emotional manipulation and sexual activity.
As to the aggravated production of child exploitation material offence, this is a ‘rolled up’ count, such that the criminality involved is greater. There were two videos made, both of short duration and made for personal use. They were not further distributed, or shown to anyone else, other than to the victim on her request. Nonetheless, they involved highly explicit sexual content, with a callous disregard for the victim in producing the recordings.
The aggravated common assault offence is also a ‘rolled up’ count. The victim was slapped in the face, a vulnerable part of the body, with the acts occurring at times when the victim was in states of particular vulnerability. There was a concerningly ready response by the offender to escalate to violence, particularly for the second act which occurred after the offender had said he would not do such an act again. There are features of the offender exhibiting physical dominance and control over the victim. I accept that the background of the offender, considered further below, is informative in reducing the moral culpability of the offender with respect to this offence. Nonetheless, I find, having considered all possible alternatives, that imprisonment is the only appropriate penalty for the assault offence. The same conclusion is drawn with respect to the other offences.
The production of child exploitation material and the assault offences are both aggravated by involving family violence, which accounts for the increased applicable maximum penalties. That the offences involved family violence requires consideration of the matters in s 34B of the Sentencing Act, and, it follows, the preamble to the Family Violence Act. The offending occurred at the offender’s home, which was still a place the victim was entitled to feel safe. The victim was herself a child. The nature of the family violence here involved the production of sexually explicit content and acts of slapping. As the preamble provides, family violence is unacceptable in any form.
Pleas of guilty
The offender pleaded guilty in the Supreme Court to the charges the subject of sentence, in full satisfaction of the indictment. This was after initial pleas of not guilty, the provision of the brief of evidence, and after a trial date had been listed. A level of utilitarian value remains, particularly in that the victim was ultimately spared the requirement to give evidence, although there was a lengthy period during which she would have anticipated this.
The extent of this utilitarian value must also appropriately take into account the submission on behalf of the offender as to the early attempts to resolve the matter. On the information provided, this was in the Magistrates Court after the brief of evidence was received. There were ongoing negotiations which included occasions of representations being rejected and counteroffers made. The offer that led to the resolution of the matter was made at the end of July, with the trial listed to commence on 18 November 2024. In considering a plea of guilty following negotiations, it must be borne in mind what was said by the Court of Appeal in R v Toumo’ua [2017] ACTCA 9; 12 ACTSC 103 (R v Toumo’ua) at [77] that: [T]he respondent was entitled to the benefit of being sentenced on the negotiated charges, but there was no additional entitlement to a s 35 [of the Sentencing Act] discount on the basis that the pleas of guilty were entered at the earliest reasonable opportunity.
The prosecution contend that the Court would consider that the prosecution’s case for the offences was overwhelmingly strong, such that the Court would not make a significant reduction as a result of the pleas of guilty. The prosecution submitted that the audio-visual recordings, the text communications, the admissions captured in text messages and on the pretext call, and the contemporaneous complaints to four people made by the victim established, in combination, an “overwhelming” case.
The difficulty I have with the prosecution submission is that the matters relied upon were capable of establishing an overwhelming case to the bare elements of each of the offences, including the offence contrary to s 56 of the Crimes Act, but not necessarily to the particulars and facts relied upon on sentence. This includes with respect to the offence contrary to s 64 of the Crimes Act where the prosecution will have been required to prove beyond reasonable doubt that the material represented contents that were “substantially for the sexual arousal or sexual gratification of someone other than the child”: s 64(5) Crimes Act. Establishing this element, for example, was reliant on the account of the victim. There is only a “very small class of cases that satisfy the “overwhelmingly strong” requirement”: R v Toumo’ua at [73]. This is not one of them.
Having regard to the utilitarian value of the pleas of guilty, I assess that a reduction in the order of 15 to 20 per cent is appropriate.
Subjective circumstances
The offender is now 22 years of age.
He had no criminal history at the time of the offending, but after his arrest, made contact with the victim which was a contravention of a family violence order. He has since been sentenced in respect of that offending. Leniency is available to the offender with reference to the absence of a criminal history at the time of the offending.
