DPP v Smith

1. The offender, who is identified by the pseudonym “Jeremiah Smith”, has pleaded guilty to maintaining a sexual relationship with a young person under his special care (CAN 875/2025). He is identified by a pseudonym in order to protect the identity of the victim of the offending.

2. The charge to which he pleaded guilty was a contravention of s 56(1) of the Crimes Act 1900 (ACT), which criminalises persistent sexual abuse of a child or a young person under special care. There was a dispute between the parties as to the maximum penalty under that provision applicable to the offender. Immediately prior to delivering these reasons, I published my reasons for determining that the applicable maximum penalty for the offence for which the offender is to be sentenced is 25 years’ imprisonment: see DPP v Smith (a pseudonym) [2025] ACTSC 500.

3. The offending occurred between March 2013 (when the victim of the offending was 14 years old) and November 2016 (when the victim turned 18). During this period, the offender was between 32 and 36 years old.

4. During the period of the offending, the victim was both a “child” and “a young person under [the offender’s] special care”. In response to an enquiry from the court following the sentencing hearing, the offender expressly accepted that he was to be sentenced on the basis that the offending covered both the period during which the victim was a child and the period during which she was a “young person under [the offender’s] special care”, notwithstanding that the charge to which the offender pleaded guilty only referred to the victim being a “young person under the special care of [the offender]”. Further, he expressly accepted that, in the period when the victim was between 16 and 18, she was a “young person under [the offender’s] special care” when the offending occurred, notwithstanding that, during part of that period, she was in the foster care of another person.

Facts

5. The parties agreed the factual basis upon which the offender was to be sentenced. I find the facts in accordance with the agreed statement of facts which was included in the prosecution tender bundle. The agreed statement of facts is very detailed. What follows is a summary of the circumstances involved in the offending.

6. At the end of 2011, the offender and his then wife received an offer to become foster carers for the victim, who was then 13 years old. This placement was arranged through the Marymead Foster Care Program. The offender and his wife had two other children who, in 2012, were aged six and four years old.

7. The victim first met the offender and his family in April 2012 and subsequently moved in with them. In 2012 and 2013, the offender developed a particularly close and affectionate relationship with the victim. His wife raised some concerns about the victim being attached and physically affectionate towards the offender. The offender engaged in what, in retrospect, can be seen as grooming behaviours which are described in the agreed statement of facts.

8. The first sexual acts occurred in March 2013 on a camping trip at the Cotter Campground. While sleeping in conjoined swags, the offender touched the victim indecently, and then took a hold of her hand and dragged it down toward his pants. At that stage, the victim was 14 years old and the offender was 32 years old.

9. During the week following this incident, back at the offender’s home, the victim was woken one night when the offender approached her bed. He climbed part of the way up the ladder to her bunk, moved his hand to her pants and began rubbing her vagina through her pyjama shorts. He then took her hand and moved it until it was underneath his shorts. He guided her hand up and down on his penis until he ejaculated.

10. A few days later, he came into her bedroom at night again. He woke her up. He pulled his pants off and told her to take hers off. He lay down on the floor and had penile– vaginal intercourse with her to the point of ejaculation.

11. The next day, the offender and the victim had a discussion. The victim told him he needed to get her the morning after pill, which he did. She was 14 years old at the time.

12. Over the following two years, the offender treated the victim like a girlfriend. He told her he wanted to marry her and saw a future for them together. They would have sexual intercourse weekly.

13. In July 2013, the family moved into a new house. The offender told the victim that he wanted to marry her and start a family but would have to wait until she turned 18. He indicated that he knew that the relationship was illegal. The victim was 14 years old. The offender and the victim were having sexual intercourse nearly every day. The offender bought sex toys for the victim.

14. On one occasion, when the victim was 15 years old, the offender’s wife went away for the weekend. On one of the evenings, the offender had sexual intercourse with the victim on multiple occasions. The offender did not use protection at any time, and told the victim this was because he had a vasectomy (an inpatient summary tendered by the offender indicated that this had occurred in late 2009).

15. On another occasion, in the second half of 2014, when the victim was either 15 or 16 years old, the offender, a friend of his and the victim stayed at a hotel in Campbelltown. The three of them shared a room. The two beds were pushed together to form a single bed. The offender and his friend had been drinking. While the victim was attempting to sleep, the offender began touching her. He got on top of her and then had penile–vaginal intercourse with her. After that, his friend also began penile–vaginal intercourse with the victim but could not continue as he could not maintain an erection.

16. On another occasion, when the victim was 16, the family was visiting a property in Burra, NSW. The victim slept in the same bed as the offender and, when she woke up, he engaged in penile–vaginal sexual intercourse with her.

17. Throughout the time, the victim felt that she was loved, a feeling that she had not felt before.

18. The offender’s marriage to his wife broke down and they separated at the end of 2014. Following the breakdown of the marriage, the victim lived with another foster family from January to December 2015. The offender was living in Sydney.