The offender’s subjective circumstances are set out in an ICO assessment report dated 12 February 2025, a psychological report of Ms Vanessa Edwige dated 24 January 2025, a letter from endocrinologist Dr Susan Wigg dated 4 February 2025, letters from counsellor Mr Stephen Sedgwick dated 13 June 2024 and 10 February 2025, and letters from ACT Disability, Aged and Carer Advocacy Service (ADACAS) dated 8 August 2023 and 13 February 2025.
The offender identifies as Aboriginal, being a Ngarigo, Yuin, Wiradjuri, and Tiwi Island man through the ancestral birthrights of his mother and father. The ICO assessment report states that the offender is not connected with Aboriginal culture and has expressed no interest in engaging in cultural activities at this time. The psychological report of Ms Edwige, which I place more weight on in this regard, provides that the offender reported that he would like to access cultural supports to facilitate healing, and Ms Edwige opines that, with support, the offender will be able to build a stronger sense of his cultural identity.
The offender is currently single and has no children.
He was born in England and moved to Canberra with his family, being his parents and a younger brother, at two years of age. He describes a difficult childhood due to a traumatic incident while in primary school, reoccurring cancer treatment, and his parents’ divorce after incidents of family violence. The ICO assessment report describes this as a childhood and adolescence of “significant disadvantage and trauma”. The psychologist reports that the offender describes that his parents would argue and that “it did get physical a couple of times”. There was aggression, screaming, and his mother called helplines. The offender describes that it “frightened and scared [him]”.
He further describes that his father would hit him as a child and adolescent. He is quoted as saying “he did belt me. It made me feel horrible. Violated that someone would do that [sic] I loved”. The psychologist opines that the childhood and adolescence experiences described by the offender are experiences that “significantly impact on a child’s social and emotional wellbeing” and that the impact of disadvantage described in 1 the The Bugmy Bar Book applies to the offender. It is opined that the offender was exposed to disadvantage that significantly impacted his social and emotional wellbeing, and that it has resulted in developmental trauma.
The offender maintains supportive relationships with his family members. He moved into his father’s residence approximately one year ago and has secure housing available at this residence in the future. His father works in a professional role. He describes his
1 The Bugmy Bar Book, Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence (May 2024); The Bugmy Bar Book, Child Abuse and Neglect (June 2024). mother as a “very loving and caring person”. His mother is on a disability pension for an intellectual disability.
The offender engaged in schooling until during year 11. He recalls having had negative experiences at school. He initially did not have any friends at school and was socially isolated. He came to form friends and enjoyed living in a location in NSW, which occurred after he experienced a traumatic incident as a six year old (see below at [108]). His parents then separated in 2018 and he returned to the ACT with his mother and younger brother. He experienced teasing and bullying at school in the ACT. The offender describes that he “felt scared for [his] life all the time. It made [him] feel worthless”.
He has not engaged in further education or studies, and has no employment history. He has ongoing health issues (see below at [114]) and is in receipt of a Disability Support Pension.
The offender is a music artist, whose music is available through digital music streaming services, which provides him with a small income. He describes that his music “helps [him] get through things”. He enjoys playing video games. His social network is comprised of fellow musicians and people he knows from video gaming. He is restricted in the range of activities he can participate in due to ongoing pain arising from his medical conditions.
In 2020, when aged 18 years, he had a relationship with a woman aged 25 years and he would visit with her at her interstate residence, and supported her with her child. This relationship lasted for two months, with the offender describing that the relationship broke down as “I was too immature”. He describes that “it was hard” when the relationship broke down. His next intimate partner was the victim of the offending.
The offender is described in the ICO assessment report as having no history of alcohol or illicit substance misuse, but that he has smoked cannabis daily since he was 16 years of age. He has been prescribed cannabis since May 2023 to assist him with pain and nausea. The offender himself assessed his current mental health as stable, although attributed this to his prescribed cannabis and therapy.
The psychologist finds that the offender presents with a cannabis use disorder, having developed a significant dependency on cannabis and a pathological pattern of behaviours related to the use of this substance. It was not made clear how the finding as to the substance use disorder interacts with the offender being prescribed cannabis. In the absence of any contention that the disorder was not correctly diagnosed, I accept the psychologist’s finding.
The ICO assessment report finds the offender has a medium risk of general re-offending, and an above average risk of sexual reoffending. It recommends that the offender would benefit from continuing therapy sessions, which he is currently engaged with. The counsellor conducting these sessions, Mr Stephen Sedgwick, reports that the offender has embraced the concepts of accountability, ownership, and responsibility through their work, which has used recognised therapeutic tools. This is counselling that has occurred since September 2023, and has included sessions conducted while the offender was in custody. This counselling is also directed towards improving the offender’s mental health.
The psychologist opines that the offender’s prospects of rehabilitation are positive and that, if provided with the appropriate supports and treatments, the offender has the ability to make positive gains. The psychologist considers the offender to be a “low risk to reoffend”. It was not entirely clear to me whether that assessment of risk was if the treatment and healing plans were implemented, or irrespective of that. The psychologist does explain that her opinion is based on the fact that the offender expressed: [S]ignificant remorse for his behaviour and empathy for the victim. He expressed a strong desire to make positive changes to his life. [The offender] is willing to engage with supports that will enhance his wellbeing and will in my opinion have a positive impact on [the offender’s] ability to develop prosocial coping skills, enhance self-esteem/confidence and further develop his resilience and stress tolerance to unpleasant thoughts and feelings. Remorse and insight
The ICO assessment report provides that the offender did not clearly state if he “agreed or disagreed” with the police statement of facts. This aspect is of little consequence as it was referring to facts that are not the facts the subject of sentence. However, the ICO assessment report further provides that the offender is described as claiming that he had been under the impression the victim was aged 16 years, and he stated that the relationship had been mutual. This report then provides that the offender was able to demonstrate some victim empathy, and did recognise that his actions had been unlawful. He is said to have attributed his offending behaviour to emotional stress at the time and the need to build a connection with someone.
The psychological report includes that the offender describes that he thought the victim looked 19 years of age when he first spoke to her, and he didn’t know that she was 13. He thought the victim was a senior as she was in the library. It is not clear how this fits in with the agreed facts as to how the victim and offender met, but the prosecution did not make any submissions as to this and so I will regard it as not of consequence. The offender is described as saying that the police told his mother the victim was 13 years of age and that he was “heartbroken that [he] didn’t know the full truth”. He said to the psychologist that he never understood how serious the relationship was, that he was very sheltered growing up, and he was not really given any guidance in this regard. As to the first video, he stated he was unaware of the age of the victim or how drug affected the victim was and that at the time he didn’t think he had done anything wrong.
In relation to the offence of assault, the offender said that he was “feeling really crook” and he didn’t understand how to deal with it. He describes that his feelings “get so strong on top of [his] health stress” and that he would “never do that [the assault] again”.
The psychologist reports that the offender now understands the seriousness of the offences and that he said: Its shit and its gross. I jumped into this not knowing. It’s not right. I get it now. I have learnt a lot from this. I recognize this was very impactful on her. I am very sympathetic. Talking about it makes me feel sick. I understand the seriousness of it and the legal stuff now. It has hurt me like crazy.
The statements to the ICO assessors need to be understood in the context of the cognitive challenges that the offender exhibits (see below at [126]). Nonethless, they give pause as to the extent of insight into the offending and emphasise that the need to reflect deterrence, even though the offender is youthful, and community protection in the sentencing order is by no means eradicated.
Time in custody
Submissions
Youthful offender
The offender was 20 years of age at the time of the offending, and also, per the opinion of the psychologist, is someone who presents with “emotional immaturity”, and who is “stuck in the adolescent phase of development” (see further below at [126]).
I accept the submission made that the principles applying to youthful offenders (R v Stephens [2024] NSWCCA 170 per Hamill J at [19]-[20]; Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[36]; DPP v Doughty [2023] ACTSC 397 at [101]; Forster- Jones v The Queen [2020] ACTCA 31 at [64]) not only apply but should be given significant weight in this matter. That is, I recognise that the offender lacked the degree of insight, judgment, and self-control that an older offender would have in the circumstances, and that there is, as a result of his youth, and with treatment for this particular offender, a likelihood of rehabilitation from sexual offending.
The principles as to youthful offenders also provide that the effect of incarceration in an adult prison will more likely impair, rather than improve, the prospects of successful rehabilitation. I accept this, and have found this particularly informative in the decision as to the appropriate time that the offender ought to be released from custody.
Experiences of disadvantage and trauma
The psychologist finds that the offender experienced trauma as a child. He was exposed to significant trauma in the context of relationships, and significant trauma associated with his health (see further below at [113]). [Heading redacted] 2 [Paragraphs 107 to 111 redacted]
As to the applicability of this to the offender, it was submitted that this is informative to the finding of the offender’s background of trauma. I accept this.
Physical health conditions and custodial environment
The offender has battled several types of cancer since the age of 12 years, whilst in year 6. This has involved major surgeries which have resulted in psychological trauma. The first occasion of cancer treatment involved two surgeries, involving removal of two ribs and part of the lung. In 2020, while in year 11, he developed another form of cancer which again required surgery. This has caused him to have a chronic condition which requires medication which causes physical symptoms including that he “feel[s] sick quite a bit”. In 2023, the offender was again diagnosed with cancer. He required surgery and radiation.
While the offender has been in remission since April 2023, he remains on numerous prescribed medications. He experiences discomfort and pain from the scar tissue and
2 [Footnote redacted] associated nerve pain. As at the time of the ICO assessment, the offender reported experiencing pain, muscle spasms, and fatigue.
The information from Dr Susan Wigg, the offender’s endocrinologist with the Canberra Hospital Diabetes Service, provides that as at a review of 4 February 2025, the offender is “clinically much improved”. However, he requires ongoing blood tests and ultrasound monitoring, and there is a prospect he will again require radioactive iodine treatment, and he may need further surgery in the future. The radioactive iodine treatment requires a particular form of care, and an inpatient stay in hospital.
Dr Wigg describes that during the offender’s stay at the Alexander Maconochie Centre (AMC) in 2024, there was a lack of supervision with medications which resulted in instability with “TSH [not explained] and calcium levels”. This had negative consequences on the offender’s physical and mental health, with several presentations at the Canberra Hospital.
In addition to this information being relied upon as informative as to the trauma the offender has experienced, which I accept, it is relied upon for a submission that the offender will experience significant hardship from a custodial term. Dr Wigg provides that: I would be concerned that a return to jail would have a negative impact on Byron’s medical care. It may compromise the supervision of and his compliance with his important medications and this can have a detrimental impact on his thyroid cancer prognosis. It would also have a significant negative impact on his mental health, which in turn can compromise his compliance with medication and follow up.
Further, Ms Edwige provides that: The impact of a further custodial sentence on Mr. Mortimer’s physical and mental wellbeing would be significant. Mr. Mortimer has significant health needs that require ongoing management … A further custodial sentence in my opinion will have a profound impact on Mr. Mortimer’s mental health and social and emotional wellbeing. … Mr. Mortimer requires in my opinion significant support to address his mental health and have opportunities to work therapeutically [sic] address his trauma symptomatology in an environment that is safe and conducive to therapeutic change. He requires opportunities to reconnect to his culture and engage in healing practices to enhance his wellbeing.
I accept that the offender will experience particular hardship from a period in custody. This is plain even from the offender’s own, undisputed, account as to his experience in custody, this being: Because of my health I really struggled. Not getting medication when I needed it and not getting correct amounts. It was really bad. Feeling sick all the time. I was strangled around my neck. Really hurt because of the scars. Really frightened me. They put me in segregation and it made me feel like I did something wrong. I had to have pain meds for a while. It really hurt.
However, there was no submission made, as I understood it, that the AMC is incapable of providing the necessary care for both his physical and mental health. It does appear that the offender’s treating doctor is with the Canberra Hospital Diabetes Service, a health service that will be available to the offender if incarcerated: s 53 Corrections Management Act 2007 (ACT). It was submitted that a previous release on bail was not opposed by the prosecution in circumstances where the offender required radioactive iodine treatment, with it submitted to be implicit in the prosecution’s position at that time that the treatment could not be managed from a correctional facility. It is though speculative that any such further treatment will be required, and the opinion of Dr Wigg is not at a level of certainty that appropriate medical care is unavailable.