19. The offender and the victim communicated electronically. The offender encouraged her to send photographs of herself in various states of undress. She was 16 years old at the time. While living with the new foster family, she would visit the offender at his apartment in Maroubra, NSW. When the victim was visiting the offender during this time, the offender engaged in sexual activities with her almost every night, sometimes initiated by him, sometimes initiated by her.

20. In late 2015, the offender was approved as a kinship carer for the victim. He moved back to the ACT and he and the victim lived as a “domestic couple”. The victim also took responsibility for looking after the offender’s children when they stayed over, but hid from them the fact that she and the offender were living as a “couple”. The offender had sex with her every day.

21. The victim turned 18 in November 2016. After this occurred, the offender took her on a th trip to Sydney and proposed to her. Sometime after the victim’s 20 birthday, a friend of the offender told the victim that she “needed to get out” and dropped the victim off at her biological mother’s house. The victim had no further sexual contact with the offender after that time.

22. In July 2023, the victim reported the abuse to police. Victim impact

23. The victim has provided a victim impact statement. The victim said that she grew up without safety and stability because her mother could not take care of her and her father died when she was two years old. She described herself as a little girl searching for someone to keep her safe, but instead, she was taken advantage of. She said that the years of abuse have changed everything about her. She said that the damage did not end when the abuse stopped and it affects how she sees herself and how she sees others. It has affected her capacity to trust people, often assuming the worst about them. This affects her capacity to have relationships with people.

24. She is now a mother, but lives in constant fear that someone could harm her daughter just as she was harmed. She wants the court to understand that what happened to her as a child has changed her forever.

Objective seriousness

25. The offending is very serious. The sexual intercourse did not involve any significant risk of pregnancy as the offender had a vasectomy. The relationship did not involve any violence or physical abuse beyond the sexual acts themselves. However, the relationship was a long-term sexual relationship with a young person to whom the offender owed parental duties. This involved a gross breach of trust and abuse of a parent-like relationship.

26. The sexual acts occurred during the relationship over the whole of the period charged. Those acts are identified as having occurred on specific occasions as well as by reference to periods when sexual acts occurred on a weekly or daily basis. In particular, the statement of facts records the offender having sex with the victim on a weekly basis from the age of 14. From July 2013, when the family moved into a new house, sexual intercourse was occurring “nearly every day”. This was in addition to the specific occasions of sexual intercourse recorded in the facts, including the events which occurred in the hotel in Campbelltown, where the offender had intercourse with the victim, and after the offender had finished, the offender’s friend (who was staying in the same room and sleeping in the same joined bed) engaged in penile–vaginal intercourse with the victim.

27. It is possible to give some numerical basis to the offending involving sexual intercourse disclosed in the agreed statement of facts. Even if, contrary to the agreed statement of facts, intercourse only occurred weekly — over the period from 30 July 2013 (when the family moved into a new house) up until November 2016 (when the victim turned 18), a period of three years and three months — and excluding entirely the 11-month period when the victim was in the foster care of another person (January 2015 until December 2015), then the total number of weeks during which intercourse with the victim occurred would be approximately 125. Thus, on this estimation, the “relationship” would have involved 125 incidents of sexual intercourse alone, and, as I have observed, that figure does not account for the periods where intercourse occurred more frequently or occurred prior to the family moving into the new house. This estimate assists in assessing the scale of the sexual misconduct over the period.

28. The offending is in the high range of objective seriousness for this offence.

Subjective circumstances

29. The subjective circumstances of the offender are disclosed in a pre-sentence report, psychological assessment report of Andrew Wong, a letter of apology and various other records tendered on his behalf.

30. The offender is now 45 years old. In April 2012, when the victim moved in with his family, he was 31 years old. When the victim left in 2018, he was 38 years old.

31. The offender was born in Tasmania. He had a positive upbringing notwithstanding that his family did not have much money. He has an older brother and younger sister.

32. The offender had done well at school but developed antisocial associations at about 14 or 15. He joined the Army at the age of 17 after completing Year 11 at school. He was deployed overseas in 2004, 2008 and 2020, achieving the rank of Warrant Officer, Class Two. He was involved in administrative work and was never in direct combat. He worked long hours and his strong attention to detail and high performance resulted from his perfectionist personality traits. He was voluntarily discharged from the Army in May 2025.

33. He met his first wife at the age of 22. They separated in 2014. Their two children are now 19 and 17 years old. Following their separation, he and his first wife shared equal custody of their biological children, and the victim was placed with another foster carer (until the offender became her kinship carer).

34. The offender met his second wife online, and she travelled to Australia from Kenya to continue their relationship in 2018. In 2022, the offender sponsored his wife’s seven-year-old nephew to come to Australia on a student visa. The offender and his second wife had a daughter in April 2024 but separated the following month.