I also did not understand it to be submitted that the treatment recommendations that are recommended by Ms Edwige would not be available in the custodial environment. Ms Edwige recommends that the offender receive evidence based therapies to improve self-regulation and post-traumatic stress disorder (PTSD) symptoms. It is said that the offender would benefit from a referral to ‘Link-Up’ to learn more about his extended family and other connections by continuing to engage in music, and that he be supported to engage in an Aboriginal young person’s group to assist with emotional development and relational health. It was further recommended that a treatment plan be implemented that involves the offender continuing to access his EveryMan counsellor and that he be assessed by a psychiatrist to consider whether he meets the criteria for neurodivergence.
While I can accept, even without submissions to this effect, that such opportunities would likely be more readily available in the community, there is no basis on the information before me that appropriate therapeutic supports will not be available while in custody, nor ultimately upon any form of supervision upon release.
Nonetheless, I do, as observed, accept that the offender will experience particular hardship from a period in custody, with reference to both his physical and mental health. This is a further factor which is informative to the manner, and duration in fulltime custody, that is to be served.
Role of Bugmy and Verdins
The psychologist finds that the offender’s exposure to adverse childhood and adolescent experiences resulted in complex PTSD, substance use disorder, and major depressive disorder which were largely left untreated. This, and the offender’s childhood background and development, and his significant trauma associated with his health, are considered to be contributing factors to the offences committed. The psychologist opines that at the time of the offence, the offender had a mental health impairment that was clinically significant and arose from complex PTSD, substance use disorder, major depressive disorder, and autism spectrum disorder traits. His mental and physical health at the time of the offences had a significant impact on his ability to make considered and appropriate choices and impaired his ability to make reasoned judgments, think clearly, regulate his behaviour, and fully appreciate the wrongfulness of the acts.
The psychologist opines that the offender “presents with a lack of emotional development and self-control. This is referred to as emotional immaturity” and that the offender’s “presentation and interactions, in my opinion, are consistent with being stuck in the adolescent phase of development”. The offender’s conditions cause considerable social difficulties such as fear of abandonment, impulsivity, difficultly managing emotions, intense feelings, difficulties understanding the emotions of others, difficulty understanding social cues, and rigidity in thinking. The psychologist further opines that the offender experiences confusion in understanding social rules and the intentions of others and can therefore make erroneous assumptions.
The psychologist Ms Edwige concludes that: [I]t is my professional opinion that at the time of the offences, [the offender] was suffering from mental health disorders that were having a significant impact on his social and emotional wellbeing. It is my opinion, that [the offender’s] mental health at the time of the offences impacted on his ability to make appropriate and informed decisions.
On behalf of the offender, it is submitted that the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) and all of the limbs from R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) are enlivened. With reference to the opinions of Ms Edwige, I accept this. The prosecution did not submit against such a finding, but did submit that the Court be cautious not to ‘double count’ with a full reduction in the sentencing exercise in both regards: Henderson v The King [2024] ACTCA 3 at [57]-[58]. I accept this so far as it relates to the relationship between Bugmy and the limbs of Verdins, but it remains that there is a distinct mitigatory factor relating to the hardship raised from incarceration.
I also accept the submission made on behalf of the offender that the offending that occurred here is not in the nature of the predatory behaviour typically reflected in cases of persistent child sexual abuse. It was, as submitted, and I accept, behaviour that was the product of an emotionally immature and developmentally stunted 20 year old who did not, because of the presence of his mental conditions, fully understand the wrongfulness of his behaviour.
It remains though that, as observed in R v Miller [2019] ACTCA 25 (R v Miller) at [37]: It is a fundamental principle of sentencing that a sentence must be proportional to the objective seriousness of the offence. This principle of proportionality sets both the upper and lower limits of a sentence that may be imposed in the proper exercise of the sentencing discretion for a particular offence. Just as it would be outside the proper exercise of the sentencing discretion to impose a sentence more severe than the objective gravity of the offence permitted because the court believed the community needed to be protected from an offender, a court cannot impose a sentence so lenient that it does not reflect the objective gravity of the offence because of the offender’s subjective features. The subjective features of the offender are important, but they cannot justify the imposition of a sentence which does not adequately reflect the objective seriousness of the offending.
It also remains though, as submitted on behalf of the offender, that what was said in R v Miller ought be considered with reference to what was explained by McCallum CJ in DPP v Earle [2023] ACTSC 93 at [44], namely: Such comments are important for general guidance and in supporting consistency in sentencing, but they must not be hardened into immutable rules. To apply statements of broad application in that way would put a gloss on the terms of s 7(2) of the Crimes (Sentencing) Act and would subvert individualised justice and the process of instinctive synthesis that this Court is required to undertake in accordance with [the] decision of the High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357. Current sentencing practice and patterns
Both parties drew the Court’s attention to a number of authorities said to be relevant to current sentencing practice and patterns. This is relevant in accordance with both s 33(1)(za) of the Sentencing Act, and, for the sexual offences, s 34A of the Sentencing Act. Both parties also acknowledged, as the Court does, the limitations that authorities said to be comparable provide.
The authority relied upon by the prosecution with respect to the persistent sexual abuse charge that I have found of most assistance is R v Michalopoulos [2020] ACTSC 27. In that matter, the offender was 44 years of age, and befriended the 15 year old victim who lived with him. The unlawful relationship period was for five months, during which in a period of some six weeks they engaged in sexual intercourse every few days. They considered themselves a couple. There was initial denial of the offending, with the offending occurring contrary to a family violence order and sexual acts occurring at hotels after police intervention. With respect to the charge contrary to s 56 of the Crimes Act, carrying a maximum penalty of 25 years imprisonment, the starting point was six years imprisonment. The defence highlighted the significantly distinguishable feature of the age of the offender (being a 44 year old man) and the predatory nature of the offending. I accept this, and find it to be a more serious example of this form of offending. 133 ․ The prosecution additionally relied upon the authorities of R v EN [2019] ACTSC 354 (R v EN); R v Ashton [2022] ACTCA 45; R v Ware [2022] ACTCA 14; 17 ACTLR 273; R v Porter (No 3) [2022] ACTSC 236. None of these authorities are of assistance given the different applicable maximum penalties (R v EN), and the significantly distinguishable relationship between the offender and the victim and the nature of the sexual conduct involved.
The defence relied upon the following authorities that I have found of assistance with respect to the persistent sexual abuse charge: (a) R v Page [2022] ACTCA 65 in which an 18 year old offender engaged in an offence of maintaining a sexual relationship with his neighbour, a 15 year old girl. The maximum penalty was 25 years imprisonment. Sexual activity occurred over an eight month period, involving digital and penile penetration, with some 30 episodes of sexual intercourse. On appeal, the Court of Appeal found a sentence of two years wholly suspended with 300 hours of community service to be manifestly inadequate, but dismissed the appeal in an exercise of the residual discretion. The Court indicated that a sentence of three years and 9 months imprisonment, with a suspension after nine months was warranted. This authority has less serious features in terms of the sexual activity and the age of the offender, but it has the aggravating features of it involving a lengthier period of engagement and that the victim became pregnant. (b) DPP v Small (No 2) [2023] ACTSC 274 in which an offender, then aged 21 to 23 years, engaged in an offence of persistent sexual abuse with a child known to him through the victim’s brother and who was aged from 11 to 13 years. There were seven to eight discrete incidents, with digital penetration on two occasions. Significantly, the applicable maximum penalty was only seven years imprisonment. The starting point for the sentence was two years and six months, suspended after a period of six months. Despite the young age of the victim, this is a less serious example of the offence.
I have otherwise considered the authorities relied upon on behalf of the offender in which sentences other than ones involving fulltime imprisonment have been imposed for sexual offences, where the offender was either young or youthful: R v Haven [2022] ACTCA 61; R v Horton-Hegarty [2018] ACTCA 22; R v Smith (a pseudonym) (No 2) [2020] ACTSC 260; R v CN [2020] ACTSC 282; R v NL [2018] ACTSC 22; R v EO [2017] ACTSC 138; R v CV [2013] ACTCA 22; 233 A Crim R 67. I particularly draw from these authorities the prominence of reflecting individualised justice in the sentencing exercise. While this is a legislated consideration when sentencing young people (s 133C Sentencing Act), which does not apply here, I accept that it is still of prominence with reference to this offender’s subjective circumstances.
With respect to the remaining offences, the authorities I have found of most assistance were R v Whittaker [2021] ACTSC 189, albeit the offender was much older, and DPP v Gottaas-Hughes [2023] ACTSC 85, although the exploitation material did not involve penile penetration.
Totality
The agreed facts provide that Count 1 embodies all conduct engaged in as part of the “sexual relationship”. I understand this to mean that Count 3 is to be regarded as part of the conduct establishing Count 1, although it is separately charged. A large degree of concurrency is therefore appropriate with respect to these two offences.
Count 15, being of a physically violent nature, would not appear to fall within the description as provided in the facts as being part of the sexual relationship, albeit the physically violent conduct that occurred is capable of falling within the definition from s 56(2)(a) of the Crimes Act as to what constitutes a ‘relationship’ for the purposes of that section. I consider it appropriate that a level of concurrency is appropriate, but not to a significant extent, to reflect the distinct nature of this conduct.
Consideration
It was submitted that this case is significantly different to other cases involving a charge against s 56 of the Crimes Act and that accordingly a material difference in both the length and type of sentence ought be imposed. I accept that this case has some different features to other cases of this type and that, as submitted, this matter involves a difficult sentencing exercise.
As will become apparent, after the reduction for the pleas of guilty, the individual sentences may not be an impediment to an ICO being an available sentencing option: s 11(3) Sentencing Act. It is apparent that the offender would be likely to comply with such an order. He was found suitable for an ICO by Corrective Services and is described as being responsive to and compliant with requirements during the assessment period. His engagement with the therapeutic providers was also described as involving positive engagement. His accommodation has been assessed as suitable for an ICO. He has demonstrated a strong capability to comply with onerous bail conditions. He was also assessed as suitable for a community service work condition, although I do not consider such an order would be appropriate, in any form of order imposed, having regard to the subjective circumstances of the offender.
It was submitted on behalf of the offender that the criminogenic risks exhibited by the offender are the kind that an ICO is designed to address. I accept this. But, I do not accept that an ICO is capable of reflecting the objective seriousness of the offending that occurred, nor would it fulfill the statutory purpose of punishment: R v Ngerengere [2016] ACTSC 299 at [23], citing Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 at [72]. This is so even when the gravity of the offending has regard to the offender’s youth and his reduced moral culpability.
It was further submitted that because of the offender’s youth, rehabilitation should be given prominence in the sentencing exercise, with a focus on that rehabilitation. I accept rehabilitation has an important role, and, as already observed, so does individualised justice. The constellation of mitigatory factors that arise here are informative as to both the duration of the sentences to be imposed, and the manner in which they are to be served. But they are not such that they eliminate other important sentencing purposes. This includes that deterrence and community protection remain of relevance, even with the prospects of rehabilitation, as does denunciation of the conduct, accountability and recognition of the harm done to the victim.
The prosecution submitted, as is routinely included in prosecution written submissions, that if the Court imposes a sentence of imprisonment for a period of 1 year or longer the Court must set a non-parole period in accordance with s 65 of the Sentencing Act. However, subsection (6) provides that “if the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section”. That is, a nonparole period is not mandatory for a sentence longer than 1 year if a partially suspended term is imposed: s 12(2) Sentencing Act. In the event it is necessary to consider and is of application, s 65(4) also does not mandate that a nonparole period be set. The offender’s antecedents here tend against such a course.
I consider it appropriate that there is a partial suspension of the sentence of imprisonment. While the suspended term will not have the level of supervision that an ICO would have provided, the offender will have the strongly deterrent effect of a return to custody if he fails to comply with the good behaviour order.
A partial suspension of the sentence will enable the offender to have certainty of a release date which will more appropriately facilitate his health conditions and his rehabilitation. As already observed, the offender presents with prospects of rehabilitation, and a capability to comply with a community based order. He will experience the strongly deterrent effect of a period in fulltime custody. There is reason to have confidence that the offender will thereafter engage appropriately with community supervision, and community protection can be maintained, without the more intensive oversight and supervision that a parole order would entail.
I do not propose to include any recommendations as to the therapeutic interventions that will form part of the good behavior order upon his release, it being a matter that is best determined by Corrective Services, with reference to the comprehensive material available in that regard, at the time of release from custody.
Orders
I certify that the preceding one hundred and forty-seven [147] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date:
DPP
Mortimer [2025] ACTSC 168