35. The offender maintains positive relationships with his parents, siblings and his adult daughter. Prior to the sentencing hearing, he was living with his parents in Tasmania. His bail was revoked at the sentencing hearing and he has been in custody since that time.

36. He has no current problems with alcohol or illicit drugs. In his early years in the Army, he participated in the strong drinking culture, only slowing down six or seven years ago. In his early years in the Army, he would spend his whole paycheque on gambling, alcohol and cigarettes. He has tinnitus and some hearing loss arising from his employment in the Army. He suffers occasional sciatic nerve pain.

37. He has suffered periods of stress, depression and anxiety over the past 13 years. He began having panic attacks as early as 2000. In 2012, he attempted suicide. In 2013, he suffered an emotional breakdown due to marital issues, financial stresses, moving house and a poor work–life balance. He was treated by psychologists and psychiatrists. His obsessive personality traits and perfectionism have continued to affect him and he received treatment in 2016, 2018 and 2024. He is diagnosed by Andrew Wong, a clinical and forensic psychologist, as currently suffering from obsessive-compulsive personality disorder, generalised anxiety disorder and persistent depressive disorder.

38. The offender considers that his behaviour in relation to the victim was disgraceful and has expressed as much on multiple occasions, including to the victim herself. He has repeated that in his letter of apology to the court and to the victim. I accept that he feels remorse for his conduct and that his expressions of remorse are not merely self-interested expressions for the purpose of the sentencing process.

39. He is assessed by the authors of the pre-sentence report as being at a low to medium risk of general reoffending and a below average risk of sexual reoffending. His main criminogenic risk is identified as a history of somewhat poor mental health.

40. He has no criminal history.

Plea of guilty

41. The offender entered a plea of guilty in the Magistrates Court on 8 April 2025, after a brief of evidence had been prepared. In those circumstances, a reduction in sentence of between 20 and 25 percent is appropriate.

42. While the prosecution case was strong, I do not consider that it was “overwhelmingly strong” for the purposes of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Although counsel for the prosecution referred to the decision in R v Newby [2022] ACTCA 20; 367 FLR 122, the details of the prosecution case considered in that decision were very different to those in the present case. The description in that case of an acquittal being “realistically unlikely” (at [31]) needs to be read in the context of the facts of that case and cannot be substituted for the words in s 35(4). As a consequence, it is open to reduce the sentence under s 35 in a manner that I have indicated.

Time in custody

43. Prior to the sentencing hearing, the offender had spent no time in custody. Bail was revoked at the sentencing hearing and therefore the offender has been in custody since 1 October 2025. The sentence imposed will be backdated to take this time into account.

Comparable cases

44. The prosecution provided a table of cases involving sentences for offences under s 56 of the Crimes Act. I have had regard to those decisions, in particular the decisions of the Court of Appeal in R v Ashton (a pseudonym) [2022] ACTCA 45, R v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273, Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122, and my own decision in R v Kellan (a pseudonym) [2021] ACTSC 314 (although noting that the methodology adopted in that case was disapproved in Ware at [93]).

Consideration

45. As pointed out earlier, this is very serious offending over a long period involving the gross abuse of a parent-like relationship with a vulnerable child. The offending during the victim’s formative teenage years was life transforming for her. The offender was clearly conscious of his conduct being wrong. It was a manifestation of a commonly understood risk of placing vulnerable children with foster carers.

46. It is conduct which must be denounced, for which the offender must be held accountable and for which general deterrence must be a significant sentencing consideration. The sentence imposed must recognise the harm done to the victim and, through the offender’s abuse of the foster care system, to the community. Specific deterrence and rehabilitation are less significant sentencing considerations because the offender has recognised the disgraceful nature of his conduct and the risk of reoffending is low.

47. Pursuant to s 34A of the Sentencing Act, it is not open to reduce the sentence that would otherwise have been imposed because the offender has good character to the extent that the offender’s good character enabled the offender to commit the offence. I infer that his good character was one reason why the offender was identified as a suitable person to be a foster carer for the victim. However, I have taken into account his lack of other offending in assessing the risk of reoffending in future.

48. I accept that, as a result of his obsessive personality traits and other mental health conditions described in the report of Mr Wong, the offender is likely to find incarceration more burdensome than a person without those traits.

49. Given the maximum penalty is 25 years’ imprisonment, the starting point is 16 years’ imprisonment, reduced to 12 years and six months on account of the plea of guilty. The non-parole period will be eight years, which is 64 percent of the head sentence.

Orders

50. The orders of the Court are: (1) On count CAN 875/2025, the offender is convicted and sentenced to imprisonment for 12 years and six months, commencing on 1 October 2025 and ending on 31 March 2038. (2) The non parole period is a period of eight years, commencing on 1 October 2025 and ending on 30 September 2033.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: